ing error upon them, according to the record they were submitted to. A later and different ruling was excepted to, but no error is assigned on it.

In the course of Rowland's direct testimony he stated that it was arranged between the railroad company and defendant that all freight consigned to defendant should be at once taken to defendant's yard, and that defendant should pay the railroad company the accumulated freight charges on four certain days in each month, and he explained the occasion and necessity for such an arrangement, and showed that it was reasonable.

On being cross-examined he said he was not present when the arrangement was made and only knew the fact from Mitchell, defendant's secretary, and from dealing and paying in that way for a long time. Plaintiff's counsel then moved to strike out all the testimony of this witness in reference to any contract made between defendant and the railroad company by which this delivery of cars was made, and on the ground that it appeared he had no personal knowledge on the subject. The court refused and an exception was taken. The motion was too broad. The court could not grant it without striking out lawful evidence for the defendant. It applied to matters, some of which were pertinent and within the personal knowledge of the witness. Hence, in this view,

the ruling was proper. Adams v. The People, 63 N. Y. 621. But aside from this the plaintiff was not prejudiced. The direction given to the jury deprived the point of whatever importance it might have had under any possible construction of the ruling facts.

We come at last to the essential question, and that is whether the plaintiff made out any case for the jury, and it is only necessary to recur to the correspondence as explained by the surrounding facts not liable to objection, to find an answer. The business was conducted in writing and was not left to inference or implication.

The defendant ordered eight car loads, or at the most 500 M., and the plaintiff, seeing the state of the market, was anxious to crowd the order. The defendant wished to stop with the amount contracted for, and this was mutually understood, and the plaintiff could not force the defendant to become a purchaser by precipitating unauthorized deliveries.

Finally the defendant carried acceptance up to the highest figures in the order, and which was in furtherance of the plaintiff's interest, and refused to go further. But the plain

tiff kept up a fire of consignments until the quantity in excess of the maximum number ordered reached 159 or 160 M.

As these extra shipments reached defendant's yard in precise obedience to the impression they had received from the plaintiff, the defendant in good faith and for the plaintiff's benefit took them in charge as goods consigned for sale but not purchased, and advanced the freight charges. It is plain the property in this lot did not pass out of the plaintiff, and his last letter previous to the fire imports sufficient to negative his claim. The shingles were so manipulated by the plaintiff that they stood in defendant's hands awaiting sale or his orders. And the freight charges were so much paid by defendant to the plaintiff's use. Their consignment, as the fact occurred, was tantamount to an order to defendant to pay these charges on plaintiff's account. Whether the odd 20 M. was taken out of the identical car next succeeding the eighth in the order of dispatch or of departure from the north, or in the order of arrival at Toledo, or in the order of arrival at defendant's yard, or were taken out of that one of the later arrivals which happened to be most convenient, is of no consequence. Eleven car loads were sent.

The defendant took 500 M., the outside quantity contracted for, and paid for them, and expressly refused to buy any more. The rest were piled up as consigned goods, on which the defendant, as consignee, had paid the freight charges, and they were lying in that shape for sale, or as subject to the plaintiff's orders. They were in the exact position to which the plaintiff's orders and directions had brought them, and were, there and in that situation, destroyed, without any fault of the defendant.

There is no error, and the judgment must be affirmed, with costs.

(The other justices concurred.)

LOUIS LAMORE vs. HARRIET M. FRISBIE and others.

Filed November 29, 1879.

Facts in this case considered, and held to establish the right of complainant to the land in question, and entitle him to a decree restraining defendants from prosecuting a suit in ejectment for its recovery, and compelling them to release their claims thereto.-(Ed.

Appeal from Berrien.

Edward Bacon, for complainant.

A. H. Potter, C. B. Potter and Geo. S. Clapp, for defendants.

CAMPBELL, C. J. Complainant filed his bill to stop an ejectment suit and compel a release from defendant of certain lands once owned by Elijah Pratt, deceased, and now claimed by defendant under his will. Complainant sets up a purchase from Pratt during his life-time, and payment in full under it, partly before and partly after his death. When Pratt died, in 1852, he left a will devising and bequeathing his entire estate for life to his widow, Lydia Pratt, and after her death to their adopted children, Clarissa Frisbie and the defendant, who is her brother, and who obtained a quitclaim of her interest. Lydia Pratt died in 1863. The ejectment was begun in 1877, and the quitclaim made just before.

Elijah Pratt purchased the property in question in 1850 of Edward Hart, subject to a mortgage to one Voorhees, for $100. Complainant's claim is that in 1851 Pratt made an agreement in writing to sell the land to him for $800, of which $100 was paid down, and $150 paid June 1, 1852, and $200 and interest paid to Rufus W. Landon, an agent of Elijah Pratt, in June, 1852. The remainder was paid or secured May 1, 1854, partly by the Voorhees mortgage which Lamore had taken up, and partly by executing to Mrs. Pratt a mortgage which was afterwards paid to defendant, to whom she had assigned it. On this settlement, of which a full memorandum was made by Mr. Landon at the time, and given to Lamore, Mrs. Pratt executed a warranty deed to Lamore for the expressed consideration of $800, and took back the mortgage just mentioned.

In the summer or fall of 1851, while Pratt was still in the place, an arrangement was made for the convenience of an adjoining mill, whereby the owners-two men named Hipp— exchanged six acres or thereabouts of their land for an equivalent out of the land owned by Pratt. This fact is admitted, and complainant sets it up as an arrangement made with and for himself, while defendant denies that he had any interest. At the time of the alleged contract Pratt and his family occupied the land, which exceeded in quantity a statutory homestead. After he went to California, in the fall of 1851, his wife moved back to a farm they had previously occupied in Pipestone, about two miles from the land in question, which which is in Berrien. Lamore went into possession in 1851, and has occupied or possessed it ever since.

Pratt's will, though admitted to probate, had appointed no executor, and no administration was ever had under it. Mrs. Pratt remained in the enjoyment of the estate until her death.

The defence, in addition to a general denial of the contract and of most matters set out by complainant, relied at the hearing on the homestead occupation as avoiding the contract, and also insisted that, assuming the memorandum of Mr. Landon to be true, the contract was made on Sunday, and a considerable payment made on another Sunday, which, it is claimed, avoided them. It is also insisted that Lamore never owned any interest beyond the life estate of Mrs. Pratt, which ended in 1863. It is also claimed that the contract is not set up or proved with certainty.

With the exception of one or two minor law points the controversy is chiefly one of fact. The homestead question does not seem to be of any importance. It is true that when the contract was made Pratt was in possession; no homestead had ever been defined out of the larger tract, and the removal of Mrs. Pratt to their old home in Pipestone, in pursuance of this arrangement, indicates that there was no intention to retain any homestead rights. Payments were made and taken after the removal, and Mrs. Pratt accepted the remainder in 1854, and set up no such claim. Neither is there any force in the objection that the contract violated the Sunday laws. The evidence does not indicate that any business was done on Sunday, but shows the contract to have been delivered on another day. The written date is not material. And while there is, we think, no reason to believe any payment was subsequently made on Sunday, yet, if it was, the money never was returned, and was allowed on the final accounting.

The contract is not set out in the bill in all its details, but it does appear distinctly what the consideration was, and that it was all paid. The usual course, on closing up such a contract, is not so uniformly in favor of retaining a fulfilled contract as to make it strange that the vendee is not able to produce it. The evidence of Mr. Landon, who drew it, is positive and clear as to all its material contents, and the proof shows that he acted as Pratt's agent throughout during his life, and for the widow subsequently. He reckoned up the amount paid and unpaid on May 1, 1854, and a settlement was made in accordance with the memorandum, which has been preserved. We think the case very fully and clearly made out, not only as to the contract and its fulfilment, but also as to the arrangement with the Hipps, which is shown to have been made with Lamore as the interested party, as well as with Pratt.

Under Pratt's will this money belonged to the control of

:

his wife, and payment to her was a good payment. There was no administrator, and no one but the widow to claim any interest in it. Sutphen v. Ellis, 35 Mich. 450; Proctor v. Robinson, Id. 291. On making payment to her Lamore was thenceforth equitable owner of the land, and entitled to full conveyance and specific performance against the estate. He could waive nothing by taking a conveyance from the owner of a part interest in the. legal title. He still retained a right to demand the remainder. There is nothing in the record at all supporting the theory that his rights in the lands originated in a purchase of a mere life estate. It is evident to us that he was misled by an erroneous notion that Mrs. Pratt, because she had a right to receive the money, had power to convey the entire fee. But this did not diminish his right as equitable owner of land fully paid for; and his possession was rightful as the true proprietor. It is not likely that there was any error made in computing the sums due at a time when all was within the personal knowledge of Mr. Landon, who had charge of the business. If there had been any such mistake it must have been trifling, and Mrs. Pratt had full authority to close the account.

We are not informed on what ground the bill was dismissed. The case seems to us very clear, and we have no doubt of complainant's title. We have not found it necessary to resort to any of the testimony of Lamore as to his personal dealings with Pratt, and need not discuss it.

The decree below must be reversed, and a decree made in accordance with the prayer of the bill, with costs of both

courts.

(The other justices concurred.)

PEOPLE ex rel. JOSEPH HUDSON VS. JUDGE OF SUPERIOR COURT OF DETROIT.

The following is the statement (f facts in the above entitled cause. It was received too late to be inserted in its proper place, with the opinion in connection with which it is to be read, for which see 3 N. W. REP. 850, (Mich. 544.)-[ED. N. W. REP.

MARSTON, J. March 14, 1878, Cauffman & Denkinspeil et al., residents of the city of Rochester, in the State of New York, filed a petition in the district court of the United States for the eastern district of Michigan, praying therein that Schott & Feibush, of Detroit, might be adjudged bankrupts. They v3—58 (no. viii) (913)