had been instructed that there need be no intentional fraud on the part of defendant, "but it is sufficient if the plaintiff was actually misled, if a guaranty of the animal was made in fact." They had been instructed, also, that, as matter of law, the plaintiff had the right to rely on the statements of the defendant as to the condition and soundness of the mares. And further they were instructed

that,

"If you find, as a matter of fact, from all the evidence in the case that the defendant, or some one authorized in his behalf, stated to the plaintiff that the mares were sound, and that they did not have the heaves, or that they were with foal, such statements would be a warranty; and if any one of them is untrue, then the plaintiff is entitled to recover."

And:

"In other words, any distinct representation or proclamation of the condition and quality of the animals sold, made by the seller himself, or by his constituted agent, in his presence, at the time of the negotiations or the sale, which the said defendants intended, and which the purchaser at the time had reasonable grounds to suppose and believe was intended by the defendant, to effectuate the sale, and, in fact, the purchasers did so believe in making the purchase, and relied thereon, and on the truth thereof, and which was operative in effecting the sale, constitutes a warranty. It is not necessary to show that the seller at the time intended to deceive the purchaser in the sale, and the plaintiff is not required to show that the seller at the time knew the representations at the time to be false; he has the right to rely upon the representations and proclamations made."

These statements are disconnected in the charge. Some of them are, and others are not, specifically referred to in the errors assigned. We have read the entire charge, and cannot escape the conclusion that the jury may have understood, and probably did understand, from it that if they found representation of condition to have been made they might find a warranty of condition,

which was to be distinguished from a fraudulent statement; that if a warranty of condition was made plaintiff could recover; if not, and the representation as to condition was untrue, but based upon good reasons, no recovery could be had as for a fraud. We are constrained, therefore, to reverse the judgment and order a new trial. The defendant, under the declaration, should not be held liable for any damages resulting from the fact that the mare was not in foal, if the fact could not then be definitely ascertained, and if his representation was made in good faith, with good grounds therefor. No distinction can be made upon this subject, in this case, between a false warranty and a false representation. If conditions warranted the statement, it was not an actionable false warranty, nor an actionable false representation short of a warranty.

And the plaintiff's damages, upon this record, cannot be increased from the fact that he sought to buy a pair of mares for breeding purposes. His purpose in buying them is immaterial. We have examined, but do not comment on, other errors relied upon.

Judgment is reversed, and a new trial granted.

MOORE, C. J., and STEERE, MCALVAY, BROOKE, KUHN, STONE, and BIRD, JJ., concurred.

In re APSEY'S ESTATE.

APSEY v. DE YOUNG.

APPEAL AND ERROR-PROBATE APPEALS-DELAYED APPEAL-INTERLOCUTORY ORDERS.

A writ of error brought to review the order of a circuit court granting leave to appeal from the admission to probate of a will, after the time limited by statute, will be dismissed by the court on its own motion; since the order in question is merely interlocutory.

Error to Kent; Perkins, J. Submitted November 13, 1912. (Docket No. 60.) Decided December 17, 1912.

Alvin Apsey and another presented for probate an instrument purporting to be the last will of John Apsey, deceased. Jane A. DeYoung and other contestants asked leave to prosecute a delayed appeal from an order admitting the will to probate. An order granting the petition is reviewed by proponents on writ of error. Writ dismissed.

J. T. Preston (Charles E. Ward, of counsel), for appellants.

Grove & Davis, for appellees.

PER CURIAM. Petitioners and appellees applied to the circuit court for leave to appeal from an order of the probate court admitting to probate an instrument purporting to be the last will and testament of John Apsey. An order was made requiring appellants and others to show cause why the prayer of petitioners should not be granted. Many affidavits were filed and were considered by the court, and an order was made granting the right to appeal. Appellants sued out a writ of error to review this order

and determination, and have brought here the record made upon the said application for leave to appeal. The briefs do not discuss the practice which has been pursued, all parties appearing to be willing, if not desirous, to have this court in this proceeding approve or disapprove of the action of the trial court. At the hearing in this court it was suggested to the attorney for appellee, who alone appeared here, whether appellants had not mistaken their remedy.

Formerly such orders were reviewed in mandamus proceedings. The frequency with which the writ was applied for, the delays occasioned by such reviews, and the difficulty of formulating governing rules of decision were reasons which led this court to refuse to grant, as it formerly had done, its orders to show cause in cases in which the circuit court had permitted the delayed appeal to be made and was asserting jurisdiction to hear and determine the issues involved in the appealed cause. Cosgrove v. Wayne Circuit Judge, 144 Mich. 682 (108 N. W. 361). In the opinion filed in the case just cited, it is pointed out that, if a party is content to stand upon the objections raised to the order permitting the appeal, he may do so, and, after final judgment, may review the ruling on error. If he is not satisfied that his objections are sound, he will probably waive them, proceeding to a trial upon the merits. In any event, final determination of the cause is expedited, and no rights are waived, unless voluntarily. In no case has this court reviewed the interlocutory proceeding on writ of error.

The writ of error will be dismissed. Under the circumstances, we award no costs to either party.

FROHLICH v. INDEPENDENT GLASS CO.

1. SALES-BREACH OF CONTRACT-EXCUSES.

In an action for breach of a contract, defendant was not entitled to show, as an excuse for not shipping goods ordered, pursuant to agreement, that plaintiff had neglected or refused to pay an old account, as tending to prove a fraudulent attempt to secure the goods without any intention to pay for them where its refusal to perform was not based on such a reason and no testimony excluded had any tendency to show that such was the true reason for refusing to perform.

2. SAME-DAMAGES.

Prejudicial error did not appear from the charge of the court to the effect that plaintiff was not required, in mitigation of damages, to buy of any manufacturer not known to him in the ordinary course of his business, under undisputed testimony that there was only one concern of sufficient capacity that would fill his order at the time, and he purchased the goods of it.

Error to Wayne; Rohnert, J. Submitted November 18, 1912. (Docket No. 104.) Decided December 17, 1912.

Assumpsit by Simon Frohlich against the Independent Glass Company for breach of contract. After plaintiff's decease, Edward Frohlich and Hannah Frohlich, his executors, were substituted as plaintiffs. Judgment for plaintiff. Defendant brings error. Affirmed.

Julian G. Dickinson, for appellant.

Lucking, Emmons & Helfman, for appellees.

OSTRANDER, J. Plaintiff sued defendant for damages arising out of the failure of defendant to fill an order for glass according to contract. Upon a former trial, plaintiff recovered a sum less than he demanded. The judgment was reversed by this court. Frohlich v. Glass Co.,