31, 1886, settled up with Blakely, and took | did something more than was stated in said notes for the same, then this mortgage of request, and made some positive declaration plaintiffs is valid and binding as against de- of consent that the goods might go in under fendants." This request should have been the mortgage. The undisputed testimony, given as asked. The testimony was undis- and the acts of Robinson, which are not quesputed that the grain was billed to Blakely on tioned in the evidence, certainly raise a precommission of date June 19, 1886, being sumption that he did consent to the grain headed as follows: "ST. CLAIR, MICH., June going into the stock when he knew it would 19, 1886. Mr. J. M. Blakely, Agt. on Com- thereby, by the terms of the mortgage, be mission. Bought of E. C. Recor. Before covered by it, and it needed no consent in the settlement of July 31, 1886, the follow-words from him in aid of such acts. The ing bill was rendered by Robinson to Blakely: request was good law, as applied to the facts “Mr. J. M. Blakely, Agt., Goods on Commission, of the case, and the plaintiffs were entitled Bought of E. C. Recor, July 7, to balance.... 24, to 15 bbls. flour, 4.60..................... "26, to 10 bbls. flour, 4.60.. July 24, by cash....... $284 18 $399 18 On the back of this bill, in the handwriting of Robinson, was the following indorsement: "Rec'd of J. M. Blakely, one note, $100.00 for 10 days; one note, $100.00, for 20 days; one note, $149.18, for 30 days." It is also admitted by Robinson that at the time he made this settlement he knew of this mortgage, and that by its terms it would cover this grain and flour, if sold to Blakely, and put in the business. Here was certainly the strongest kind of testimony supporting plaintiff's claim, which was only explained on the part of the defendants by the testimony of Robinson that he made the bills in this way because Blakely wanted him to do so. It was also a conceded fact that the settlement was made July 31, 1886, for the flour sold after the mortgage was known to Robinson, as well as for the oats and corn, and that the attachment suit was brought on these notes, after they became due, and no steps taken to recover the property before suit brought. to it. The court made another serious mistake on the question of a demand of the goods taken under the attachment writ, before the replevin suit was brought. The jury were instructed that when the attachment was sued out by Mr. Recor, the sheriff, defendant Denton, had a perfect right, under the writ, as against Blakely and the plaintiffs, to take possession of the stock of goods, and to continue such possession until he had a reasonable time to make the inventory and appraisal of the same, "no matter whether this mortgage was good or bad, or whether he proposed to recognize it, or whether he did not." That a demand was necessary in this case, unless the jury were satisfied from the facts and circumstances of the case "that a demand would have been useless, would not have been complied with, as if the defendant Denton said or did something that convinced Blakely, and which was sufficient to convince Blakely, that no demand would have been complied with for the goods," and this must have taken place after the inventory was made, because they would have no right to demand the possession of these goods before an inventory and appraisal were completed. This is not the law. If the mortgage of the plaintiffs was a valid one, the sheriff, under this attachment writ, had The court refused to charge as requested, no right to levy on this property, treating the and he did not cover it in his general charge. mortgage as void, and in defiance of it. He The instruction in this respect was that the could seize the property subject to said mortjury must find that the agent of Recor, know-gage, and hold it for the purposes of invening the existence of this mortgage, and its tory and appraisal until he ascertained that being on file, consented in fact that these there was nothing over and above the value goods that he had already delivered, as well of the mortgage debt; but when he takes the as those that he should afterwards deliver, key of a store, and takes possession of goods should go into this stock, and be subject to upon which there is a mortgage on file in the lien of the mortgage, in order to entitle the proper office, and he is informed that the the plaintiffs to a verdict. "The mere fact mortgage is then a subsisting and valid lien alone that he made out bills at the request upon the goods, and--as there was testimony of Blakely, if you find that fact, that these tending to show in this case-the sheriff angoods which he represented upon the bills as swers that he "didn't care for the mortcommission goods, would not constitute such gage," and does not recognize it, or intend consent. It is a question of fact whether he to levy subject to it, the mortgagee is not consented that these goods should go into bound to wait until the sheriff has completed the stock, and be covered by the lien of this an inventory and appraisal of the goods,-a mortgage. This instruction did not meet period of several days in many cases. the case. The settlement and the taking of sheriff is a wrong-doer in the beginning. He the notes by this charge of the court cuts no has no right to take possession of the goods figure in the transaction, and the jury might and hold them for a moment in antagonism well have understood from the language of to the mortgage. He could be sued at once the court and the refusal to give plaintiffs' in trespass, and so can replevin be mainrequest that they must find that Robinson tained without demand, because the posses The sion of the sheriff is by his own showing not | of 40-pound paper, for the sum of $470.95, a lawful one. On the cross-examination of the witness Blakely it was shown by him, against plaintiffs' objection, that after the writ of replevin was executed he continued in the possession of the goods-which were delivered to him by the coroner, who served the writ-for two or three months, and carried on business, buying and selling goods in the usual course of trade. The evidence was admitted on the statement of the counsel for defendants that they had a right to show a special interest in the property, and also any misappropriation of the same, or anything done to the goods to their prejudice. The admission of this testimony was erroneous. The plaintiffs having given bond for the property, and received it, what they did with it afterwards was of no concern to defendants. There was no claim that this mortgage was in fact fraudulent, or that it was a void incumbrance after the date of its filing, except as a matter of law in reference to the value of goods sold to Blakely by defendants between June 10 and June 19, 1886. The issue, therefore, was confined to the state of things existing before and at the date of the commencement of this suit. Cary v. Hewitt, 26 Mich. 228, 237. The judgment must be reversed, with costs, and a new trial granted. The other justices concurred. which the defendants agreed to receive and pay therefor in said sum, upon completion. (3) Four thousand of these catalogues were to be printed with the name of Perkins & Co. and their place of business, Grand Rapids, Mich., appearing on the title-page, and on the various cuts in the 12,000 copies the words "Grand Rapids, Mich.," were to be omitted. (4) The contract provided that the plaintiff should do a good and workman-like job; a good job of the kind; a first-class job for the character of the work contracted for. (5) By the contract the defendants were to furnish the cuts to be used in making the catalogues, and, in order that the words "Grand Rapids, Mich.," should not appear in the 12,000 catalogues, it was necessary that either new cuts should be furnished, or that those words should be removed from the cuts. (6) The defendants instructed the plaintiff to cut out the said words from certain of the cuts, and from certain other cuts the defendants furnished their own engraver to remove the said words. The plaintiff followed the instructions of the defendants, and removed such words in the manner directed by defendants. (7) Four thousand catalogues were printed complete with the name Perkins & Co. and their address, delivered to and received by the defendants in April, 1885, and adjustment and settlement made between the parties hereto of the same. (8) The plaintiff, on May 1, 1885, in accordance and comM. A. TRUE PRINTING & ENGRAVING CO. pliance with the terms of the contract, and v. PERKINS et al. (Supreme Court of Michigan. Feb. 1, 1889.) APPEAL-REVIEW. Findings of fact by the trial court will not be reviewed by the supreme court, on error, when there is some evidence to support them. Error to circuit court, Kent county; R. M. MONTGOMERY, Judge. Assumpsit by the M. A. True Printing & Engraving Company against Halford J. Perkins and Willis J. Perkins, a partnership doing business under the firm name of Perkins & Co. Judgment for plaintiff, and defendants bring error. instructions of said defendants, printed, bound, completed, and tendered to the said defendants the remaining 12,000 catalogues, and performed the said contract on their part to be performed; and the defendants refused to accept the said 12,000 catalogues, or any part of them, and refused to pay for the same, or any of them. (9) The sum or price which the defendants agreed to pay the plaintiff for the said 12,000 catalogues is the sum of $353.96. The conclusion of law is: "The plaintiff is entitled to recover judgment against said defendants for the aforesaid agreed sum of $353.96, together with interest thereon from Taggart, Wolcott & Ganson, for appellants. May 1, 1885, at seven per cent." The court E. F. Uhl, for appellee. LONG, J. This is an action of assumpsit brought in the circuit court for Kent county, and the cause was tried before the court without a jury, and judgment rendered for plaintiff on July 1, 1886, for $382.87. Defendants bring error. It appears that, findings having been demanded, the trial court made the following findings of facts and law: (1) The plaintiff is a corporation organized under the laws of the state of Michigan, and engaged in the business of job printing. The defendants are copartners, doing business under the firm name of Perkins & Co., and are manufacturers of mill machinery. (2) About the 1st of March, 1885, the plaintiff agreed to furnish the defendant 16,000 illustrated catalogues, afterwards allowed two amendments to these findings, but they are not material to the questions now raised. Defendants' counsel proposed three other amendments, which were not allowed by the court. Exceptions were filed to these findings, and to the refusal of the court to allow the proposed amendments. All of the assignments of error, except one, are directed to the question that there is no evidence in the case to support the findings, and the refusal of the court to allow the amendments proposed by defendants' counsel. The evidence is set out in the bill of exceptions. The argument of defendants' counsel here is directed mainly to two points: (1) That there is no evidence showing that 12,000 catalogues were furnished defendants with the words "Grand Rapids, Mich.," omitted. (2) That the evidence is conclusive that the work on these 12,000 catalogues was not done "in good and workman-like manner; a good job of the kind; a first-class job for the character of the work contracted for." The court found that this was the contract under which the plaintiff was to do the work; and also found that the "plaintiff, on May 1, 1885, in accordance and compliance with the terms of the contract, and the instructions of said defendants, printed, bound, completed, and tendered to the said defendants the remaining 12,000 catalogues, and performed the terms of said contract on their part to be performed; and the defendants refused to accept the said 12,000 catalogues, or any part of them, or to pay for the same, or for any of them." There is no contention here as to what the terms of the contract were. It is conceded to be as found by the court. We need not go over the record, and point out the testimony sustaining the findings. There was evidence given tending to show the delivery or tender of these 12,000 catalogues to the defendants with the words "Grand Rapids, Mich.," omitted; and testimony also given showing or tending to show that the work was done in compliance with the contract and instructions of defendants. It appears that one of the defendants was in and out of the printing-office almost every day while the work was being done, and saw the work as it progressed. Instead of furnishing new plates with these words omitted, one of the defendants gave direction to cut the words out of the plates used on the first 4,000, and use them in printing the balance. He was told that this would not look well cut out in that way, and said that it did not make any difference; it had to come out anyway. These questions now raised here were in controversy on the trial. Testimony was given by both parties in relation to it, and the trial court found the facts against the defendants. These facts so found are supported by some evidence. The weight to be given to that evidence was for the court below; we cannot pass upon it. We need not discuss the other questions raised. We find no error in the record, and the judgment must be affirmed, with costs. The other justices concurred. PEOPLE v. BELLER. (Supreme Court of Michigan. Feb. 1, 1889.) INTOXICATING LIQUORS-SUNDAY LAWS. 1. Defendant was prosecuted for keeping open a bar in his garden for the sale of intoxicating liq uors, under liquor law Mich. 1887, § 17, making it unlawful to have open on Sundays any saloon, restaurant, bars in taverns, or elsewhere, where liquors are sold. The garden in question was provided with seats, and was resorted to for recreation, and the testimony on the trial referred to the bar within the garden as the place where liquors were handed out to be served to visitors. Held, that a charge that, if liquors were sold in such place on Sunday, then the "garden was not closed within the meaning of the statute," was not error, and could not have led the jury to suppose that keeping the garden open would be within the law, unless the bar was also open. 2. The principal dispute being as to the quality of the drink sold on Sunday at such bar, and it not being disputed that intoxicating liquor was sold there during week-days, a conviction will not be disturbed. Error to recorder's court of Detroit; SWIFT, Recorder. Geo. X. M. Collier, for appellant. Geo. F. Robinson, Pros. Atty., for the people. CAMPBELL, J. Respondent was convicted under section 17 of the liquor law of 1887, making it unlawful to have open on Sundays "all saloons, restaurants, bars in taverns or elsewhere, and all other places, except drugstores, where any of the liquors mentioned in this act are sold or kept for sale, either at wholesale or retail." The charge in the information was that he kept open the bar in his garden on Jefferson avenue, in the city of Detroit, where intoxicating liquors were sold at retail. The testimony which the jurors were allowed to act on tended to show that he had a garden connected with a dock and bath-houses, and adjacent to a building in which he had always a permanent bar for the sale of liquors; that the garden was resorted to in pleasant weather for recreation, having seats and other conveniences for visitors; and that in summer, and when it was warm enough, there was a separate bar from which liquors and refreshments were sold at some distance from the house, where the permanent bar was located. On the Sunday in question the garden was open as usual, and the garden bar was also open, and a drink which is claimed to have been made of barley and perhaps some other ingredients, and which it is insisted was not an intoxicating liquor, was the only liquor sold. It was drawn from a keg with a faucet, and this stood in or behind the bar. The court charged the jury that if intoxicating liquors were sold in this place on other days than Sunday, and people were permitted on the Sunday in question to go there and drink beer, or anything else, then the garden was not closed, within the meaning of the statute; or, if they sold intoxicating liquor there on that day, defendant was guilty. The language of the judge, speaking of not closing the garden, might have been liable to some exception if there had been any room for misapprehension. In one sense, the garden itself was a place where liquors were sold, but it was not treated on the trial as the place contemplated by the statute, which rather contemplates some building or receptacle, large or small, which may be closed to access, and not an indefinitely large open space to which the building is an adjunct. The information related only to the bar within the garden, and all the testimony referred to that as the place from which liquor was handed out to be served to persons scattered through the garden. We do not think there was any room for the supposition on the part of the jury that keeping the garden open would be within the law, unless the place in it where liquor was dispensed during the Jacob V. Rogers, (A. J. Mills, of counsel,) for appellant. Dallas Bondeman, for appellee. week was also open. That this bar was such | alleged negligence of defendant. There was a place as the law was meant to cover was a verdict and judgment for defendant, and indicated by the evidence. The testimony plaintiff brings error. tended to show that it was used just as ordinary bars are used, and adapted for the same purposes. The liquor sold was furnished as beer and similar drinks would be, and with the same facilities for substitution. The object SHERWOOD, C. J. The plaintiff in this case of the Sunday clause in the law is not merely seeks to recover against the defendant for to punish the sale of intoxicating liquor from personal injuries claimed to have been rethe bar, but to remove the danger that ad- ceived by him while attempting to cross the vantage might be taken of its being open to defendant's track on Broad street, in the vilsell clandestinely what in other days is sold lage of Plainwell, in the county of Allegan, openly. Access to the bar might easily be on the 6th day of September, 1886. It is his access to what is usually sold there, and the claim that, then and there, without any fault means of detection would not be adequate if on his part, he was struck, while attempting proof of the character of the liquor sold on to make the crossing with his horse and Sunday must be found in all cases. No one wagon, by an engine of the defendant runbut the owner can know, without search, ning at a very high rate of speed, thrown when and how he supplies his bar with liq- from his wagon upon the ground, and seuors, and where he puts them. If the bar it-riously injured, and his wagon was completely self is closed completely to access, or the room containing it is closed, where it is within a larger room, the end of the law is attained, and not otherwise. But if the garden bar was kept open, the only way to prevent access to it would have been to shut the garden itself; and as the bar was confessedly open, and the drinks sold were dispensed from it, the lan-level. The Grand Rapids & Indiana Railroad guage of the judge was well enough, and could harm no one. It was incumbent on respondent to close access to his bar completely, in one way or the other. The garden itself may have been, and apparently was, an entirely harmless place of resort, and with the bar closed would be as exempt from interference as any other open-air resort. We do not think the record indicates any purpose of holding to the contrary, as counsel seem to have supposed. Upon the testimony there was no particular dispute, except concerning the quality of the particular drink sold on that Sunday. It was shown without contradiction that intoxicating liquors were sold at the garden bar during week-days. No other conclusion could reasonably have been reached by the jury on that point. We do not think the conviction should be disturbed. The other justices concurred. CLOSE . LAKE SHORE & M. S. RY. Co. (Supreme Court of Michigan. Feb. 8, 1889.) RAILROAD COMPANIES-ACCIDENTS AT CROSSINGS. Plaintiff, while attempting to cross a railroad track in a village, was struck by an engine of the defendant running at a very high rate of speed. There was, in addition to the main track upon which the engine was running, a side track, filled with box cars, leaving only 30 or 32 feet of the street, which was 80 feet wide, open. There were also buildings, which were alleged to have obstructed the view of the approaching engine. Verdict for defendant was reversed on appeal. (By reason of the division of the court, no point of law was decided.) Error to circuit court, Allegan county; ARNOLD, Judge. Action by Charles Close against the Lake Shore & Michigan Southern Railway Company, for personal injuries sustained through destroyed; that such injury to his person and destruction of his property was occasioned entirely by the negligence of the defendant and its employes. There was a side track on defendant's road at this crossing, and the defendant's depot was not far distant. The grounds in the locality were comparatively also crosses the defendant's road, not far from the place where the injury occurred. The street which the plaintiff was traveling, where the defendant's road crosses it, was 80 feet wide. Beside the defendant's main track upon which the train was passing, and on the south-west side thereof, was its side track. This was filled with box cars on either side of Broad street, leaving an open space on the street of only 30 or 32 feet between, on which teams could pass; thus obstructing the street on either side of this passage from 24 to 25 feet, and, as the train was passing, the evening the accident occurred, from the south-east, there were buildings and other structures, which are claimed to have prevented a view of the train as it approached the crossing. It is for the negligence of the defendant in thus obstructing the highway with its cars upon its side track, and running its train at so high a rate of speed across this highway, that the plaintiff relies upon for a recovery. The case was tried before a jury in the Allegan circuit, and the defendant obtained a verdict. Plaintiff brings error. S. G. The errors assigned upon rulings in taking the testimony will be first noticed. Scott was sworn for defendant, and testified that he saw the accident when it occurred; that he was in the employ of the company at the time, and gave somewhat the details of what occurred. He was asked, on crossexamination, if he (witness) gave his opinion at the time that the company was careless in leaving the cars where they did, and did not say to plaintiff it was carelessness. This was objected to as incompetent and irrelevant, and the testimony was rightly ruled out for that reason. The station agent of the Lake Shore road stated upon the stand that he had looked and listened when cars were passing at the place where plaintiff testified he did not hear or see the train as he approached the track when injured. He was then asked what was his observation with reference to the coming train, which was objected to as immaterial. He also testified that he had arranged the cars as they were when the plaintiff came upon the track for the purpose of having them and the situation photographed, and was asked, "About how long ago was that?" which was also objected to as immaterial. We see no objection, or ground of objection, to either of these questions, nor to any others relating to the photographs, or to the taking of them, nor to taking the jury to Plainwell to view the premises, nor to the discussion had before the court about the matter in presence of the jury. The testimony relating to the photographs, and the photographs taken, were ruled out of the case by the circuit judge upon the trial afterwards, so that no harm could come from the ruling if wrong. where the accident occurred was not to furnish evidence upon which they were to give their verdict, but that they might better understand and apply the evidence given in open court in determining the issues presented. Chute v. State, 19 Minn. 271, 281, (Gil. 230;) Brakken v. Railway Co., 29 Minn. 41, 11 N. W. Rep. 124; Close v. Samm, 27 Iowa, 503; Wright v. Carpenter, 49 Cal. 609. In this same connection may be very properly noticed the ruling of the court in rejecting the testimony of plaintiff offered to be given by him in answer to the following question: "Could you see them [meaning the cars in the train, as he afterwards noticed them at the point where he stopped and listened just before he was hurt] in coming down from where you stopped to listen when they were coming down this side of the target?" Objected to as irrelevant, immaterial, and incompetent. The objection was sustained. We are inclined to think this testimony was competent. It was an item competent in making up his experience as to his ability to have seen the train which injured him in time to have avoided it. This was both relevant and competent, and its rejection might have been harmful error. At any rate, we have no means of determining that it was not, and in such case our duty is plain, and we must hold it was error to reject the testimony. The plaintiff gave testimony tending to show that defendant ran its train over the crossing where the injury occurred at a high rate of speed. Some of defendant's witnesses testified that it ran at a very low rate of speed, and others of defendant's witnesses testified that the rate of speed was the same as it had been during the previous 10 days when making the crossing. Plaintiff, in rebuttal, offered to prove what such rate was during the previous 10 days, and that it was at a high rate during all that time. This was completent rebutting testimony. It certainly tended to show, at least, that defendant's witnesses who testified to a low rate were mistaken. The rate of speed at which the crossing was made was certainly a material question in the case. Klanowski v. Railway Co., 57 Mich. 525, 24 N. W. Rep. 801. There was some testimony offered by the plaintiff in rebuttal when witness Finch was upon the stand, and which was excluded by the court, which it is more difficult to dispose of. It appears from the record that up to this time the defendant had offered testimony as to the situation of the premises at the time plaintiff was injured, including the situation and number of the cars upon the side track, and that upon his motion a view of the premises by the jury had been ordered and taken; that the night before, and at the time the jury were there, cars had been placed upon the side track, with a view undoubtedly of representing the true situation as it was when the accident occurred. The plaintiff asked the witness, (with a view of showing that the cars were not the same, and that their situation was different from what it was at the time of the accident:) "State if you noticed any freight cars upon the side track there." The witness was the officer who accompanied the jury to the place where the view was taken. The fact there endeavored to be shown was the distance of the freight cars from the street, and defendant objected to the testimony as irrelevant and immaterial. The One of the complaints plaintiff makes is changed situation was certainly competent to that the defendant obstructed the highway at be shown then, if at all. It did not exist the crossing in such manner as to shut out when plaintiff was making out his main case, the view and sound of the passing train, and and was therefore in its character rebutting. for this reason he was not warned of the danCounsel for defendant insisted that the dis- ger that overtook him, and his counsel asked tance of the cars from the street was within the court to give the jury the following inthe observation of the jury. There is no evi-struction upon this point: "That if they find dence, however, that they took any notice of from the evidence that on the 6th day of Septhis distance at all, or that their attention was challenged to it at the time they took their view. Whether this was so or not can make but little difference, as the witnesses were to be governed by the testimony given in the case in open court, where the parties may have an opportunity to test its credibility and correctness by examination, under well-established rules of testimony. The object in allowing the jury to take a view of the place tember, 1886, the plaintiff was driving his horse and wagon over Broad street, in the village of Plainwell, towards the Grand Rapids & Indiana depot, and was compelled to cross the track on the Lake Shore & Michigan Southern Railway in so doing, and that upon approaching that track he checked up his horse, and looked and listened for any train that might be traveling thereon, and used all reasonable care and caution before attempt |