this is a reasonable length of time after the by this court. Counsel cite many discovery of the fraud."

The court then referred to Porth v. Cadillac Motor Car Co., 198 Mich. 501, 165 N. W. 698, and distinguished it from the instant The court further said:

[5] We think it appears undisputed by this [1-4] It is urged that a tender of the money record that deceased knew what he was received is not a prerequisite to the begin-signing and what he was settling. It is finally ning of suit, where settlement is induced by fraud. It is conceded that in the Porth Case language was used indicating that, if the alleged fraud had been in the inducement, a tender would have been necessary; but it is said that that language was unnecessary to a determination of the case, and they assume that the point has not been definitely decided

reasonable time as matter of law.

(184 N.W.) Jewett v. "The respondents were arrested on a warPetit, 4 Mich. 508; Hubbardston Lbr. Co. v. rant charging them with the commission of Bates, 31 Mich. 158-168. This delay was in an assault with intent to do great bodily harm no manner excused or explained. Upon this less than the crime of murder, at the city of subject generally, see 8 Cyc. 531-533; 12 Cor-lowing an examination, which was had June 4, Iron Mountain, Mich., on May 23, 1920. Folpus Juris, 345, 355-357.

The judgment of the circuit court is affirmed.

PEOPLE v. CORSI et al. (No. 11.) (Supreme Court of Michigan. Oct. 3, 1921.) 1. Criminal law 897(1)-Pleading to information waives misnomer of injured party in complaint, warrant, and return, and confers jurisdiction.

1920, they were bound over for trial. Upon an information charging that offense, they were arraigned and pleaded not guilty at the July, 1920, term of court. The July term being nonjury, the case was continued until the September, 1920, term, when trial was had. A verdict of guilty of assault and battery against Corsi and of guilty of assault with intent to do great bodily harm less than the crime of mur. der against Sandrini was returned. Judgment on the verdict has not been entered.

"In the complaint and warrant under which the respondents were arrested and examined, and in the return of the magistrate, the name In view of Comp. Laws 1915, § 15767, reof the person assaulted is given as 'Lee Jenquiring a preliminary examination unless resen.' The name of the person assaulted was spondent waives his right thereto, respondents, not Lee Jensen, but Jess Jessen, a well-known pleading not guilty to an information charging deputy sheriff of Iron county, Mich. The comassault on a person correctly named at the ex- plaint was sworn to by a police officer of the amination and in the information when pleaded city of Iron Mountain, the day following the to, waived a misnomer of the injured party in assault and while Jess Jessen was in a hosthe complaint, warrant, and return of the mag-pital at that place, under treatment for the istrate, and conferred jurisdiction on the court to proceed with the trial.

2. Indictment and information 14-No error in permitting filing of carbon copy of lost information.

Under Comp. Laws 1915, §§ 12264, 12267, relative to duplication of lost records, the court did not err in permitting the filing of a carbon copy of a lost original information.

Exceptions from Circuit Court, Dickinson County; Richard C. Flannigan, Judge.

Andrew Corsi was convicted of assault and battery, and Pasquale Sandrini of assault to do great bodily harm less than murder. Motion in arrest of judgment overruled, and respondents bring exceptions before sentence. Affirmed, and remanded for further proceedings.

Argued before STEERE, C. J., MOORE, FELLOWS, WIEST, CLARK, BIRD, and SHARPE, JJ.

and

STONE,

M. S. McDonough, of Iron River, for appellants.

J. C. Knight, Pros. Atty., of Iron Mountain, for the People.

wounds inflicted upon him in the affray. On the examination, Jessen, the person assaulted, was a witness for the people. He gave his name as Jess Jessen. By the witnesses who testified on the examination he was identified as the person assaulted and by the name of Jess Jessen. That he was also known by the name of 'Lee Jensen,' or that a person named Lee Jensen' had been assaulted by the respondents, there was no evidence and no claim before the magistrate. Nevertheless amendment of the complaint or warrant, correcting the name of the person alleged to have been assaulted, was not asked for or made at the examination.

"At the trial at the circuit, evidence was introduced by the people tending to show an assault on Jess Jessen by Corsi with rocks picked up from the roadway, and by Sandrini with a knife. There was ample evidence to support the verdict against each of the respondents as returned. There was no evidence introduced on the trial tending to show that Jessen was also known by the name of Lee Jensen, or of an assault by the defendants, or either of them, on a person named Lee Jensen, formation was present in court during the or that a person of that name existed. The intrial, and was on the judge's desk during the charge and when the jury retired. Thereafter it became lost or mislaid and has not been found.

"Claiming the information, as well as the MOORE, J. Upon a trial by jury respondcomplaint, warrant, and return of the magisent Corsi was convicted of assault and bat-trate, stated the name of the person assaulted tery upon one Jess Jessen, and Sandrini was as 'Lee Jensen,' the respondents, after conconvicted of assault to do great bodily harm viction, moved in arrest of judgment on the less than the crime of murder. Upon rendi-grounds, in substance, that the verdict was tion of the verdict a written motion in arrest of judgment was filed by respondents. This motion was overruled. The case is here upon exceptions before sentence.

Upon denying the motion the court filed a 'written opinion which states the situation so fully that we quote from it:

against the constitutional rights of the respondents, and conferred no jurisdiction to tending to show the respondents, or either of sentence, because, first, there was no evidence them, guilty of assault on a person named Lee Jensen; and second, conceding there was evidence tending to show an assault by the respondents on Jess Jessen, there was no com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Attached with the affidavits is the prosecuting attorney's office copy of the information, which, in his affidavit, he calls a carbon copy. To the naked eye, or under a glass, no erasure or change of the surname 'Jessen' is apparent in the carbon copy. That the first name 'Jess' was inserted by type striking on ribbon, and that the surname 'Jessen' and the remainder of the typewriting in the copy is carbon is evidence on inspection. That the surname 'Jessen' appeared in the information as first drafted, and that the name 'Lee' was changed to read 'Jess' before the information was sworn to or filed, and that, when the respond- SUPERIOR STEEL SPRING CO. v. NEW ents pleaded to the information, the name of the person they were therein charged with assaulting was Jess Jessen, is the conclusion

2. Appeal and error 173(6) Question of mutuality of contract not considered where not raised below.

The question of mutuality of contract, not having been brought to the trial court's atten

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(184 N.W.)

Verdict cannot be directed on the ground of estoppel and waiver where the testimony on those questions is conflicting. 4. Trial 177-Right to go to jury waived by both parties moving for directed verdict.

tion or made the basis of any motion or assign- | 2,000 springs had been delivered, and the full ment of error, is not before the reviewing court. amount was not delivered until June 29th. 3. Estoppel 119-Verdict not directed on About this time arrangements were made for conflicting testimony. 1,500 more springs at the same price, and soon thereafter for 400 more at $1.45 each. On these later arrangements 1,903 springs were delivered. To recover the amount due for them this action is brought. It was met by the defendant by insisting that there was due to it from the plaintiff under the clause of the contract above quoted more than the amount of its indebtedness to the plaintiff, and the case in the court below turned quite largely on the question of whether the provision was one for stipulated damages or for a penalty. Other questions were raised to

It cannot avail plaintiff that there was evidence to go to the jury on the questions of defendant being estopped to assert, or having waived, a defense; he not asking for submission to the jury, but like defendant having moved

for a directed verdict, and defendant's motion having been granted.

Error to Circuit Court, Kent County; John which we shall presently refer. Plaintiff S. McDonald, Judge.

Action by the Superior Steel Spring Company against the New Era Spring & Specialty Company. Judgment for defendant on a verdict directed for it, both parties having moved for directed verdict, and plaintiff brings error. Affirmed.

Argued before STEERE, C. J., and MOORE, FELLOWS, WIEST, STONE, CLARK, BIRD, and SHARPE, JJ.

does not deny that it failed to deliver the springs in accordance with the terms of the contract, and the testimony of its secretary fairly disclosed that such failure was due to its filling other contracts. Nor is it denied that defendant had numerous orders which it had obtained for springs canceled by reason of such failure.

Counsel for both parties have been most diligent in their research and have called to our attention a large number of our own

Willis B. Perkins, Jr., of Grand Rapids, for cases together with numerous authorities appellant.

from other jurisdictions. As this court has,

Smedley, Linsey & Shivel, of Grand Rap- we think, conclusively settled the question ids, for appellee. here involved, we shall confine our attention to our own cases.

[1] In the early case of Jaquith v. Hudson, 5 Mich. 123, Mr. Justice Christiancy, who wrote for the court, in a masterly and exhaustive opinion fully considered the question and laid down the rule for the construction of contracts of this character which have been consistently adhered to by this court ever since. After pointing out the reasons and principles which justify the courts in holding that penalties as distinguished from stipulated damages may not be enforced, he says:

FELLOWS, J. Plaintiff, located at Mt. Clemens, manufactures automobile springs. Defendant, located at Grand Rapids, is a large dealer in them. In April, 1918, by a proposal and an acceptance of it they entered into a contract for 10,000 Ford springs. The price was $1.25 each. The parties ap pear to have had previous business relations. At the time the contract was made, plaintiff had two carloads of steel on track at Mt. Clemens which it needed the money to pay for and got in touch with defendant. Defendant paid the entire contract price for the 10,000 springs in advance by its notes which "But the court will apply this principle, and were discounted by plaintiff at Mt. Clemens disregard the express stipulation of parties, only in those cases where it is obvious from and which were paid by defendant when due. the contract before them, and the whole subBy the contract 2,500 springs were to be de-ject-matter, that the principle of compensation livered each week for the weeks ending April 27th, May 4th, May 11th, and May 18th. The proposal which was accepted contained the following:

"We will thus pay in advance as per the terms on the order, for both the steel or material and profit on ten thousand springs. It is done with the distinct understanding that you are to produce the springs by the date specified and on any such orders you fail to have ready for shipment, you will pay us 25 cents per spring, as a portion of our lost profit, if we so elect."

On May 18th, the final day agreed upon for the completion of the contract, less than

has been disregarded, and that to carry out the express stipulation of the parties would violate this principle, which alone the court recognizes as the law of the contract."

And in considering the classes of cases he said:

"But, secondly, there are great numbers of cases, where from the nature of the contract and the subject-matter of the stipulation, for the breach of which the sum is provided, it is apparent to the court that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty, by reference to any pecuniary standard, and where the parties

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

themselves are more intimately acquainted with all the peculiar circumstances, and therefore better able to compute the actual or probable damages, than courts or juries, from any evidence which can be brought before them. In all such cases, the law permits the parties to ascertain for themselves, and to provide in the contract itself, the amount of the damages which shall be paid for the breach. In permitting this the law does not lose sight of the principle of compensation, which is the law of the contract, but merely adopts the computation or estimate of the damages made by the parties, as being the best and most certain mode of ascertaining the actual damage, or what sum will amount to a just compensation. The reason, therefore, for allowing the parties to ascertain for themselves the damages in this class of cases, is the same which denies the right in the former class of cases, viz., the courts adopt the best and most practicable mode of ascertaining the sum which will produce just compensation."

After fully considering the question and taking up the case then before the court, he

said:

"The damages to arise from the breach of this covenant, from the nature of the case, must be not only uncertain in their nature, but impossible to be exhibited in proof, with any reasonable degree of accuracy, by any evidence which could possibly be adduced. It is easy to see that while the damages might be very heavy, it would be very difficult clearly to prove any. Their nature and amount could be better estimated by the parties themselves, than by witnesses, courts, or juries. It is, then, precisely one of that class of cases in which it has always been recognized as peculiarly appropriate for the parties to fix and agree upon the damages for themselves."

The following cases among others will be found to have consistently followed the rules announced in the Jaquith Case: Western Gas Construction Co. v. Dowagiac Gas & Fuel Co., 146 Mich. 119, 109 N. W. 29, 10 Ann. Cas. 224; City of Detroit v. Telephone Co., 135 Mich. 696, 98 N. W. 745; Germain v. Union School District of City of Stanton, 158 Mich. 214, 122 N. W. 524, 123 N. W. 798; Axe v. Tolbert, 179 Mich. 556, 565, 146 N. W. 418; Randall v. Randall, 37 Mich. 563; Whiting v. Village of New Baltimore, 127 Mich. 66, 86 N. W. 403; Geiger v. Cawley, 146 Mich. 550, 109 N. W. 1064; Jones v. Stainton, 200 Mich. 694, 166 N. W. 966.

In the instant case the parties were dealing in a period when abnormal conditions existed in the business world. Both were familiar with these conditions; both knew the rapid fluctuations in the price of steel and the difficulty of getting it at all; both knew that defendant was an extensive dealer with many custonrers in all parts of the country; both understood that prompt deliveries must be made by defendant to its customers or cancellation of orders was liable to follow, entailing not only loss of immediate profits and immediate business, but also loss of future business and loss of its trade which was then well established. (Some four pages of the record are taken in detailing canceled orders due to plaintiff's failure to make deliveries.) The amount of damage for loss by cancellations and loss of business would be difficult if not impossible to prove. While some of the elements of defendant's damages might be susceptible of proof, others were not. There is nothing in the record indicating that the sum agreed upon was in any way in excess of the actual damages suffered by defendant. Indeed, a quick rise in the price of steel compelled plaintiff to charge 20 cents more apiece for the last 400 springs than it had for the others. Under the facts disclosed upon this record and having in mind the rules laid down in the Jaquith Case, we are persuaded that it was permissible for contract and the subject-matter of the stipula- the parties to agree in their contract upon tion, it is apparent that the actual damages for the compensation to be paid upon the breach a breach are uncertain in their nature, diffi- of this one important feature of it. The stipcult to be ascertained, or impossible to be es-ulated damages were not payable upon diftimated with certainty by reference to any pe- ferent breaches of the contract of varying cuniary standard. The weight of authority is distinctly in favor of the proposition that cases like the one under consideration come within this classification."

In Calbeck v. Ford, 140 Mich. 48, 103 N. W. 516, Mr. Justice Blair, speaking for the court, quoted fully from the Jaquith Case, and said: "This case has been frequently referred to with approval, and is a clear and authoritative statement of the rule as expounded by this court. Applying the principles above stated to the facts of this case, it appears to us that the case falls within the cases referred to in the second class, where, from the nature of the

And in Rose v. Loescher, 152 Mich. 386, 116 N. W. 193, 125 Am. St. Rep. 418, Mr. Justice Grant said:

"In cases where it is difficult to accurately determine the damages which one party may suffer by the failure of the other to perform his contract, the parties themselves may agree upon such sum as in their judgment will be ample compensation for the breach."

degrees of importance, but were confined to the one important feature, that of prompt delivery. Under the facts of the case and the law applicable thereto this provision was not a penalty.

[2] Upon the argument the question of whether there was a want of mutuality in the contract was raised. But an examination of the record discloses that this question was not brought to the attention of the court below or made a basis of any motion or assignment of error. Under these circumstances the question is not before us.