ESTATES OF DECEDENTS-Continued. 10. The alleged failure of the executor to account to petitioner for one of the securities received by petitioner on the settlement and redelivered to him for collection, could not be tried in such proceeding: it was a personal issue between them, and did not concern the estate. Id. 11. In a suit by the administrator of an estate to set aside a conveyance, made by deceased to take effect at his death, of a life interest in his homestead to his widow and the remainder to his children by a former marriage, the deed was properly set aside as fraudulent to creditors, though the widow was the principal and largest claimant. Barris v. Emmons, 590. 12. The widow could not be held to have accepted the conveyance as payment of her claim because she caused it to be recorded after her husband's death, where there was no recital that payment was intended, nor did her act estop her from objecting to its validity unless the other grantees so acted in reliance thereon as to prejudice their rights if it was set aside. Id.. 13. Until her dower rights were assigned to the widow, she was entitled to occupy the homestead under 3 Comp. Laws, § 8929, 4 How. Stat. (2d Ed.) § 10921. Id. 14. The suit being instituted by the administrator to subject the property of decedent to the rights of creditors, the attitude of the widow was not controlling. Id. 15. The contention that the claim of the widow against the estate was a fraud, was res judicata, after her claim had been allowed by the commissioners on claims and allowed at reduced amount on appeal to the circuit court, from which judgment no further appeal was taken. Id. 591. See BILLS AND NOTES (6); WITNESSES. ESTOPPEL. A municipal corporation is not estopped from asserting the validity of a statute providing for special assessments, because it set up the claim in a previous suit brought against it by a third party that the statute was unconstitutional, the decision being based on other grounds, not determining the constitutional question. Cote v. Village of Highland Park, 202. See BANKS AND BANKING (2, 4); CONTEMPT (2); ESTATES OF DECEDENTS (12); LIENS (3); WATERS AND WATERCOURSES (8, 4, 8). EVIDENCE. 1. Evidence of accidents similar to the one that is in litigation, and occurring prior thereto, is admissible to prove both notice of the defect and negligence: subsequent occurrences are not, however, competent. Branch v. Klatt, 31. 2. And a general question calling for testimony as to accidents either before or after plaintiff's injury, and assuming, with EVIDENCE-Continued. out any basis, that certain disputed facts were proved, was correctly ruled out. Id. 32. 3. Testimony showing that plaintiff was an extra, not a regular, brakeman, that he had earned about $38 a month before he received the injury, that he had worked 16 days in one month, and 13 in another, that his expectancy was slightly more than 40 years, warranted the admission of a computation made by a witness showing the present worth of annual earnings at $800 a year the total that plaintiff could earn at the rate of wages he received. Sonsmith v. Pere Marquette R. Co., 58. 4. Testimony tending to show unusual or suspicious conduct of a witness whose testimony was taken by deposition was properly received in evidence, in an action for breach of promise, as affecting the credibility of the witness; since he was not present in court and his conduct could not be observed by the jury. Houser v. Carmody, 122. 5. Where the witness claimed to have been unduly intimate with plaintiff, and on his cross-examination a foundation was laid for impeachment by asking witness if he had bought a ring for plaintiff of a jeweler to whom he made disrespectful remarks concerning plaintiff, the jeweler was correctly permitted to give testimony in contradiction of the witness' denial, and plaintiff to show that she had been notified about the remarks made by the witness and had asked for an explanation and ceased to associate with him afterwards. Id. 6. Natural exclamations of pain made by plaintiff 30 minutes after her injury were competent, unless they amounted to narrations of past conditions. Pruner v. Detroit United Ry. 147. 7. When they are properly identified and their accuracy is proved, photographs of the place of injury are admissible, but pictures obtained after the accident should not be introduced without pointing out to the jury any changes that have occurred; the determination usually is of a discretionary nature, and rests with the trial judge. Id. 8. To prove the rate of speed of defendant's car it was not competent, after cross-examining one of defendant's motormen who testified generally that all its cars ran at the same rate in the vicinity of the place of the accident, to show by another witness that the witness had timed one of defendant's cars at that point on a certain occasion and it ran at the rate of 25 miles an hour. Puffer v. Muskegon Traction & Lighting Co., 198. 9. It is necessary to the privilege created by 3 Comp. Laws, § 10181, 5 How. Stat. (2d Ed.) § 12826, that the information offered as evidence was obtained by the witness in his professional character as a physician and was necessary to enable him to prescribe for the patient as a physician or to do any act for him as a surgeon: his testimony as to the patient's general health and mental condition is admissible. Steketee v. Newkirk, 222. EVIDENCE-Continued. 10. Testimony of an attorney, as to any matters not communicated to him in confidence by his client, is admissible in evidence. Id. 11. Letters written to a trustee of the estate of complainant's father, in which she had a beneficial interest, were not privileged, in the absence of evidence to show that such trustee was complainant's attorney. Id. 12. While it is competent to show previous offenses of the same kind as those of which a respondent is accused, in order to establish a particular intent, it is not permissible to show that respondent is, in general, a violator of the law, by proving other offenses under different circumstances. People v. Bullock, 398. See APPEAL AND ERROR (1); BILLS AND NOTES (1, 5, 7); Con- EXCEPTIONS-See APPEAL AND ERROR (2). EXCLAMATIONS OF PAIN-See EVIDENCE (6). EXECUTION-See ESTATES OF DECEDENTS (5). EXECUTORS AND ADMINISTRATORS-See ESTATES OF DECEDENTS (1, 8-11, 14). EXEMPTIONS-See GARNISHMENT (2). EXHIBITS-See CRIMINAL LAW (28). EXPECTANCY-See EVIDENCE (3). EXPLOSIVES-See CRIMINAL Law (7). EXPOSURE TO DANGER-See INSURANCE (3). EXPRESS WARRANTY-See SALES (8). EXTENSION OF CITY LIMITS-See STREET RAILWAYS (4). EXTENSION OF TIME-See APPEAL AND ERROR (11, 14). EXTORTION-See CRIMINAL Law (7). EXTREME CRUELTY-See DIVORCE (9). FAMILY RELATIONS-See ESTATES OF DECEDENTS (3). FARES, REGULATION OF-See STREET Railways (4). FELLOW-SERVANTS - See CONSTITUTIONAL LAW (1); MASTER FIDUCIARY RELATIONS-See DEEDS (2); INSANE PERSONS (2). FINDINGS OF FACT AND LAW-See APPEAL AND ERROR (6). FOOT FRONT RULE OF TAXATION—See TAXATION (4). FORECLOSURE—See MORTGAGES (2). FORFEITURE-See VENDOR AND PURCHASER (2). FORMER OFFENSES-See CRIMINAL LAW (8). FRANCHISES—See STREET Railways (4–6). FRAUD. 1. False or fraudulent representations made by defendant as to the value of the stock transferred to plaintiff were actionable whether or not the defendant knew they were false. Hubbard v. Oliver, 337. 2. Where defendant was the majority stockholder of a corporation which he had established and had managed and controlled, his representations as to the value of the net assets of the company and of its stock were not mere matters of opinion, but were actionable in favor of plaintiff who had been a mere traveling salesman of the corporation, and who relied on the superior knowledge of defendant. Id. 3. And where plaintiff tendered back to defendant the stock received by plaintiff as increased by the act of the corporation increasing its capital stock, after he obtained the shares of defendant, the tender was sufficient; and though plaintiff brought suit for a money judgment the claim of defendant that by so doing he deprived defendant of his defense of usury on certain notes surrendered by plaintiff to him in payment of the stock, was not tenable. Id. 338. 4. While a voluntary payment of a usurious claim does deprive the injured party of any right to recover it, the theory of plaintiff was that he had been fraudulently induced to acknowledge payment of the notes, that payment had not in fact been made, and accordingly he is entitled to recover only the amount legally due on the notes after deducting the interest to the date of sale and that part of the principal which represented usury. Id. 5. The trial court was right in excluding testimony offered to show the value of the corporate assets at a time subsequent to the date of the sale of stock. Id. 6. And it was proper to exclude evidence of the earning capacity of the company, on a record showing that defendant's representations excluded that element of value. Id. 7. In a suit to cancel land contracts for fraud of the vendee, and to quiet title because of his default and forfeiture, fraud is not lightly to be presumed, and evidence that complainant believed, or was misled into thinking that the contracts were FRAUD-Continued. mere options, is found to be insufficient to sustain the burden See BILLS AND NOTES (3); CANCELLATION OF INSTRUMENTS; FRAUDS, STATUTE OF. 1. Plaintiff's case was not governed by the statute requiring representations as to the credit of another person to be in writing, where the proofs showed that defendant sold his own stock, not that of the corporation, and made false statements relating to the value of its property, its net assets and the stock conveyed. 3 Comp. Laws, § 9518, 4 How. Stat. (2d Ed.) § 11402. Hubbard v. Oliver, 337. 2. An action for fraudulent warranty or representations that certain mares purchased by plaintiff, as he claimed, were with foal, was not barred by the statute of frauds where the price was actually paid and the subject matter of the contract delivered. Littlejohn v. Sample, 419. FRAUDULENT CONVEYANCES-See ESTATES OF DECEDENTS (11). FRONTAGE-See TAXATION (3). GARNISHMENT. 1. Garnishment lies to collect a debt secured by a statutory lien upon timber products, although a judgment has been obtained under the log-lien statute. Keister v. Donovan, 328. 2. Where a garnishee disclosed that indebtedness as claimed by plaintiff existed between the garnishee and principal defendant, and claimed that liens for labor performed by several claimants on certain logs had been obtained, and notice thereof served on the garnishee, and where he did not pay the money into court, but defended the case, and it appeared that the alleged liens were invalid by reason of defective proceedings to enforce them and that the principal defendant, being an independent contractor hiring labor to do the work, was not entitled to any exemption, a judgment for plaintiff was sustained by the proofs. Id. 329. GOOD FAITH-See BILLS AND NOTES (3); INSANE PERSONS (2). GOOD WILL-See CONTRACTS (1, 3). GROSS NEGLIGENCE-See NEGLIGENCE (2); RAILROADS (1); STREET RAILWAYS (1, 2). GUARANTORS-See PRINCIPAL AND SURETY (2, 5, 6). GUARANTY-See INSURANCE (1); PRINCIPAL AND SURETY (2, 7). GUARDIAN AND WARD-See INSANE PERSONS; PRACTICE (1, 3). GUARDIAN'S SALE-See INSANE PERSONS (2). |