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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