1. As to the defense of delay in notifying the bank after
discovery of forgery of payee's indorsement, and the effect
of said delay upon the bank's opportunity to protect itself,
this case is controlled by Houseman-Spitzley Corp. v.
American State Bank, 205 Mich. 268. Merchants' National
Bank v. Federal State Bank, 8.
2. Where the payees' indorsements upon certain checks were
forged and the proceeds placed to the forger's credit by
defendant bank, which indorsed the checks and they were
paid by plaintiff bank through clearing house, and the
maker of the checks suffered no loss, the forger having
reimbursed the payees, plaintiff bank, not being liable to
the maker, was not entitled to recover the amount of
said checks in an action against defendant bank. Id.
BASIS OF AWARD See MASTER AND SERVANT (20, 21).
BIDDING AT DRAIN SALE-See DRAINS (6, 7).
BLUE-SKY LAW-See CORPORATIONS (1).
BOUNDARIES-See ADVERSE POSSESSION (5).
BREACH OF AGREEMENT-See WILLS (6).
BREACH OF CONDITION PRECEDENT-See CONTRACTS (10).
BREACH OF CONTRACT-See CONTRACTS (6); FRAUDS, STATUTE
OF (4).
1. A broker who has notice of a seller's restricted title is
not entitled to a commission for the sale of the property
which fails of consummation only because the buyer re-
fused to take such restricted title. Gettleson v. Lewis,
113.
2. Where the question of the broker's notice of such re-
stricted title was disputed, it should properly have been
presented to the jury. Id.
3. A real estate broker in the employ of his principal, is
bound to act for his principal alone, using his utmost
good faith in his behalf. Lister v. Sakwinski, 121.
4. A promise by one of the principals in an exchange of
real estate, after the negotiations were completed, to pay
a commission to the other party's broker, to whom he
owed nothing, is void for want of consideration. Id.
5. A clause in a contract signed by the principals in an
exchange of real estate, acknowledging that certain bro-
kers had brought about the sale and agreeing to pay the
regular broker's commission, construed, in view of 3
Comp. Laws 1915, § 11981, and held, to be for the pur-
pose of making written evidence of agreement of the
parties to pay their respective brokers the commission on
their respective properties, and was no authority for the
broker of one principal to maintain an action for com-
mission against the other principal by whom he was not
employed. Id. 122.
6. Where plaintiff had procured a loan as a first mortgage
on a building he was planning to erect, but estimated he
would require an additional loan, and defendants as bro-
kers procured the execution of a contract between plain-
tiff and third parties whereby said additional sum was
to be placed in escrow to be available "according to the
terms and conditions of a certain contract executed by
and between" said first and second mortgagees, but said
last-mentioned contract was in fact never executed be
cause of disagreement between said first and second mort-
gagees, and said second loan was never consummated,
held, that promissory notes executed by plaintiffs to de-
fendants as commission for procuring said second loan
were void for failure of consideration. Newman v. Adels-
perger, 683.
BURDEN OF PROOF-See MASTER AND SERVANT (22).
BURGLARY-See CRIMINAL LAW (13).
CANCELLATION OF INSTRUMENTS.
1. On a bill by brothers of the grantor to cancel certain
deeds placing the title of certain hotel property in the
grantor and his wife as tenants by the entireties, the
decree of the court below dismissing the bill for failure
of proof, is affirmed on appeal. Taylor v. Taylor, 73.
2. On a bill to cancel a deed and an assignment of a mort-
gage, where the record shows that defendant was in-
debted to plaintiff and deeded to him 1161⁄2 acres of land
in partial payment of said indebtedness, said land and
40 acres retained by defendant being subject to a mort-
gage which was later foreclosed and the equity of re-
demption about to expire when plaintiff agreed to redeem
therefrom and to also cancel a $3,600 note and mortgage
which he held against the 40 acres if defendant would
convey to him said 40 acres, which plaintiff did without
disclosing that he had already deeded said 40 to his step-
son and had assigned to his brother a second mortgage
for $3,000 covering said 40 which he had purchased and
for which he had received credit from plaintiff, held,
that plaintiff was entitled to the relief sought, defendant
being the real party in interest. Klein v. Miller, 91.
3. On a bill for the cancellation of a deed executed by a
woman 83 years of age, the finding of the court below
that the grantor was mentally competent to execute the
same, held, supported by the evidence. Swan v. Stevens'
Estate, 694.
CANCELLATION OF INSTRUMENTS-Continued.
4. Held, that there was no evidence to support the charge of
undue influence. Id.
5. Where the deed itself is absolute on its face, and the
record contains ample evidence of a valid and adequate
consideration, a court of equity will not decree said deed
to be a mortgage. Id.
CASUAL EMPLOYMENT-See MASTER AND SERVANT (39)..
CERTIFICATE-See CONTRACTS (1).
CERTIFICATE, FAILURE TO FILE-See PARTNERSHIP (1).
CERTIORARI-See MASTER AND SERVANT (25).
CHARACTER WITNESS-See CRIMINAL LAW (6).
CHATTEL MORTGAGES-See EXEMPTIONS (1); SALES (1).
CHILDREN-See MASTER AND SERVANT (18).
CIRCUIT COURTS-See CRIMINAL LAW (23).
CIRCUMSTANTIAL EVIDENCE-See NEGLIGENCE (7).
CITIES-See JUSTICES OF THE PEACE (1).
CITY OFFICIALS-See MUNICIPAL CORPORATIONS (4).
CLAIMS FOR SERVICES-See EXECUTORS AND ADMINISTRATORS
(2).
COLLATERAL ATTACK-See HABEAS CORPUS.
COLLATERAL ISSUE-See PARTIES.
COLLISION-See RAILROADS (2); STREET RAILWAYS (2).
COMMISSIONS-See BROKERS (1, 4-6).
COMMON LABOR-See MASTER AND SERVANT (19).
COMPENSATION-See EXECUTORS AND ADMINISTRATORS; MASTER
AND SERVANT (6, 20, 21, 26).
COMPETENCY-See GUARDIAN AND WARD.
COMPETENCY OF GRANTOR-See CANCELLATION OF INSTRU-
MENTS (3).
COMPETENCY OF WITNESS-See APPEAL AND ERROR (11).
COMPUTATION OF AWARD-See MASTER AND SERVANT ̊ (21).
CONDITION PRECEDENT-See CONTRACTS (9).
CONDITIONAL ORDER-See APPEAL AND ERROR (20).
CONDITIONAL SALE-See SALES (1).
CONDUCT OF COURT-See CRIMINAL LAW (8); PERJURY (3);
TRIAL (3).
CONFESSIONS-See CRIMINAL LAw (34).
CONFLICT OF TERMS-See CONTRACTS (3).
CONSIDERATION-See BROKERS (4, 6); CANCELLATION OF IN-
STRUMENTS (5).
CONSPIRACY-See CRIMINAL LAW (9, 10).
A petition filed with the secretary of State to submit to
the electors at the next general election a proposed con-
stitutional amendment, and found insufficient for that pur-
pose, because lacking signatures, performed its office and
cannot be treated as a continuing petition, to be revived
from time to time by the addition of other names. Ham-
ilton v. Secretary of State, 371.
See JUSTICES OF THE PEACE (1).
CONSTRUCTION OF CONTRACT-See BROKERS (5); CONTRACTS
(3, 4, 8); EQUITY (2).
CONSTRUCTION OF LEASE-See LANDLORD AND TENANT (1).
CONSTRUCTION OF STATUTE-See DRAINS (1); EXEMPTION
(1); INSURANCE (4); MASTER AND SERVANT (2, 44).
CONSTRUCTION OF WILL-See WILLS (6-8).
CONTEMPT-See APPEAL AND ERROR (19).
CONTINUANCE-See CRIMINAL LAW (15, 26).
CONTINUOUS POSSESSION-See ADVERSE POSSESSION (2).
CONTRACT FOR INDEMNITY-See NEGLIGENCE (12).
CONTRACTS.
1. Where a contract to erect a building was signed by part-
ners in their individual names, with no partnership name
stated nor reference made to a partnership, said contract
was not void, although no certificate of copartnership had
been filed with the county clerk as required by Act No.
164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.).
Rossello v. Trella, 20.
2. In an action to recover the purchase price of 13 bags of
beans which plaintiff purchased from defendant and paid
for in advance, evidence that the beans were shipped
subject to inspection, that plaintiff surrendered to the
railroad company the order bill of lading which had been
indorsed to him, and, without inspecting the beans, re-
moved them to his warehouse on June 28th, held, to war
rant the finding of the court below that plaintiff by his
conduct accepted the beans and was precluded from there-
after claiming a right to recover because inspection "some
time in July" disclosed that they were spoiled. Lieblein
v. Isbell Bean Co., 87.
3. If, construing the entire agreement, there seems to be any
difference in meaning between the preliminary statement
and the agreement proper, the operative part, being clear
and unambiguous in meaning, must be given effect. Hans-
barger v. Hansbarger, 281.
4. The plain provisions of a contract for the sale of a house
and lot, that $50 deposited by plaintiff was but half of
the first payment, the sale to be closed when the other
half was paid, and "this deposit accepted subject to owner's
approval," held, to leave no room for construction. Zim-
merman v. Miller, 599.
5. Until approved in writing, a written agreement to sell
real estate, made subject to approval, depends for its
value, like an oral agreement to sell real estate, chiefly
on the integrity of the owner or his agent. Id.
6. If the writing was a valid contract to sell, which was
breached by defendant's refusal to proceed, plaintiff's
measure of damages was the difference in value of the
property at the time of the contract and its value at the
time of the breach, and not its value "at the present time."
Id.
7. The only evidence of damages sustained by plaintiff being
the $50 deposited with defendant, plaintiff was entitled
to a judgment for said amount, with interest, but with
costs against him. Id.
8. The intent of the parties to a contract in writing is to be
gathered from the instrument itself without extrinsic evi-
dence. Reed & Cheney Co. v. Richards-Wilson Co., 627.
9. A condition in a written contract that plaintiff is to ac-
cept and pay for fuel-saving devices if said devices save
25 per cent. of the average amount of fuel consumed dur-
ing the last three winters is a condition precedent; the
title to the devices in the meantime remaining in de-
fendants. Id.
10. Where defendants' contract to sell fuel-saving devices to
plaintiff failed for breach of a condition precedent, plain-
tiff could not recover in an action on a guaranty to save
fuel over a period of years, contained therein, since the
guaranty was as dependent on the sale as were the other
terms of the contract, and when the contract failed the
guaranty failed. Id.
See ATTORNEY AND CLIENT; BROKERS (4); CORPORATIONS (9);
DRAINS (7); FRAUDS, STATUTE OF (4); MUNICIPAL CORPO-
RATIONS (4); PARTNERSHIP (1); SALES (1),
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