matter of law bar them from relying upon representations made by defendants. Jackson v. Armstrong, 50 Mich. 65. The evidence presented issues of fact for the jury. See Merrill v. Newton, 109 Mich. 249.
In the deal plaintiffs received farm tools and live stock of considerable value. In the charge to the jury upon the measure of damages the court said:
"I charge you that the proper measure of damages would be the difference between the actual value of the land at the time of the purchase, and what its value would have been had it been of the quality and condition represented."
This left out of consideration the value of personal property received by plaintiffs, and was error. Plaintiffs contend that defendants not having requested the court to cover the subject in the charge should not now be permitted to raise the question. The statute, 3 Comp. Laws 1915, § 12632, permits error to be assigned upon the charge of the court, and defendants have not lost the right to be heard upon a matter so necessarily involved in the damages.
Errors are assigned upon excerpts from the charge. We have examined the whole charge and feel that there is no occasion to enter upon an extended discussion thereof.
For the error pointed out the judgment is reversed and a new trial granted, with costs to defendants.
STEERE, C. J., and MOORE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ., concurred.
ABILITY TO PERFORM-See SPECIFIC PERFORMANCE (20).
ABROGATION OF EXISTING CONTRACT RESTORES POWER TO CONTROL-See MUNICIPAL CORPORATIONS (3).
ABSENCE OF JUDGE FROM COURT ROOM-See APPEAL AND ERROR (7).
ABSOLUTE FEE-See DEEDS (2).
ABSTRACTS-See COUNTIES; EVIDENCE (1); RECORDS; VENDOR AND PURCHASER (7).
ABUSE OF DISCRETION-See EXCEPTIONS, BILL OF (2).
ACCEPTANCE-See SPECIFIC PERFORMANCE (7, 15).
ACCEPTING APPELLANT'S VIEW NOT ERROR-See APPEAL AND ERROR (20).
ACCIDENT-See MASTER AND SERVANT (13, 16, 25).
ACCIDENT OUTSIDE OF STATE-See MASTER AND SERVANT (6-10).
ACCOUNTING See PARTNERSHIP (4).
ACTION-See CONTRACTS (6); DRAINS (5).
ACTS OF DE FACTO OFFICER VALID See JUSTICES OF THE PEACE (2).
ACTS RELIED UPON-See CRIMINAL LAW (3).
ADEQUATE REMEDY AT LAW-See SPECIFIC PERFORMANCE (1).
ADMINISTRATIVE ACT-See DRAINS (2).
ADMISSION OF EVIDENCE-See ANNULMENT OF MARRIAGE (2); RECEIVING STOLEN GOODS (3).
ADMISSION OF HEARSAY TESTIMONY NOT REVERSIBLE ERROR WHERE FACT ESTABLISHED BY COMPETENT EVIDENCE-See MASTER AND SERVANT (14).
ADMISSIONS-See CRIMINAL LAW (14); MECHANICS' LIENS (3); PRINCIPAL AND SURETY (11).
ADMISSIONS AGAINST INTEREST-See DEEDS (8).
ADULTERY-See DIVORCE (5).
ADVANCEMENT-See EXECUTORS AND ADMINISTRATORS (4).
1. Plaintiffs' claim of title by adverse possession to a strip of land must fail where the testimony fails to show any claim of adverse possession or ownership by their predecessors in title, and they have occupied the premises less than 15 years. Robertson v. Boylan, 27.
2. Where plaintiffs' grantors did not convey to them any rights they might have acquired in said strip of land by adverse possession, plaintiffs could not tack their adverse possession to that of their grantors for the purpose of completing the statutory 15-year period. Id.
3. Where occupancy of a strip of land by plaintiffs' pred- ecessors in title began by consent of the owner, the statute of limitations giving title by adverse possession would not begin to run until the owner was notified that title was claimed adversely. Id.
ADVERSE USER-See EASEMENTS.
ADVERSE WITNESS-See WITNESSES (3).
ADVERTISING DRAIN-See DRAINS (9).
AFFIDAVITS-See APPEAL AND ERROR (7); ARREST; INTOXICAT- ING LIQUORS (2); MECHANICS' LIENS (8, 10-13).
AFFIRMANCE-See VENDOR AND PURCHASER (1).
AGE OF CONSENT-See MARRIAGE.
AGENCY-See PRINCIPAL AND AGENT.
ALIMONY-See CONSTITUTIONAL LAW (2); DIVORCE (2-4, 7, 9); STATUTES (3).
ALLIED OCCUPATION-See MASTER AND SERVANT (20).
ALPHABETICAL INDEX-See COUNTIES; RECORDS (1).
AMBIGUITY-See LANDLORD AND TENANT (1).
AMENDMENT-See APPEAL AND ERROR (16).
AMOUNT OF COMPENSATION-See Master and SERVANT (23). ANNULMENT OF MARRIAGE.
1. In proceedings by a wife for separate maintenance, where defendant filed a cross-bill for annulment of the marriage, 214-Mich.-45.
ANNULMENT OF MARRIAGE-Continued.
claiming coercion and threats, the findings of the court below that defendant was the father of plaintiff's child, and that he entered into the marriage contract to re- lieve himself from the consequences of his intercourse with plaintiff while under the age of consent, held, sup- ported by the record. Radford v. Radford, 545.
2. Where plaintiff had admitted, on cross-examination, that before meeting with defendant she had been intimate with other young men, the rejection of questions leading up to the solicitation of the act of intercourse in question, as not material, was well within the discretion of the trial court. Id.
3. Where plaintiff's father admitted, on cross-examination, that he wanted defendant to marry her, the rejection of the question as to whether he had made up his mind that if defendant did not do the right thing he would be prosecuted, held, not error, since witness' state of mind, not communicated to defendant, could not be said to have in any way influenced his action in marrying her. Id. 546. ANSWER NOT SWORN TO-See MECHANICS' LIENS (7). ANTICIPATED DEFENSE-See INSURANCE (1, 2).
1. The Supreme Court will not review a judgment against a railroad company for an assessment for benefits from a street improvement under 1 Comp. Laws 1915, §§ 4001, 4226, and the charter of the city of Grand Rapids (Act No. 593, Local Acts 1905), where the proceedings in form were regular, the defendant did not appear at any stage of the proceedings or make any objection thereto, and no bad faith is charged. City of Grand Rapids v. Grand Trunk Railway System, 2.
2. Where defendant failed to connect plaintiff with any efforts her attorney might have made in getting defendant out of the county, she was entitled to a directed verdict, and therefore defendant was not prejudiced by the submission to the jury of the question as to whether said attorney was connected with defendant's escape. McGill v. Cole- man, 60.
3. Where plaintiffs and certain of the defendants failed to appeal the Supreme Court is not at liberty to change or modify in their favor the decree of the court below. Hadley v. Henderson, 158.
4. Certiorari, and not error, is the proper remedy to review ordinance cases disposed of in the recorder's court of the city of Detroit. People v. Weber, 181.
5. In an action for the purchase price of certain cows, where defendant claimed damages by way of recoupment for the breach of a claimed warranty, said warranty consisting
APPEAL AND ERROR-Continued.
of the written statements of plaintiff in a letter to de- fendant that "in good condition I believe that they will weigh about 1,200 pounds," and "the cattle are all right in every way," and the trial judge, against plaintiff's con- tention that said writing was for the court to construe, submitted to the jury, under instructions favorable to de- fendant's contention, the question as to whether said state- ments amounted to a warranty, held, that, if any one has occasion to complain, it is not defendant. Selkirk v. Winfield, 205.
6. Where no claim was made at the hearing that the evidence as to the necessity for the proposed drain was unsworn, said complaint will not be considered in this court. Jean v. Moeller, 239.
7. On error, the Supreme Court must pass upon the record as presented, and where there is nothing in the record to show that the trial judge was absent from the court room during the trial of a criminal case, a conviction will not be reversed on the affidavits of the defendant and one of his attorneys that the trial judge was absent, filed on a motion for a new trial, especially where the motion was overruled and the record does not show any request that the trial judge file his reason for overruling the motion. People v. Kellar, 246.
8. Statements in defendant's brief that during the trial a political campaign was on in which the record of the present court for convictions of defendants on robbery charges was constantly brought before the public, cannot be considered by the Supreme Court where there is noth- ing in the record to indicate that anything said or done in the campaign found any echo in the court room or was reflected in the proceedings resulting in defendant's con- viction of the crime of robbery. Id. 247.
9. While the Supreme Court would not decline to give effect to a stipulation of all counsel, appearing in the record, it may not take counsel's claim that certain facts were admitted by opposite counsel, as amounting to a stipu- lation, where there is nothing to that effect in the record. Sandusky Grain Co. v. Borden's Condensed Milk Co., 307. 10. In determining the question as to whether the trial judge was in error in denying the motion for a new trial on the ground that the verdict was against the great weight of the evidence, the Supreme Court is not the trier of the facts, and may only reverse when it can be said that the verdict is against the clear weight of the evidence. Kane v. Detroit Life Ins. Co., 330.
11. Evidence reviewed, and held, that the verdict is not so manifestly against the clear weight of the evidence as to require reversal; nor does it appear to be the result of prejudice or the reception of improper evidence. Id.
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