defendant was negligent in each particular alleged.

It

The testimony as to the condition of the rope was its condition and appearance. was described as an old, dead line, together with the testimony of competent seamen that under proper management a new, strong strap would not part,-a statement which we should hope might be verified by experience.

As to the plaintiff's contributory negligence: Dealing with the subject somewhat abstractly, it would be rather startling to say that one having business with an approaching steamer is guilty of negligence if he approaches near enough to it to be struck by a projected broken part, in case such part is projected through mismanagement or fault in equipment. Defendants cites plaintiff's testimony on cross-examination stating that it was dangerous where he stood, but on redirect plaintiff stated that, if the fender strap had been sound, there would have been no danger. We think the question of plaintiff's contributory negligence was likewise a question for the jury.

Judgment affirmed. The other justices concurred.

JASKULSKI ▼. CITIZENS' MUT. FIRE INS. CO. OF KENT, ALLEGAN & OTTAWA COUNTIES.

(Supreme Court of Michigan. Nov. 11, 1902.) FIRE INSURANCE-TRANSFER OF PROPERTY—

POLICY-CONDITIONS-VALIDITY-PARTIES TO CONTRACT-INTEREST OF MORTGAGEE.

1. A provision in a fire insurance policy that the transfer, incumbering, or vacating of the property, or any change in the relations of the parties, without written notice to the company, would invalidate the policy, is valid.

2. Where a fire insurance policy was issued to the owner of the property, and on it was indorsed, "Loss, if any, payable to E. [a mortgagee] as his interest may appear," the mortgagee had no contract with the company avoiding the effect of a condition in the policy rendering it void on a transfer by the owner, or his personal representative, without written notice thereof.

Error to circuit court, Kent county; Álfred Wolcott, Judge.

Action by Franciska Jaskulski against the Citizens' Mutual Fire Insurance Company of Kent, Allegan & Ottawa Counties. Judgment for defendant, and plaintiff brings error. firmed.

Af

This is a suit upon an insurance policy to recover loss by fire. The policy was issued in 1895 to one Joseph Navrot, the owner of the land. The dwelling upon it was insured for $250. One Eckert had loaned Navrot some money, and taken a mortgage upon this land to secure it. Mr. Eckert and Mr. Navrot were both present when the policy was issued to Navrot. Indorsed upon it was, "Loss, if any, payable to Mr. Eckert as his interest may appear." Mr. Navrot 12. See Insurance, vol. 28, Cent. Dig. § 827.

died in April, 1900, having paid all assessments up to his death. The policy provided that, "in case of death of the insured, the Insurance should not lapse if within sixty days his proper representative should take out a new policy, the old policy being surrendered, and arrears paid." The court held that this provision was waived by the defendant, and no question is raised upon it. After Mr. Navrot's death an assessment was made, which Mr. Eckert paid, taking a receipt in Mr. Navrot's name. An administrator was appointed upon Navrot's estate, who, under the authority of the probate court, sold and conveyed the land to plaintiff and her husband on November 21, 1900. About the same time Mrs. Navrot executed a quitclaim deed to plaintiff for her interest in the premises. Meanwhile Eckert foreclosed his mortgage. Plaintiff and her husband redeemed from the foreclosure sale, and at the same time Mr. Eckert assigned his interest in the policy to the plaintiff. The house was destroyed by fire December 13th. The by-law provided: "The transfer, incumbering, or vacating of said property, increased hazard, or any change in the relations of the parties with reference to said contract without notice in writing to the secretary of said company, will avoid the policy." No notice of this sale and transfer was given to the defendant.

G. A. Wolf, for appellant. Burlingame, Belden & Orton, for appellee.

GRANT, J. (after stating the facts). Insurance companies may lawfully contract with the insured that the contract of insurance shall be void upon a conveyance of the title to the property without notice to, and the assent of, the insurer. Insurance companies may decline to insure the purchaser and grantee, while willing to assume the moral hazard of the person originally insured. This provision therefore valid. Plaintiff seeks to avoid the result by insisting that this policy was in fact issued for the benefit of Mr. Eckert, and that he had a contract with defendant. This contention is settled against the plaintiff by Van Buren v. Insurance Co., 28 Mich. 398; Insurance Co. v. Davenport, 37 Mich. 609; Minnock v. Insurance Co., 90 Mich. 236, 51 N. W. 367.

was

The contract of insurance was made with Mr. Navrot alone. He alone could bring suit upon it. He alone was liable for the premiums. Counsel for plaintiff cite Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834, 60 N. W. 133, 25 L. R. A. 679, and other similar cases. In that case the policy contained a mortgage slip by which it was agreed that, "as to the interest of the mortgagee, the insurance should not be invalidated by any act or neglect of the mortgagor or owner of the property." The mortgagor had forfeited his rights in the policy. It was held that the mortgagee had not, but that this clause gave him an independent right

The direction of the court was correct, and the judgment is affirmed. The other justices concurred.

LA FOND ▼. DETROIT CITIZENS' ST.

RY. CO.

minutes to go from Woodward avenue to this place; and, if it was on there, perhaps it was on some time longer. Now, the other suggestion is that, inasmuch as it has been shown to be a custom on the part of the boys on Congress and Baker streets, and upon the other streets upon which this car line is operated, to hitch on, that precaution ought to have been taken. The testimony

CARRIERS-INJURY TO PASSENGER-ACTS OF TRESPASSERS-NEGLIGENCE.

1. Plaintiff, a passenger on defendant's street car, while passing around the car after alighting was injured by catching her foot in a rope attached to the rear of the car by a trespasser. The rope had been on the car for some minutes, while the car was traveling about a mile and a half, but, on account of the darkness, was not discovered. Held, that the company was not guilty of negligence in failing by inspection to ascertain the presence of and remove the rope.

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Marie La Fond against the Detroit Citizens' Street Railway Company. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Ira A. Lieghley and William W. Ferguson, for appellant. Brennan, Donnelly & Van De Mark, for appellee.

MONTGOMERY, J. The facts appearing on the trial are summarized by the circuit judge as follows: Plaintiff, a passenger on defendant's street car, alighted from that car at the intersection of Congress street and Jos. Campau avenue, and, as she passed around the car after alighting, her foot caught in a rope that was dragging, and she was seriously injured. The testimony abundantly proves that some boy who was in the habit of hitching sleds or cans or something of the sort-at least, that is the natural and necessary inference from this testimony-had left that rope attached there. Now, the question is whether there is any evidence of negligence on the part of the street car company. The question is whether there is any evidence from which it can be inferred that they were negligent in not discovering the rope and removing it. Bear in mind to what part of this car the rope was attached. It was not attached above, but below, the projection, which is practically level with the platform. Bear in mind that it was after dark; between 6:20 and 6:30 on the evening of January 12th; some time after dark. Of course, the only way a rope of this sort could be discovered would be by close examination. None of the men on the back of that car saw the rope until some one was struck by it, except the one who passed around it when he alighted. I think you would be justified in inferring from the testimony of Reid, who got on at the corner of Woodward avenue and Congress street, that the rope was on from Woodward avenue, from a mile and a quar

that, as soon as the conductors discovered boys were hitching on, they stopped them. There is no custom, in other words, that permitted this to be done. It is true, two witnesses testified that they had seen boys hitching there without the conductor stopping them, while half a dozen or more witnesses testified that the conductor always stopped them. The only inference I can draw from the testimony, then, is that it was the custom not to permit them. The circuit judge was of the opinion that no actionable negligence was shown, and directed a verdict for defendant. In this opinion we concur. The rope was no part of the equipment of the car, and was placed there by a trespasser. The only fault which the plaintiff's counsel attributes to the defendant is the failure to discover the fact of the trespass and remove the rope. As pertinently suggested by the trial judge, if it was incumbent upon the defendant's employés to make an inspection every few blocks, or as often as every 71⁄2 minutes, it is difficult to see why such inspection should not have been continuous. The testimony does not show that the conductor in charge of the car in question had any reason to expect that such a rope had been left dangling in the rear of this car. True, there was testimony that on one occasion a rope had been found attached to another car of defendant company, and was cut off, but the conductor of this car is not shown to have had any knowledge of it. And it was a circumstance so unusual that it cannot be held that its occurrence entailed upon the company the duty of providing for a special and continuous inspection to prevent a repetition of such a trespass. A similar question was considered in McCaffrey v. Railroad Co., 47 Hun, 404, which was ruled against the plaintiff. See, also, Fredericks v. Railroad, 157 Pa. 103, 27 Atl. 689, 22 L. R. A. 306; Jakoboski v. Railroad Co., 106 Mich. 440, 64 N. W. 461.

The judgment is affirmed. The other justices concurred.

tinue the business with the property of the firm, and from the same pay certain debts, etc., and during the continuance of such business the surviving partner furnished the administratrix with money, the surviving partner and the administratrix thereby became partners, and were liable as such.

Error to circuit court, Ingham county; Howard Wiest, Judge.

Action by the City National Bank against Parmelia L. Stone and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Smith & Hood, for appellants. Rollin H. Person, for appellee.

MONTGOMERY, J. This is an action on certain promissory notes made by the firm of W. B. Stone & Co., and to recover for an overdraft of the account of the same firm. The case is within a narrow compass, as the only meritorious question is whether the defendant Parmelia L. Stone became a member of the firm. Certain questions relating to the rulings as to the admissibility of certain testimony became immaterial, inasmuch as the circuit judge, in directing a verdict for the plaintiff, rested his ruling upon the testimony given by the defendant Parmelia L. Stone on this trial and on the trial of another case involving the same issue. The firm of W. B. Stone & Co. was originally composed of W. B. Stone and Harry L. Stone. W. B. Stone died on September 9, 1898, leaving Harry L. Stone, his only son, and Parmelia L. Stone, his widow, who were the only persons, other than creditors, interested in his estate, and who were appointed to administer the estate. The business of the firm of W. B. Stone & Co. was continued from September, 1898, until June, 1900. The question of the liability of Parmelia L. Stone in this action is to be determined by ascertaining whether in what she did she made herself a member of the firm. It is now well settled that the administrator, by tacitly leaving the assets in the hands of the surviving partner, does not incur liability as a partner. Nor does the receipt of profits of the business, in and of itself, constitute him a partner. Parsons, Partn. § 74, and cases cited. On the other hand, it appears to be as definitely settled that by an agreement to continue the business, either expressly or impliedly made, either for the benefit of the estate or of the executor, he does incur liability as a partner. Id. In the present case the testimony of Mrs. Stone, given on this trial, was as follows: "Q. What did you and Harry talk about in regard to this business? A. I told him he better go on with it just as he had been doing. Q. What made you tell him that? A. Because we thought it was the best thing to do, because we did not know anything else to do. We did not talk about any other plan. We talked it just as a son and mother would talk about things, with no one else to

Q.

look to. We were the only heirs, each claiming to hold the property, and talked over the matter about going on with the business, and concluded it was the best thing to do. Q. And you told him to go on, did you? A. I don't know as I told him to go on. We thought it would be best to go on. He thought he could go on with the business, and work out of debt after a while. Q. The debts covered your property and his property, did they? A. Well, it would naturally, I suppose. I did not expect it would take my property, though, at the time. Q. But the debts you wanted to pay covered your property and his property? Is that true? A. Yes; there was a mortgage on it all. The understanding was that he was to pay the debts that were hanging over the firm,-pay the lumber debts; and we intended to sell the property as soon as we could, and pay the mortgage. Q. Did you talk that all over between yourselves? A. Well, we might have talked it over. It is hard to say just what we talked over. I presume we did. We talked over a good many things about all the business,-all the property. Did you agree upon that,-come to an agreement between you; that is, both make up your minds to the same thing? A. We never made any agreement about it. Q. I mean, did you and he agree as to what was the best thing to do? A. Yes; I suppose we did. Q. And did he continue the business because of that agreement? A. I don't think he continued under anything I said about it. I did not know anything about it. I never had anything to do with any of the business. He and I talked it over, and came to the conclusion that it was the best thing to do. Q. And he went on in accordance with that conclusion, didn't he? A. Yes; I asked him for money when I needed it, and he gave it to me. I could not say it came from the firm." It is true, she also stated that she did not understand that she became a partner, but the test is whether her relations to the business were such as to constitute her a partner. As was said in Beecher v. Bush, 45 Mich. 188, 7 N. W. 785, 40 Am. Rep. 465; "It is possible for parties to intend no partnership, and yet to form one. If they agree upon an arrangement which is a partnership. in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners." In this case the testimony of defendant shows that Mrs. Stone, as well as her son, understood that, for an indefinite time, property owned by them jointly was to be used in the business, and that the assets of the old firm were to be continued in that business with a view to the mutual profit of the parties. Under the law, they became partners. Judgment affirmed.

HOOKER, C. J., did not sit. The other justices concurred.

OSMUN. GALBRAITH. (Supreme Court of Michigan. Nov. 11, 1902.) ADMINISTRATOR-APPOINTMENT-PARTIES ENTITLED-TRUSTEE IN BANKRUPTCY.

1. Under Comp. Laws 1897, § 9324, providing that letters of administration shall be granted first to the widow, husband, or next of kin, or the "grantee of the interest of one or more of them," a trustee in bankruptcy of a daughter having an interest in the unadministered estate of her mother might be appointed administrator.

Certiorari to circuit court, Oakland county; George W. Smith, Judge.

Application by Franklin B. Galbraith, as trustee in bankruptcy of the estate of Mary E. Young, for appointment as administrator of the estate of Mary Ann Osmun. From an order granting the application, William H. Osmun appealed to the circuit court, and on affirmance brings certiorari. Affirmed.

Lillis & Beardslee, for appellant. Perry & Stockwell, for appellee.

MONTGOMERY, J. On the 7th day of March, 1901, Mary E. Young was adjudged a bankrupt by the district court of the United States for the Eastern district of Michigan. Franklin B. Galbraith was appointed trustee in bankruptcy. At the time of the adjudication Mary E. Young had an interest in the unadministered estate of her mother, Mary Ann Osmun. The trustee filed a petition in the probate court of Oakland county, setting forth these facts, and asking to be appointed administrator of the estate. The appointment was objected to by William H. Osmun, Sr., who was the husband of the deceased. The appointment was made, notwithstanding the objection, and an appeal taken from the order making the appointment to the circuit court for the county of Oakland, in which court the order was affirmed. The case is brought before us for review on certiorari.

The statute (3 Comp. Laws 1897, § 9324) provides that the parties in interest shall be entitled to administration in the following order: "First, The widow, husband or next of kin, or a grantee of the interest of one or Inore of them, or such of them as the judge of probate may think proper, or such person or persons as the widow, husband, next of kin or grantee may request to have appointed, if suitable and competent to discharge the trust; second, if the widow, husband, next of kin or grantee, or the person selected by them shall be unsuitable or incompetent, or if the widow, husband, next of kin or grantee shall neglect for thirty days after the death of the intestate to apply for administration, or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it; third, if there be no such creditor competent and willing to take administration, the same may be com

mitted to such other person or persons as the judge of probate may think proper." More than 30 days had elapsed after the death before the petition was filed, and it is doubtful whether the husband is in a position to complain of the appointment of any suitable person. See Wilkinson v. Conaty, 65 Mich. 620, 32 N. W. 841. But we think the case may well be determined upon the point made by the plaintiff in error. It is contended that the petitioner, Galbraith, is not the grantee of the next of kin, within the meaning of this statute. We fail to perceive why not. Certainly the interest which Mary E. Young had in her mother's estate passed by the assignment in bankruptcy to the trustee. He became a grantee of that interest, and, we think, is within the word, as well as the spirit, of the statute. This being so, we do not feel that we would be justified in interfering with the discretion exercised by the circuit judge.

The order will be affirmed.

LONG, J., did not sit. The other justices concurred.

BUTLER v. DETROIT, Y. & A. A. RY. CO. (Supreme Court of Michigan. Nov. 11, 1902.) TRIAL CURING ERROR-WAIVER-INSTRUC

TIONS.

1. Error in the admission of testimony was cured by the court's instructing the jury to disregard it.

2. That omission to instruct that there was no evidence that the plaintiff's injuries were permanent was inadvertent was immaterial, as affecting the prejudice to defendant.

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Charles Butler against the Detroit, Ypsilanti & Ann Arbor Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

T. T. Leete, Jr. (Paul B. Moody, of counsel), for appellant.. Edward M. Vining (J. Emmet Sullivan, of counsel), for appellee.

MOORE, J. September 16, 1900, plaintiff was riding on the rear platform of one of defendant's cars. Upon the platform was one Miller. It is the claim of the plaintiff that Miller and the conductor got into an altercation, when the conductor called the motorman to his aid, and that not only Miller, but the plaintiff, was thrown off the car, and plaintiff received injuries for which this action was brought. It was the claim of the defendant that it was Miller, and not its employés, who pulled the plaintiff from the platform. The jury returned a verdict for $1,900. A motion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

Complaint is made of the admission of certain testimony. If the testimony was inad

1. See Appeal and Error, vol. 3, Cent. Dig. 4179.

missible, the error was cured by the court's instructing the jurors they were to disregard the testimony objected to.

The judge was requested by defendant to charge, "There is no evidence in this case that the injuries claimed to have been received by the plaintiff are permanent." He did not do so, and failed to call the attention of the jury to that subject at all. In disposing of the motion for a new trial, the judge said: "There is an inadvertence, possibly, in not precisely charging that there was no evidence of permanent injury. The permanent injury, if any, in this case, was left rather doubtful,too doubtful, alone, on which to found a verdict. I had supposed that this point was clearly covered, and that the defendant road certainly had every element in the charge in their favor to cover and include their theory perfectly and beyond question." The fact that the omission was due to an inadvertence | does not remedy the harm done. Under the facts disclosed by the record, the defendant was entitled to this request, especially if counsel made the argument to the jury upon that subject which it is alleged he made.

Objection is made to part of the charge bearing upon the question of how the jurors shall arrive at their verdict. The language used was not very definite, and is open to the charge of being ambiguous; but, as for other reasons the case is to be reversed, we will not decide whether the language used was reversible error, as it will not be repeated.

The other assignments of error have been considered. They are either not well taken, or the action of which complaint is made is not likely to occur again.

The judgment is reversed, and a new trial ordered. The other justices concurred.

NEWMAN v. MEDDAUGH. (Supreme Court of Michigan. Nov. 11, 1902.) LIMITATION OF ACTIONS QUESTION FOR JURY.

1. Where the question as to whether limitations had run against plaintiff's action depended on whether he had delivered the summons to the sheriff for the service on or before a certain date, and the evidence was conflicting, the question of limitations was properly left to the jury.

Error to circuit court, Tuscola county; Watson Beach, Judge.

Action by Louis Newman against Stephen Meddaugh. Judgment for defendant, and plaintiff brings error. Affirmed.

Frank S. Pratt (Abraham J. Randall and Byron L. Ransford, of counsel), for appellant. Quinn & Wixson, Atwood & Pulver, and C. P. Black, for appellee.

MOORE, J. This action was commenced by summons dated September 30, 1901, and returnable December 1, 1901. Service was made on the defendant on the 1st day of

a

November. The suit was brought upon promissory note dated September 22, 1894, due on or before October 1, 1895, upon which note no payments had been made. The plea of the general issue was interposed, with notice that the note was procured without consideration. Notice of the statute of limitations was also given. The only defense the court allowed to go to the jury was the running of the statute of limitations.

The important question in the case is, did the court err in submitting to the jury the question of whether the suit was commenced before the note was barred by the statute of limitations? On the part of the plaintiff it is insisted that what constitutes the commencement of a suit is a question of law, and that whether the facts of a case showed a suit properly commenced would likewise be a question of law. If there was no dispute about the facts, this contention would doubtless be true. It is conceded by counsel for the defendant, and the court so instructed the jury, that if the summons was delivered to the sheriff, for the purpose of having it served, on or before October 5, 1901, the statute of limitations would not run, but the question of when the summons was placed in the hands of the sheriff is in dispute. It is the claim of the plaintiff that it was given to him for service October 4, while defendant claims the summons was not issued at all until after October 5, and that it was not given to the sheriff until about October 15. The local attorney for the plaintiff testified it was given to the sheriff October 4. He does not testify when it was issued, but admits that upon the date it was issued the clerk of the court, at his request, dated it back. The trial judge allowed testimony to be given of the circumstances surrounding the issuance and service of this summons. The clerk and the sheriff were both sworn as witnesses. Neither of them is at all clear in his recollection as to when the summons was issued, nor when it was given to the sheriff. The trial court submitted the question, under proper instructions, to the jury, who rendered a verdict in favor of defendant. There was an abundance of testimony upon which to base this verdict.

The other questions have been considered, but we do not deem it necessary to discuss them.

The judgment is affirmed. The other jus tices concurred.

VOSS et al. v. CONNECTICUT MUT. LIFE INS. CO.

(Supreme Court of Michigan. Nov. 11, 1902.) LIFE INSURANCE-BENEFICIARY.

1. A company, having paid a life policy issued in favor of the insured's wife, or, should he survive her, in favor of her children, on the death of the insured, who survived the wife, to the administrator of the insured's estate, who accounted for it to the orphans' court, where the administration was pending, which court