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Levin, J. The question presented is whether annual installments of a Michigan state lottery prize, unpaid at the winner’s death, are exempt from the inheritance tax under a provision of the Lottery Act providing that no state or local tax "of any kind whatsoever shall be imposed upon the proceeds from a prize” awarded by the state lottery. We hold that state lottery prize proceeds, including the right to transfer and receive an inheritance of such proceeds, were so exempt. i Rose D’Amico won a state lottery prize entitling her to $1,000,000 payable in twenty annual installments of $50,000. Fourteen installments were unpaid when she died in March, 1981. The inheritance tax examiner, in accordance with the Department of Treasury’s eleven-year practice of not seeking to tax state lottery proceeds, did not include the lottery proceeds in the December, 1981, calculation of the inheritance tax. The tax was redetermined in April, 1986, after a September, 1983, Department of Treasury decision to seek to collect inheritance tax on the transfer of the right to receive future installments of a decedent’s lottery winnings. The additional tax sought to be imposed is $13,527.70. The probate court ruled that state lottery proceeds were not, before the 1988 repeal of the statutory provision exempting state lottery proceeds from the imposition of tax, subject to inheritance tax. 1988 PA 516. The Court of Appeals reversed, stating that the exemption was for a "direct” tax on property and did not apply to a tax on the privilege of transferring or receiving property by inheritance. ii The United States Supreme Court held in 1900 that legislation exempting securities issued by the United States government from taxation did not exempt the securities from federal estate or state inheritance taxation. State court cases generally adopt the analysis employed by the United States Supreme Court. _ Judicial opinions so holding draw a distinction, adopted by the Court of Appeals and in the dissenting opinion, between a "direct” and an "indirect” tax, and distinguish between a direct tax on property or income and a tax on the "privilege” of transferring or receiving property, and sometimes explain their results by characterizing an estate or inheritance tax as an excise tax. The courts so holding also invoke, as did the Court of Appeals and the dissent, rules of construction disfavoring exemption from taxation. The most telling rule of construction, however, is often a court’s teleological assessment of the consequences of one construction as opposed to another, as appears from the seminal decision of the United States Supreme Court in Plummer v Coler, 178 US 115, 138; 20 S Ct 829; 44 L Ed 998 (1900), where an underlying policy is stated: It is often impracticable to secure from living persons their fair share of contribution to maintain the administration of the State, and such [inheritance tax] laws seem intended to enable to secure payment from the estate of the citizen when his final account is settled with the State. Nor can it be readily supposed that such obligations can be evaded or defeated by the particular form in which the property of the decedent was invested. [Emphasis added.] Were the United States Supreme Court to have held that United States government securities were exempt from estate and inheritance taxation, persons whose wealth is in liquid form — cash, checking, or savings accounts, or marketable securities — could, in anticipation of death, have invested the bulk of their fortunes in tax-exempt United States government securities and thereby avoided all estate and inheritance taxation of wealth in that form. The Court undoubtedly cor rectly assessed the matter in concluding that the Congress did not intend such a result when it exempted United States government securities from taxation. The policy concern identified in Plummer does not obtain where lottery proceeds are involved. While a lottery winner expends money in purchasing lottery tickets, there is no "investment” or transfer of wealth, in the sense referred to in Plummer, in purchasing a lottery ticket, and no need, by judicial construction, to guard against avoidance, beyond the policy of the statute, of estate and inheritance tax. I acknowledge that United States Trust Co v Helvering, 307 US 57; 59 S Ct 692; 83 L Ed 1104 (1939), cannot be explained on the policy basis suggested. There the exemption was of life insurance proceeds, apparently payable ex gratia, by the United States to veterans of World War I. The Court observed that the rule distinguishing between a direct and indirect tax, and the excise distinction, had been well established, before enactment of the legislation providing the life insurance benefit, since 1900 when Plummer was decided. hi This Court has not heretofore considered the question dealt with in Plummer. There is no decision of this Court holding that a legislative exemption from taxation applies only to direct taxes, or that an indirect or excise tax on the right or privilege of transferring or receiving property is not included within an exemption from taxation. There not having been a ruling by this Court establishing the law in Michigan, the department’s eleven-year practice of exempting lottery proceeds from inheritance tax on the basis of a ruling by the Attorney General takes on, in our opinion, decisive significance. A The letter, dated October 5, 1977, advising of the first, contemporaneous construction of the lottery tax exemption from taxation, stated: The Attorney General’s Department, Revenue and Collections Division, Mr. Richard R. Roesch Assistant in Charge, has ruled that lottery winnings are not subject to any Michigan tax which, of course, includes inheritance tax. [Emphasis added.][ ] In 1983, the department announced that it would no longer adhere to that ruling. B This Court has held that "the construction placed upon a statute by the agency legislatively chosen to administer it is entitled to great weight.” Davis v River Rouge Bd of Ed, 406 Mich 486, 490; 280 NW2d 453 (1979). A leading treatise on statutory construction states: Interpretations and application of regulations by officers, administrative agencies, departmental heads and others officially charged with the duty of administering and enforcing a statute have great weight in determining the operation of a statute. The greatest weight attaches to an admin istrative interpretation in favor of parties who have reasonably relied upon it. [2A Sands, Sutherland Statutory Construction (4th ed), §49.05, p 362. Emphasis added.] One of the soundest reasons sustaining contemporaneous interpretations of long standing is the fact that the public has relied on the interpretation. . . . While the principle here is not strictly that of estoppel running against the government there is some analogy to that principle when the interpretation has been made by a government agency or officer. [Id., § 49.07, p 394. Emphasis added.] The United States Court of Appeals for the Third Circuit said: Deference to the Attorney General’s interpretation of the [Kentucky Consumer Protection] Act is particularly appropriate here because the interpretation is adverse to his best interests in this litigation. [In re Glenn W Turner Enterprises Litigation, 521 F2d 775, 779 (CA 3, 1975). Emphasis added.] In holding that promissory notes were not debentures within the meaning of a statute that imposed a stamp tax on "all bonds debentures, or certificates of indebtedness issued by any corporation,” the United States Supreme Court said: Against the Treasury’s prior longstanding and consistent administrative interpretation its more recent ad hoc contention as to how the statute should be construed cannot stand. [United States v Leslie Salt Co, 350 US 383, 396; 76 S Ct 416; 100 L Ed 441 (1956). Emphasis added.]_ The United States Court of Appeals for the Second Circuit in Jandorf’s Estate v Comm’r of Internal Revenue, 171 F2d 464 (CA 2, 1948), declined to apply the direct/excise/privilege/transfer tax distinction for, among other reasons, the department’s longstanding policy of construing the statute at issue in that case as granting an estate tax exemption for United States government bonds owned by nonresident aliens. Both the instant case and Jandorf’s Estate may be contrasted with United States v Wells Fargo Bank, 485 US 351, 353; 108 S Ct 1179; 99 L Ed 2d 368 (1988), a case cited by the department in support of the direct/excise/privilege/transfer tax distinction. The Court there noted that [f]or almost 50 years after the Act’s passage, it was generally assumed that this [the provision of the Housing Act of 1937 exempting project notes from all taxation imposed by the United States] exempted the Notes from federal income tax, but not from federal estate tax. The unbroken assumption regarding the construction of the exemption in Wells Fargo Bank was thus the opposite of that operating in Jandorf’s Estate and in the instant case. c For over a decade, the department construed § 34 of the Lottery Act as exempting state lottery prize proceeds from inheritance taxation. Persons who bought lottery tickets during the regime when the department and field examiners were administering the inheritance tax law as exempting lottery proceeds from inheritance tax should be accorded the benefit of the first, contemporaneous construction of the law: It has been held that an administrative agency having interpretive authority may reverse its interpretation of a statute, but that its new interpretation applies only prospectively. [Sands, supra, § 49.05, p 365.] D A state lottery winner’s right to a lottery prize is governed by principles of contract law. In that context, it has been said: The practical interpretation of the contract by one party, evidenced by his words or acts, can be used against him on behalf of the other party, even though that other party had no knowledge of those words or acts when they occurred and did not concur in them. [3 Corbin, Contracts, § 558, p 256.] E Persons who buy tax-exempt bonds may be more likely to consult lawyers and accountants familiar with the esoteric distinction enunciated in Plummer than purchasers of state lottery tickets, who are not likely to become aware of a distinction between direct and indirect taxation, and income, privilege, transfer, and excise taxes: The words of the statute are to be taken in the sense in which they will be understood by that public in which they are to take effect. [United States v Isham, 84 US (17 Wall) 496, 504; 21 L Ed 728 (1873).] It is unlikely that Rose D’Amico’s heirs would perceive a meaningful distinction between being required to pay $13,754 as income tax, from which they are concededly exempt, and paying $13,527.70 as inheritance tax. The proceeds of the lottery prize that they receive and may retain free of tax will have been reduced by $13,527.70 whether called an income, an excise, a privilege, a transfer, or an inheritance tax. IV In sum, the Lottery Act provides that no state tax "of any kind whatsoever” shall be imposed on the proceeds of a state lottery prize. The inheritance tax is, in terms, a tax, and it cannot seriously be suggested that it is not a tax. It is a tax even if it is an excise tax, an indirect tax, a transfer tax, a privilege tax, and not simply, as the Legislature called it, an inheritance tax. This tax is measured by the present value, at the time of death, of the unpaid "proceeds” of the lottery prize. The first, contemporaneous construction by the state that the inheritance tax is a tax within the meaning of § 34 of the Lottery Act was, for reasons earlier stated, an entirely plausible and defensible construction. The Department of Treasury should be held to be bound by the first, contemporaneous construction by the state, at least with regard to the estates of persons who purchased lottery tickets before September 14, 1983, when the department advised inheritance tax field examiners of a "new development.” We reverse the decision of the Court of Appeals. Brickley, Cavanagh, and Archer, JJ., concurred with Levin, J. Section 1 provides: A tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of $100.00 or over, or of any interest therein or income therefrom, in trust or otherwise, to persons or corporations, not exempt by law in this state from taxation on real or personal property .... [MCL 205.201 et seq.; MSA 7.561 et seq., 1899 PA 188, as amended. Emphasis added.] Section 34 of the Lottery Act (1972 PA 239, MCL 432.1 et seq.; MSA 18.969[1] et seq.) provided: No state or local taxes of any kind whatsoever shall be imposed upon the proceeds from a prize awarded by the state lottery. [MCL 432.34; MSA 18.969(34).] The probate judge said: "This court, however, feels that the clear meaning of the State Lottery Statute should be carried out and that states quite clearly that there should be no tax assessed against lottery winnings.” The Court of Appeals said: We find no conflict between those statutes clearly indicating that state or local taxes shall not be imposed on lottery proceeds and those statutes clearly indicating that an inheritance tax shall be imposed upon the transfer of any property. Because the Michigan inheritance tax is not a tax on the property itself, but is instead a tax on the transfer of property, measured by the value of the property so transferred, the inheritance tax may be validly imposed upon the transfer of such property and not violate the provision that lottery proceeds be exempt from taxation. [In re Fish Estate, 219 Mich 369, 373; 189 NW 177 (1922)]; MCL 205.201; MSA 7.561. . . . Therefore, we hold that the right to receive such winnings, as intangible personal property payable to decedent’s estate, became a taxable privilege subject to the state’s inclusion as a measure for imposing inheritance tax upon transfer from decedent to her beneficiaries. [In re D’Amico Estate, 171 Mich App 296, 302-303; 429 NW2d 659 (1988). Emphasis in original.] See Plummer v Coler, 178 US 115, 138; 20 S Ct 829; 44 L Ed 998 (1900), Murdock v Ward, 178 US 139; 20 S Ct 775; 44 L Ed 1009 (1900), and United States Trust Co v Helvering, 307 US 57; 59 S Ct 692; 83 L Ed 1104 (1939). See anno: Statutory provision that speciñed fund or property shall be "exempt from taxation,” "exempt from any tax,” or the like, as exempting such property from estate or succession taxes, 47 ALR2d 999, § 3, p 1003. This Court observed in In re Fish Estate, n 4 supra, p 373, relied on in the dissenting opinion: The weight of authority, however, is not always determined by the use of an adding machine. We not infrequently follow the minority in number of the holdings, and should do so where such holdings appeal to our judgment and convince us that the true rule has been arrived at by the minority in number. The dissent cites Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660, 669-670; 242 NW2d 749 (1976), Ladies Literary Club v Grand Rapids, 409 Mich 748, 753; 298 NW2d 422 (1980), Detroit v Detroit Commercial College, 322 Mich 142, 148; 33 NW2d 737 (1948), St Joseph’s Church v Detroit, 189 Mich 408; 155 NW 588 (1915), Edison v Revenue Dep’t, 362 Mich 158, 162; 106 NW2d 802 (1961), Romeo Homes, Inc v Revenue Comm’r, 361 Mich 128, 137; 105 NW2d 186 (1960), In re Smith Estate, 343 Mich 291; 72 NW2d 287 (1955), and Town & Country Dodge, Inc v Treasury Dep’t, 420 Mich 226, 243; 362 NW2d 618 (1984). The constructional issue presented in the instant case, whether the inheritance tax is a "tax” "of any kind whatsoever,” is somewhat different from the constructional issues presented in the cited cases. In each of the cited cases there was clearly a debatable question concerning the meaning of the words chosen to express the exemption from taxation. Acknowledging that there is rarely if ever such clarity in expression as might justify the use of the "plain meaning” shibboleth, the words "taxes of any kind whatsoever” are at least, in terms, unambiguous. In Michigan Baptist Homes, the question was whether a licensed home for the aged was within an exemption from ad valorem property taxation for charitable or benevolent purposes. In Ladies Literary Club, the question was whether the club was exempt from ad valorem property taxation as an educational institution. In Detroit Commercial College, the question was whether the Detroit Commercial College was an educational institution within an exemption from ad valorem property taxation. In St Joseph’s Church, the question was whether vacant land adjoining a parsonage was "occupied as such” within the meaning of an exemption from ad valorem property taxation. In Edison, the question was whether the construction of a highway was "industrial processing” within the meaning of a use tax exemption. In Romeo Homes, Inc, the question was whether prefabricated homes were within a use tax exemption for materials affixed and made a structural part of real estate. In Smith Estate, the question was whether the natural child of the adopted daughter of the decedent was a "lineal decedent” within the meaning of the inheritance tax law. In Town & Country Dodge, the question was whether monies returned to an automobile dealer as a portion of the finance charge was interest income within the meaning of the Single Business Tax Act. Moreover, a Department of Treasury regulation restated the Plummer rationale. Treasury regulations have been regarded, for purposes of federal taxation, as having the force of law. See Hartley v Comm’r of Internal Revenue, 295 US 216, 220; 55 S Ct 756; 79 L Ed 1399 (1935). The dissent states that "it cannot be said with a certainty 'beyond doubt or cavil’ that the Legislature also intended to preclude any tax 'upon the transfer’ at death of entitlement to a lottery prize. See In re Fish Estate, supra." Post, pp 570-571. In re Fish Estate does not, however, construe the words "upon the transfer of any property” in the inheritance tax statute. See n 1 for text of the statute. The question presented in In re Fish Estate was whether the amount paid to the federal government as an estate tax is deductible from the value of the decedent’s property at the time of decedent’s death in computing state inheritance tax. The only exemption referred to in In re Fish Estate is a $50,000 exemption from the federal estate tax. The statement in In re Fish Estate, supra, pp 373-374, that the inheritance tax is not "a tax upon property,” and that the "right of transmission of property” and "to receive property” upon death "are not inherent rights, but are privileges which may be taxed by a privilege tax,” may be black letter law. D’Amico’s estate does not challenge the power of the state to impose a tax on the value of property or a privilege tax on the transfer or receipt of property. It claims rather that the Legislature, when it enacted that no tax "of any kind whatsoever” shall be imposed upon the proceeds of a state lottery prize, expressly chose not to exercise that power and not to impose the inheritance tax in respect to such proceeds. The statements in In re Fish Estate do not concern or address the question presented, whether the language of the Lottery Act, barring the imposition of "any tax whatsoever,” bars imposition of the inheritance tax in the instant case. No decision of this Court addresses or provides insight in respect to the resolution of that question. The letter, addressed to the attorney for a decedent’s estate, is on the stationery of Stanley D. Steinborn, Deputy Attorney General, and was signed by E. Boomie Mikrut, Assistant Attorney General, with a copy to Francis Gould, Inheritance Tax Division. On September 14, 1983, the department issued the following communication from Gould (see n 10) to "All Inheritance Tax Auditors”: A new development has occurred in the transferring of lottery receivables from a decedent to another. Previously we bad indicated we would consider all lottery winnings as exempt from taxation. Lottery winnings are still exempt in some cases, however, an individual who has received a lottery prize and has a receivable for the payment of funds over a number of years, has an asset. On death, the transfer of property is not the transfer of a lottery winning but a transfer of an account receivable to a beneficiary. This will be taxable. We have had a court case in Macomb County upholding this position and our Attorney General has informed me that it is a proper position. In the future, tax all transfers of accounts receivable from lottery winnings the same as any other transfer of property. [Emphasis added.] The court also noted that the department’s original interpretation had express and implied congressional acquiescence and that it was in accord with the generally understood meaning of the term "debentures.” Leslie Salt Co, supra, pp 396-397. The statute at issue in that case (§ 4 of the Victory Liberty Loan Act of March 3, 1919, 40 Stat 1311) exempted United States government bonds owned by nonresident aliens from taxation at national, state, and local levels. In response to cases cited in support of drawing a distinction between a direct tax on property and an estate tax, the court said: Those cases support the proposition that a provision exempting United States bonds from taxation as to principal and interest, without more, relates exclusively to direct taxation of them as property. The cited cases would be persuasive, if Congress had not shown an intent to use the phrase "exempt . . . from all taxation” to include estate taxes by expressly excepting them in one section of the statute and not in the other, and if the Treasury Department had not for 20 years construed the statute as granting exemption with respect to the estate tax. [Jandorf’s Estate, supra, p 467. First emphasis in original, second emphasis added.] Paulsen v State Lottery Bureau, 167 Mich App 328, 334: 421 NW2d 678 (1988). The additional inheritance tax sought to be imposed on the D’Amico heirs is $13,527.70. The present value, at the time of Rose D’Amico’s death, of the right to receive the fourteen unpaid installments was, as determined by the department, $299,000. That amount multiplied by the state income tax rate of 4.6 percent is $13,754. See post, p 568, n 3. The Legislature did not, however, enact a law escheating all or some part of a decedent’s property, but, rather, an inheritance tax. See n 11.

Griffin, J. Defendant was bound over for trial to face felony charges on the basis of hearsay testimony erroneously admitted at the preliminary examination. Although it appears that the ensuing trial was fair and error free, the Court of Appeals determined that this error compelled automatic reversal of defendant’s conviction. We disagree. Concluding that a harmless error analysis is appli cable, we hold that such an evidentiary deficiency at the preliminary examination is not ground for vacating a subsequent conviction where the defendant received a fair trial and was not otherwise prejudiced by the error. i Following a preliminary examination, defendant was bound over on charges of delivery and conspiracy to deliver cocaine upon the basis of hearsay statements made to police by two alleged coconspirators. Defendant made timely objection to admission of the hearsay evidence. Subsequently, the coconspirators pleaded guilty and then testified at the trial of defendant, who was convicted of the conspiracy to deliver charge. On appeal, the prosecutor conceded that the hearsay statements at the preliminary examination were not admissible under MRE 801(d)(2)(E). The Court of Appeals reversed the conviction on the authority of People v Walker, 385 Mich 565; 189 NW2d 234 (1971). In Walker, the defendant’s car was stopped, and the car and his person were searched by police officers on the basis of a "tip” they received from an informant. The defendant was arrested and subsequently convicted of unlawful possession of narcotics. On appeal, the defendant complained that at the preliminary examination probable cause for the search and seizure of the defendant’s person and automobile had not been established. Motions to quash the information, made by the defendant at the preliminary examination and again prior to trial, were denied. Subsequently, at a preliminary stage of the trial, testimony by a police officer clearly established that in fact there had been probable cause. Nevertheless, the Walker Court set aside the conviction, and stated: From both the Michigan and Federal cases, it is clear that while police officers may proceed upon the basis of information received from an informer and need not disclose the identity of the informer, in order to establish probable cause there must be a showing that the information was something more than a mere suspicion, a tip, or anonymous telephone call, and that it came from a source upon which the officers had a right to rely. This is the showing which should have been made at the preliminary examination in this case, but was not. Unless we require such a showing, the preliminary examination becomes meaningless, and a defendant is forced to stand trial in violation of a proper determination from legally admissible evidence at the preliminary examination stage that a crime has been committed and that there is probable cause to believe he is guilty of it. [Id., pp 575-576. Emphasis in original. See also People v White, 276 Mich 29, 31; 267 NW 777 (1936); People v Kennedy, 384 Mich 339; 183 NW2d 297 (1971).] In this appeal we are urged to reconsider Walker and to hold that error at the preliminary examination stage should be examined under a harmless error analysis. We agree and hold that the evidentiary error committed at the prelimi nary examination stage of this case does not require automatic reversal of the subsequent conviction absent a showing that defendant was prejudiced at trial. ii Initially, it should be recognized that the preliminary examination is not a procedure that is constitutionally based. While it has been determined that a judicial determination of probable cause is a prerequisite to extended restraint of liberty following arrest, the federal constitution does not require that an adversary hearing, such as a preliminary examination, be held prior to prosecution by information. Gerstein v Pugh, 420 US 103; 95 S Ct 854; 43 L Ed 2d 54 (1975). "In Michigan, the preliminary examination is solely a creation of the Legislature — it is a statutory right.” People v Johnson, 427 Mich 98, 103; 398 NW2d 219 (1986) (opinion of Boyle, J.). See also People v Dunigan, 409 Mich 765, 770; 298 NW2d 430 (1980); People v Duncan, 388 Mich 489, 495; 201 NW2d 629 (1972). The Legislature, which created the preliminary examination procedure, has also mandated by statute that a conviction shall not be reversed where error is harmless: No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096. Emphasis added.] MCL 769.26; MSA 28.1096 parallels FR Crim P 52(a), which provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Although the United States Supreme Court has held that certain constitutional violations do require automatic reversal, see, e.g., Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (denial of counsel at trial), "[I]t is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations . . . .” United States v Hasting, 461 US 499, 509; 103 S Ct 1974; 76 L Ed 2d 96 (1983). See also People v Johnson, supra, p 103, n 1. Under the federal system, it is well established that a defendant’s conviction will not be set aside even though only hearsay evidence was presented to the grand jury which indicted him, Costello v United States, 350 US 359, 362; 76 S Ct 406; 100 L Ed 397 (1956), or for other evidentiary errors at the indictment stage, Holt v United States, 218 US 245, 247; 31 S Ct 2; 54 L Ed 1021 (1910). See also United States v Blue, 384 US 251; 86 S Ct 1416; 16 L Ed 2d 510 (1966) (the fact that the grand jury was presented with self-incriminating evidence obtained from the defendant in violation of the Fifth Amendment does not bar prosecution). In its review of Florida court proceedings against a criminal defendant charged under Florida law, the United States Supreme Court made clear that while a defendant presently detained may challenge the probable cause for his confinement, once he has been tried and convicted, there is no requirement under the federal constitution that the conviction be vacated because the defendant was detained pending trial without a determination of probable cause. The Gerstein Court explained: In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v Washington, 369 US 541, 545 [82 S Ct 955; 8 L Ed 2d 98] (1962); Lem Woon v Oregon, 229 US 586 [33 S Ct 783; 57 L Ed 1340] (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v Collins, 342 US 519 [72 S Ct 509; 96 L Ed 541] (1952); Ker v Illinois, 119 US 436 [7 S Ct 225; 30 L Ed 421] (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. [Pugh v Rainwater, 483 F2d 778, 786-787 (CA 5, 1973).] [Id., pp 118-119. Emphasis added.] See also Murphy v Beto, 416 F2d 98 (CA 5, 1969); McCoy v Wainwright, 396 F2d 818 (CA 5, 1968); Scarbrough v Dutton, 393 F2d 6 (CA 5, 1968); cf. Hamilton v Alabama, 368 US 52; 82 S Ct 157; 7 L Ed 2d 114 (1961). The Supreme Court has recognized the viability of the harmless error principle even where fundamental constitutional rights of a defendant are involved at the preliminary examination. In Cole man v Alabama, 399 US 1, 9; 90 S Ct 1999; 26 L Ed 2d 387 (1970), the Court held that because the preliminary hearing prior to indictment is a " 'critical stage’ ” in the course of prosecution under Alabama law, the Sixth Amendment right to counsel attaches. However, instead of reversing the defendant’s conviction, after finding that the right to counsel had been unconstitutionally denied, the Court remanded the case to the state courts for a determination of whether denial of counsel at the preliminary hearing was harmless error. More recently, the Supreme Court reaffirmed its commitment to the harmless error doctrine in a context that is close to this case. In United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986), two government agents appeared together and testified in sequence before a federal grand jury in violation of F R Crim P 6(d), which states that only "the witness under examination” may be present. The United States Court of Appeals for the Fourth Circuit ruled that transgression of Rule 6(d) required automatic reversal of the defendant’s subsequent conviction which came at the conclusion of a five-month jury trial. However, the Supreme Court reversed, and Chief Justice Rehnquist, writing for a majority, explained: The Rule [6(d)] protects against the danger that a defendant will be required to defend against a charge for which there is no probable cause to believe him guilty . . . [b]ut the petit jury’s subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt. It might be argued in some literal sense that because the Rule was designed to protect against an erroneous charging decision by the grand jury, the indictment should not be compared to the evidence produced by the Government at trial, but to the evidence produced before the grand jury. But even if this argument were accepted, there is no simple way after the verdict to restore the defendant to the position in which he would have been had the indictment been dismissed before trial. He will already have suffered whatever inconvenience, expense, and opprobrium that a proper indictment may have spared him. In courtroom proceedings as elsewhere, "the moving finger writes; and, having writ, moves on.” [475 US 70-71. Emphasis deleted.] The Court noted: No long line of precedent requires the setting aside of a conviction based on a rule violation in the antecedent grand jury proceedings .... See, e.g., Gerstein v Pugh, 420 US 103, 119-123 (1975); Coleman v Alabama, 399 US 1, 10-11 (1970); Chapman v California, 386 US 18 [87 S Ct 824; 17 L Ed 2d 705] (1967). [Id., p 71, n 1.] Importantly, the Court found that the error in Meehanik was harmless when measured by a standard which requires a showing that the error prejudicially affected the outcome of the trial. Id., p 72. Subsequently, in Bank of Nova Scotia v United States, 487 US 250; 108 S Ct 2369; 101 L Ed 2d 228 (1988), the Supreme Court dealt with a trial court’s authority to dismiss an indictment prior to trial on the basis of the cumulative effect of several acts of prosecutorial misconduct in the grand jury proceeding. By a vote of eight to one, the Court found the harmless error principle to be applicable. Pointing to Mechanik, supra, the Court said: In United States v Mechanik, 475 US 66 (1986), we held that there is "no reason not to apply [Rule 52(a)] to 'errors, defects, irregularities, or variances,’ occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself.” Id. at 71-72. In United States v Hasting, 461 US 506, we held that "[supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error.” We stated that deterrence is an inappropriate basis for reversal where "means more narrowly tailored to deter objectionable prosecutorial conduct are available.” Aid. We also recognized that where the error is harmless, concerns about the "integrity of the [judicial] process” will carry less weight, ibid., and that a court may not disregard the doctrine of harmless error simply "in order to chastise what the court view[s] as prosecutorial overreaching.” Id. at 507. Unlike the present cases, see infra at 258-259, Hasting involved constitutional error. It would be inappropriate to devise a rule permitting federal courts to deal more sternly with nonconstitutional harmless errors than with constitutional errors that are likewise harmless. [487 US 255-256. Emphasis added.] As Mechanik made clear, if the federal standard were to be applied in this case, the nonconstitu tional error assigned by defendant would not be ground for reversal in the absence of a showing that the error prejudiced the outcome of his subsequent trial. Id., p 72. State courts have also addressed the question before us and have concluded that errors in the preliminary examination proceedings do not require reversal per se on an appeal from a subsequent trial. For example, the California Supreme Court has held that reversal of a conviction is not required unless the defendant shows that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. People v Pompa-Ortiz, 27 Cal 3d 519; 612 P2d 941 (1980). In so holding, the Pompa-Ortiz court expressly overruled precedent (People v Elliot, 54 Cal 2d 498; 354 P2d 225 [1960]) in which it had earlier ruled that preliminary examination errors required reversal per se. See also People v Lofink, 206 Cal App 3d 161, 169-170; 253 Cal Rptr 384 (1988); People v Moore, 185 Cal App 3d 1005, 1017-1018; 230 Cal Rptr 237 (1986); People v Oyaas, 173 Cal App 3d 663, 670-671; 219 Cal Rptr 243 (1985). The California Supreme Court, sitting en banc, has explained its Pompa-Ortiz rule by pointing to art VI, § 13, of the California Constitution which mandates that "a judgment shall not be set aside for error not resulting in a miscarriage of justice.” People v Crandell, 46 Cal 3d 833, 856; 760 P2d 423 (1988). See also People v Alcala, 36 Cal 3d 604; 685 P2d 1126 (1984). The issue at hand has also been addressed by the Colorado Supreme Court. In People v Alexander, 663 P2d 1024, 1025-1026, n 2 (Colo, 1983), it said: The defendant . . . argues that the trial court erred in finding probable cause at the preliminary hearing. Absent unusual circumstances not present here, however, any issue as to the presence of probable cause is rendered moot by the jury’s guilty verdict. “Resolution of these questions must be made prior to trial in order to avoid the anomalous situation where a defendant may be found guilty at trial, and then attempt to have the conviction reversed for a preliminary hearing on probable cause. The illogic of this anomaly is further exemplified by the observation of Judge McGowan, writing for the District of Columbia Circuit Court of Appeals, when he states: " 'Where, as here, the accused has been found guilty of those charges in a full-scale trial that we have otherwise found to be free of error, the chances that he could persuade a magistrate that no probable cause exists for his continued detention are perhaps not ungenerously to be characterized as speculative. Blue v United States [119 US App DC 315] 342 F2d 894 (1964) [cert den 380 US 944; 85 S Ct 1029; 13 L Ed 2d 964 (1965)’].” Kuypers v District Court, 188 Colo 332, 335; 534 P2d 1204, 1206 (1975). Accord People v Horrocks, 190 Colo 501; 549 P2d 400 (1976). We consider the probable cause issue to be moot, and we accordingly do not discuss it further. [See also Commonwealth v Troop, 391 Pa Super 613; 571 A2d 1084 (1990); State v West, 223 Neb 241; 388 NW2d 823 (1986); State v Navarrete, 221 Neb 171; 376 NW2d 8 (1985); State v Tomrdle, 214 Neb 580; 335 NW2d 279 (1983); State v Franklin, 194 Neb 630; 234 NW2d 610 (1975); State v Mitchell, 104 Idaho 493; 660 P2d 1336 (1983), cert den 461 US 934 (1983); Commonwealth v McCullough, 501 Pa 423; 461 A2d 1229 (1983).] We agree with the United States Supreme Court and with state courts which have held that automatic reversal is not warranted in the present circumstances. Like the California Constitution and FR Crim P 52(a), MCL 769.26; MSA 28.1096 clearly mandates that a conviction shall not be reversed for harmless error. Except for this Court’s decision in Walker, we find no impediment to the application of that principle in this case. It is significant that the question of possible application of the harmless error standard was not decided or even discussed in Walker. If, and to the extent that, the Walker decision by this Court can be read as rejecting the applicability of the harmless error doctrine in circumstances such as are presented by this case, it is overruled. In this appeal it is contended that a harmless error analysis would be inconsistent with recently adopted revisions of the Michigan Court Rules which were based upon recommendations by a committee appointed by this Court. Among its recommendations, the committee proposed MCR 6.107(G), which would have incorporated the harmless error principle into postconviction review of preliminary examination errors. The proposed rule read: Motions to Dismiss; Harmless Error on Appeal. If, on proper motion, the circuit court finds a violation of subrule (C), (D), (E), or (F), it shall either dismiss the information or remand the case to the district court for further proceedings. Absent a showing of prejudice, a court may not reverse an otherwise valid conviction because of either a violation of these subrules or an error in . failing to dismiss an information for violation of these subrules. [422A Mich 28 (1985). Emphasis supplied.] It is true that the rule as finally adopted and renumbered by this Court, MCR 6.110(H), does not contain the words emphasized above. However, deletion of this language need not be read as a rejection by this Court of a harmless error analysis in the present situation. Rather, as staff comments which accompanied MCR 6.110(H) explain: Subrule (H) is consistent with current practice. This subrule does not address, and leaves to case law, what effect a violation of these rules or an error in ruling on a motion filed in the trial court may have when raised following conviction. [Mich Ct R, p R 6.1-9.] In other words, as adopted, MCR 6.110(H) was designed merely to reflect the then-existing state of the law. Of course, the new rule could not, and was not intended to, preclude this Court from reexamining the rule in Walker. In our view, this Court can no longer ignore the applicability of MCL 769.26; MSA 28.1096 to facts such as those presented in this case. Since we consider ourselves bound by the legislation which established the preliminary examination procedure, it is reasonable and logical to also consider the Legislature’s harmless error mandate which has direct application to the "admission or rejection of evidence.” This case involves exactly such a situation. Moreover, the instant case provides insight concerning the exacting toll of an automatic reversal rule. When the two coconspirators testified at defendant’s trial, and thus were subject to cross-examination, the hearsay issue was mooted. The trial was rather lengthy for a bench trial, and the error at the preliminary examination was unre lated to the issues which were the focus of the trial. To require automatic reversal of an otherwise valid conviction for an error which is harmless constitutes an inexcusable waste of judicial resources and contorts the preliminary examination screening process so as to protect the guilty rather than the innocent. As Chief Justice Rehnquist explained in Mechanik, supra, p 72: The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences. See Morris v Slappy, 461 US 1, 14 [103 S Ct 1610; 75 L Ed 2d 610] (1983). The "[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible.” Engle v Isaac, 456 US 107, 127-128 [102 S Ct 1558; 71 L Ed 2d 783] (1982). Thus, while reversal "may, in theory, entitle the defendant only to retrial, in practice it may reward the accused with complete freedom from prosecution,” id. at 128, and thereby "cost society the right to punish admitted offenders.” Id. at 127. Even if a defendant is convicted in a second trial, the intervening delay may compromise society’s "interest in the prompt administration of justice,” United States v Hasting, supra at 509, and impede accomplishment of the objectives of deterrence and rehabilitation. These societal costs of reversal and retrial are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial.[ ]_ Otherwise stated, [Procedural rules] are not to be things to which individual litigants have claims in and of themselves. Nothing is so subversive of the real purposes of legal procedure as individual vested rights in procedural errors .... [Pound, The canons of procedural reform, 12 ABA J 541, 543 (1926).] Although we do not overlook the concerns expressed in the dissenting opinion, we believe the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process. Given the viability of that remedy and the enormous price of reversing valid convictions obtained pursuant to fair, error-free trials, we cannot support application of the automatic reversal rule under circumstances such as those presented in this case. Accordingly, we reverse and remand this case to the Court of Appeals for an analysis of whether the admission of hearsay evidence at the preliminary examination constituted harmless error and, if so, for resolution of the other issues raised by defendant in her appeal of right. Riley, C.J., and Brickley and Boyle, JJ., concurred with Griffin, J. MCL 769.26; MSA 28.1096. MCL 333.7401(1), (2)(a)(iii), 750.157a; MSA 14.15(7401X1), (2)(a)(iii), 28.354(1). MRE 801(d)(2) provides in pertinent part: A statement is not hearsay if . . . [t]he statement is offered against a party and is (A) his own statement ... or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy. The Court of Appeals did not address the defendant’s other allegations of error raised on appeal. See MCL 766.1 et seq.; MSA 28.919 et seq. In Michigan hearsay evidence may be presented to a grand jury. Our Rules of Evidence do not apply to grand jury proceedings. MRE 1101(b)(2). In this preconviction setting, the standard for determining whether the error was harmless differed from that applied in Mechanik: [D]ismissal of the indictment is appropriate only "if it is established that the violation substantially influenced the grand jury’s decision to indict,” or if there is "grave doubt” that the decision to indict was free from the substantial influence of such violations. United States v Mechanik, supra at 78 [O’Connor, J., concurring], [487 US 256.] The applicability of this standard in the present context has been recognized by this Court, albeit in dicta. In People v Johnson, supra, the defendant argued that evidence of premeditation and deliberation at his preliminary examination was insufficient to justify binding the defendant over on an open charge of murder, thereby requiring reversal of his second-degree murder conviction. The Johnson Court (per Boyle, J.) disagreed, finding that there was evidence from which the magistrate could have inferred premeditation and deliberation. In a footnote, Justice Boyle discussed the issue of reversals for errors at preliminary examination: While the opinion for reversal bases its result upon an admittedly nonconstitutional error, post, pp 137-138, it errs in the standard it applies to determine whether the error is harmless. Certain constitutional violations require automatic reversal. See, e.g., Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963) (denial of counsel at trial). Other constitutional violations are measured by the standard that requires a court to be convinced "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v California, 386 US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967) (commenting on defendant’s failure to testify at trial could be harmless error); Rose v Clark, 478 US [570]; 106 S Ct 3101; 92 L Ed 2d 460 (1986) (jury instruction shifting the burden of proof to the defendant can be harmless error). Nonconstitutional violations, such as that alleged in the instant case, are measured by a third standard in the federal system: The defendant must show a reasonable probability that the error affected the outcome of the trial. See United States v Mechanik, 475 US 66; 106 S Ct 938; 89 L Ed 2d 50 (1986) (no reversal for grand jury error unless the error affected the outcome of the trial). [427 Mich 115, n 14.] The Elliot case had held that where an accused is illegally bound over due to a material error at the preliminary hearing, the binding over is voidable, and, upon proper objection, the court has no jurisdiction to proceed. In overruling Elliot, the Pompa-Ortiz court rejected the prior cases’ "uncritical use of the term 'jurisdiction’ ” and held that a trial court is not deprived of "jurisdiction” in the fundamental sense ("legal power to hear and determine a cause”) in matters correctable by pretrial motions. 27 Cal 3d 528-529. This Court likewise has held that the circuit court does not lose jurisdiction where a void or improper information is filed. See People v Johnson, supra, p 106, n 7. This Court has previously applied MCL 769.26; MSA 28.1096 in a number of contexts. See, e.g., People v Straight, 430 Mich 418; 424 NW2d 257 (1988); People v Beach, 429 Mich 450; 418 NW2d 861 (1988); People v Crawford, 429 Mich 151; 414 NW2d 360 (1987); People v Blue, 428 Mich 684; 411 NW2d 451 (1987); People v Cash, 419 Mich 230; 351 NW2d 822 (1984); People v Woods, 416 Mich 581; 331 NW2d 707 (1982), cert den 462 US 1134 (1983); People v Weston, 413 Mich 371; 319 NW2d 537 (1982); People v Eady, 409 Mich 356; 294 NW2d 202 (1980); People v Richardson, 409 Mich 126; 293 NW2d 332 (1980); People v Wilkens, 408 Mich 69; 288 NW2d 583 (1980). The trial commenced January 7, 1987, and defendant was found guilty on January 29,1987. An automatic reversal rule would contradict MCR 6.002, which provides: These rules are intended to promote a just determination of every criminal proceeding. They are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. The underlying assumption of the dissent’s dismay at the result of this opinion is that short of a reversal of an error-free trial, we cannot depend on the magistrate who is bound to follow the rules of evidence, the circuit or Recorder’s Court judge who is bound to quash a bindover where the rules of evidence are not followed, and the Court of Appeals which is required to correct error of this nature to maintain the applicability of the rules of evidence in preliminary examinations. We obviously do not share that skepticism. In his dissent in People v Johnson, supra, p 127, n 9, Justice Levin wrote: Any other rule would deprive the accused of any remedy for a defect in the conduct of a preliminary examination. Manifestly, the accused cannot be convicted unless sufficient evidence is adduced at the trial; if the sufficiency of the evidence at the trial cured an insufficiency at the preliminary examina tion, there would be no remedy unless the circuit judge quashed the information or the Court of Appeals or this Court granted an interlocutory appeal from an adverse decision by the circuit judge. Interlocutory appeals are infrequently granted defendants in criminal cases, and, thus, if there is to be any review of the circuit judge’s decision, it can occur only, in the ordinary case, after trial and conviction. If a problem does exist because appellate courts do not grant applications of criminal defendants for interlocutory appeal in sufficient numbers or in appropriate cases, it is suggested that this Court could deal with the problem directly through the exercise of its supervisory authority, rather than by adhering to an arbitrary rule that automatically reverses otherwise valid convictions. For example, the rules of appellate procedure could be amended.

Archer, J. We granted leave to appeal in order to consider two principal questions. The first question is whether four police reports were properly admitted into evidence under either MRE 803(6), the business records exception to the hearsay rule, or MRE 803(8), the public records hearsay exception. The second question is whether the jury was properly instructed on the so-called rescue doctrine. We would hold that the police reports were improperly admitted into evidence and that the jury was improperly instructed on the rescue doctrine. We therefore would reverse the judgment of the Court of Appeals and remand the case for a new trial. i Plaintiff-appellant Charlotte Solomon, personal representative of the estate of Joseph Solomon, filed this wrongful death action against the City of Detroit and Detroit Police Officers John Shuell, Michael Hall, and Richard Nixon after Officer Shuell shot and killed her husband on March 20, 1981. Officers Shuell and Nixon were members of the department’s Western Surveillance Unit. Sergeant Hall was their supervisor. The three officers were plain clothed and drove separate unmarked automobiles. On March 19 and 20, 1981, the officers were investigating a series of armed robberies on Detroit’s west side. Prior to March 19, four armed men had stolen two cars from two separate automobile dealership salesmen while on test drives. Both robberies were at gunpoint. After reporting the robberies, both salesmen told the police that the perpetrators had driven to their dealerships in a Ford Thunderbird, license plate number SYF-830. The Thunderbird was registered to Claudia Williams, and the police began an undercover surveillance of her home at 18603 Curtis Street in Detroit. On March 20, at 2:30 p.m., Officers Shuell and Nixon were assigned to the surveillance of Curtis Street in plain clothes and in separate unmarked vehicles. Alvin Solomon, Joseph Solomon’s son, and a male passenger arrived in an Oldsmobile at the Curtis Street house and picked up two more men. After informing Sergeant Hall, who was also on duty in his own unmarked car, the officers were ordered to follow the Oldsmobile. They followed it to 20045 Ward, where two of the men got out of the vehicle. The car drove on, and the officers continued to follow the vehicle but lost it in traffic. Sergeant Hall ordered the officers to return to Ward Street and watch the house. Later that afternoon, the two suspects, who had previously entered 20045 Ward, left the residence. Sergeant Hall and Officers Nixon and Shuell then stopped and questioned the suspects as they walked down the block away from the house. At approximately the same time as the two suspects were being questioned, another police officer radioed Shuell and Nixon and told them that the Ford Thunderbird used in the armed robberies had returned to the Curtis Street address. Sergeant Hall ordered Shuell and Nixon to return to Curtis Street. Along the way, Nixon spotted the Oldsmobile driven by Alvin Solomon. Alvin, now accompanied by his girl friend, Wynee Green, was driving north on Strathmoor Street. Nixon relayed the information to Shuell and Sergeant Hall and followed the Oldsmobile to 20045 Strathmoor, the Solomon family home. Nixon pulled up behind the Oldsmobile. Shortly thereafter, Shuell stopped in front of the suspect’s automobile. The two officers got out and approached the Oldsmobile. The account of what happened next differs according to the trial testimony. Alvin testified that, after he got out of his car, Nixon rushed him, quickly flashed a badge, threw him toward the car, and confiscated a pellet gun that he carried in his waistband. Shuell ran toward the two, failed to identify himself as a police officer, put his gun to Alvin’s head and dragged him to the rear of the car. Alvin told Wynee to get his father, Joseph Solomon, who came outside with a gun, which was pointed down toward the ground. Neither Nixon nor Shuell identified themselves to Alvin’s father. Before Joseph Solomon could come off the front porch, Shuell fired his gun, striking him. Joseph Solomon kept approaching Shuell and Alvin and fell dead at the end of the driveway. Charlotte Solomon, Alvin’s mother and Joseph’s wife, testified that, at the time of the incident, she and her husband were inside their home watching television. Joseph got up, briefly left the room and came back in and said, "[sjomebody got my child out there.” He went outside with his gun and yelled, "[t]urn my child loose.” Charlotte got to the doorway in time to see her husband fall at the end of the driveway. Nixon testified that, as he approached the Oldsmobile, he showed Alvin his badge and id card and told him he was a police oflicer. As Alvin got out of the vehicle, Nixon saw a gun in Alvin’s waistband, which he confiscated. At this time, Shuell asked Alvin to put his hands on the car so he could be frisked. Alvin resisted, shouting at his girl friend to get his father. As Nixon walked around the car to restrain the girl, he heard a noise at the doorway of the house. Joseph Solomon ran out of the house and came off the porch holding a gun in both hands, extended in a combat stance. Nixon held his badge up and yelled, "Sir, we’re police officers, we’re police officers.” Nixon heard one shot, turned, and saw Joseph Solomon’s hands recoil. He then heard other shots, after which Joseph fell. Nixon also stated that neither Shuell nor he had drawn their guns before Joseph Solomon came out of the house. Shuell testified that both Nixon and he approached the car, showed Alvin their badges, and told him they were police officers. As Alvin got out of his car, Shuell told Nixon he saw a gun in Alvin’s waistband and grabbed Alvin by his left wrist. Shuell told Alvin he was under arrest, and asked him to place his hands on the car. Alvin backed away from the car and told his girl friend to get his father. Shuell told Alvin to go to the rear of the car and put his hands on the trunk. Shuell was frisking Alvin when Nixon yelled, "Police, police, John, look out, he’s got a gun.” Joseph Solomon assumed a two-hand stance and aimed his gun at Shuell. As Shuell grabbed Alvin, Joseph told Alvin to get down. Alvin shouted, "Daddy, don’t do it.” Shuell yelled, "Drop the gun. Police.” As Shuell fell to the ground with Alvin, his pistol was still in its holster. Joseph fired one shot, which missed Shuell. By this time, Shuell had drawn his weapon and returned Joseph Solomon’s fire. Joseph Solomon fired at least one shot. Shuell fired nine, eight of which hit Solomon, instantly killing him. Plaintiff-appellant filed the present case in Wayne Circuit Court. She alleged negligence, assault and battery, and the violation of her husband’s constitutional rights. Before the case went to the jury, defendant Nixon had been dismissed. In addition, the trial judge granted a directed verdict in favor of defendants Michael Hall and the City of Detroit. As to defendant Shuell, the jury returned a special verdict, finding that Shuell was negligent and that his negligence was a proximate cause of Joseph Solomon’s death. Consequently, the jury found plaintiff’s damages to be $100,000. The jury also found, however, that decedent was negligent and that his own negligence was also a proximate cause of his death and assessed this at eighty percent. Accordingly, a judgment was entered in favor of plaintiff for $20,000. Plaintiff subsequently filed a claim of appeal, alleging that the trial court had improperly admitted four exhibits into evidence and had improperly instructed the jury. The Court of Appeals panel, one judge dissenting, rejected plaintiff’s argument that the trial court improperly admitted into evidence four police reports under MRE 803(6), the business records hearsay exception. Although two members of the panel agreed with plaintiff that the trial court also committed error by giving a modified version of SJI2d 13.07, stating the so-called rescue doctrine, the Court found this error to be harmless. The Court of Appeals, therefore, affirmed the decision of the trial court. 166 Mich App 19; 420 NW2d 160 (1988). Plaintiff-appellant subsequently applied for leave to appeal in this Court, which we granted on April 11, 1989, limited to the issues (1) whether the trial court improperly admitted into evidence four police reports prepared during the investigation of decedent’s shooting, and (2) whether the trial court properly instructed the jury on the so-called rescue doctrine. 432 Mich 891 (1989). Subsequently, we ordered the parties to submit supplemental briefs on the applicability of MRE 803(8), the public records hearsay exception, to the four police reports. We also invited amicus curiae briefs to be filed. The order was entered on October 24, 1989. ii The first question presented is whether four police reports were improperly admitted into evidence. Plaintiff’s exhibit 113 and defendant’s exhibit 122 are police department homicide witness statements taken during the investigation of decedent’s death. Both witness statements are in question and answer form. Plaintiff’s exhibit 113 contains Nixon’s version of the decedent’s shooting, and defendant’s exhibit 122 contains Shuell’s. Plaintiff’s exhibit 34A and defendant’s exhibit 121 are preliminary complaint reports, the initial report an officer writes detailing his actions during a particular assignment. A preliminary complaint report is the starting point for the subsequent interdepartmental investigation of an incident. Plaintiff’s exhibit 34A is a supplementary report Sergeant Hall wrote describing in detail his con versation with Officer Shuell immediately following decedent’s shooting. Defendant’s exhibit 121 is Officer Shuell’s report describing his actions during the events leading up to decedent’s death. At various points during the trial, the defense moved to admit each exhibit. The trial court admitted each exhibit over plaintiff’s timely objection, and the Court of Appeals affirmed. Before this Court, the parties concede that the four exhibits are defined as hearsay, MRE 801(c). The exhibits are, therefore, inadmissible under MRE 802, unless subject to an MRE 803 exception. Consequently, we must determine whether the Court of Appeals correctly held that the four reports were properly admitted into evidence and that the trial court did not abuse its discretion when it overruled plaintiff’s timely objection. Hadley v Trio Tool Co, 143 Mich App 319, 328; 372 NW2d 537 (1985). See People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982). A Plaintiff-appellant first argues that the four exhibits are inadmissible under the business records exception to the hearsay rule. MRE 803(6) provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: * * # (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, or events, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.™ The defense offered the four exhibits over plaintiff’s timely objection. Before the trial court, plaintiff argued that, even if the reports were "records” within the meaning of MRE 803(6), the source of information and the circumstances of preparation lacked trustworthiness. Plaintiff reasoned that the reports and homicide witness statements were untrustworthy because when the documents were prepared, the police officers knew they were the subject of a homicide investigation that could result in criminal prosecution, civil liability, and interdepartmental discipline. In addition, the four documents were prepared following a waiver of Miranda rights and in the presence of counsel. Although the trial court noted the circumstances under which the reports were prepared, it nevertheless rejected plaintiff’s argument that the exhibits lacked trustworthiness. As to the motivation to misrepresent, the court acknowledged that the officers could have made their statements in a light most favorable to protect their relationships and avoid interdepartmental sanctions and potential criminal and civil liability. In addition, the court also held, in effect, that the issue of trustworthiness under MRE 803(6) went to the credibility and weight the jury should assign each exhibit and not to admissibility. Because plaintiff could not point to specific facts on the face of each exhibit indicating a lack of trustworthiness, the court overruled plaintiff’s objection and admitted each exhibit into evidence. On appeal, two Court of Appeals panel members affirmed. Judge Shepherd, in dissent, however, would have found that the trial court’s ruling amounted to prejudicial error requiring reversal because "the motivation to misrepresent is obvious.” 166 Mich App 31. The narrow issue presented under the hearsay business records exception, consequently, is whether the trial court improperly held that the four reports satisfied the trustworthiness requirement of MRE 803(6). It is beyond dispute that the presumed trustworthiness of both the source of information reported and the accuracy with which the information is recorded lies at the heart of the business records hearsay exception as it was conceived by the common law, promulgated in model, uniform, and state statutes, and, finally, adopted and enacted in the current Rules of Evidence. We unanimously concluded in Central Fabricators v Big Dutchman, 398 Mich 352; 247 NW2d 804 (1976), that an interoffice memorandum of a purported telephone conversation was inadmissible under MCL 600.2146; MSA 27A.2146, the statutory precursor of MRE 803(6). In Central Fabricators, we noted that trustworthiness is furnished not merely from the high degree of reliance placed upon business records, but also from the circumstances under which traditional business records are prepared: The exception to the hearsay rule for records made in the regular course of business "is justified on grounds analogous to those underlying other exceptions to the hearsay rule. Unusual reliability is regarded as furnished by the fact that in practice regular entries have a comparatively high degree of accuracy (as compared to other memoranda) because such books and records are customarily checked as to correctness by systematic balance-striking, because the very regular ity and continuity of the records is calculated to train the record-keeper in habits of precision, and because in actual experience the entire business of the nation and many other activities constantly function in reliance upon entries of this kind.” McCormick’s Handbook of the Law of Evidence (2d ed), §306, p 720. [Central Fabricators, supra, pp 356-357.] The current business records hearsay exception codified in MRE 803(6) and its federal counterpart, FRE 803(6), derives from two separate and distinct common-law exceptions to the hearsay rule, the shop book rule and the regular entries rule. 5 Wigmore, Evidence (Chadbourn rev), § 1518, pp 426-430; McCormick, Evidence (3d ed), § 305, p 871. The rules were limited in scope and imposed stringent foundation requirements on the parties offering evidence. Notwithstanding the common law’s limitations that in the modern commercial context would seem unduly burdensome and have been appropriately rejected by the modern rules, the justifications for these two common-law hearsay exceptions were soundly rooted in the rationale for excluding hearsay evidence in the first place and continue to be so to this very day. Ideally, a witness’ testimony is evaluated while the witness is under oath, subject to cross-examination, and personally present before the trier of fact. People v Kirtdoll, 391 Mich 370, 386, n 8; 217 NW2d 37 (1974); FRE Advisory Committee Note, 56 FRD 183, 288 (1972). See also Colgrove v Goodyear, 325 Mich 127, 134; 37 NW2d 779 (1949). While the definition of hearsay, both at common-law and under the current rules as well, would exclude much probative evidence where one or more of these ideal conditions is lacking, the common-law hearsay exceptions recognized that, when evaluated in light of two principles, hearsay evidence was in limited circumstances as sufficiently reliable as evidence given under ideal conditions. Wigmore, supra, §§ 1420-1423, pp 251-255. Under the principle of necessity, the admission of hearsay evidence was justified not merely to avoid the loss of a person’s evidence because the witness may be unavailable to personally testify, but also to admit evidence, such as an excited utterance, that may derive from an inherently superior source. Wig-more, supra, § 1421, p 253. The second principle, the circumstantial probability of trustworthiness, arose from the fact that, under certain circumstances, the trustworthiness of the source of information and the accuracy of recording is sufficiently great to be the equivalent of a statement given under the ideal conditions of oath, cross-examination, and in the presence of the trier of fact. Wigmore, supra, § 1422, pp 253-254. It is under the circumstantial probability-of-trustworthiness principle, and to a lesser extent the necessity principle, that the traditional common-law business records exception was premised. Specifically, the circumstantial probability of trustworthiness of traditional business records is suffi ciently great to justify an exception to the hearsay rule because of habit, the detection of errors, and an employer’s reliance on the result. Wigmore, supra, § 1522, pp 442-443. Habit, or the regular and systematic preservation of information, by its very nature calls for accuracy. Id. Consequently, errors or unintentional misstatements are almost certain to be detected. Id. Furthermore, if the employee preparing the report is under a duty to do so or is aware of his employer’s general reliance on the accuracy of the records, a powerful motivation to be accurate is supplied. Id. It is clear that the traditional business records hearsay exception is justified on grounds of trustworthiness: unintentional mistakes made in the preparation of a record would very likely be detected and corrected. Where, however, the source of information or the person preparing the report has a motivation to misrepresent, trustworthiness can no longer be presumed, and the justification for the business records exception no longer holds true. Wigmore, supra, § 1522, pp 442-443, § 1527, p 448; McCormick, Evidence, § 308, pp 875-878. Thus, in Central Fabricators, supra, we found the leading case of Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), persuasive authority supporting the proposition that the motivation to misrepresent is a strong indicator of a lack of trustworthiness. In Palmer, the United States Supreme Court held that a railroad accident report was not made "'in the regular course’ of the business,” a requirement by its nature ensuring trustworthiness, as defined in the federal business records hearsay statute. The Supreme Court reasoned that, although it may have been in the regular course of the railroad’s systematic operations to record its employee’s version of an accident, the admission of the report into evidence would make the act applicable to any recording system, "though it had little or nothing to do with the management or operation of the business as such.” 318 US 113. Thus, the Court concluded that the report was not made "for the systematic conduct of the enterprise as a railroad business. . . . [The report’s] primary utility is in litigating, not in railroading.” 318 US 114. Although in Palmer the Supreme Court analyzed the issue in terms of whether the report was made in the regular course of railroad business as defined in the federal act, the motivation for making the report in the first place lies at the very heart of the act’s definition of "regular course of business,” and, in this respect, the opinion of the United States Court of Appeals for the Second Circuit in Palmer analyzed the report from a slightly different perspective while reaching the same result. The Second Circuit panel noted, as did the Supreme Court, that even though the railroad’s employee was under a duty to his employer to make the report, the circumstances surrounding the preparation of the report, such as the anticipation of highly probable litigation, took the report outside the special legal meaning of "regular course of business”: Each trade has its peculiar jargon and courts rely on that jargon when it finds its way into a statute dealing with that trade. And so with "regular course of business” as applied to records or memoranda in an evidence statute. To a layman, the words might seem to mean any record or paper prepared by an em ployee in accordance with a rule, established in that business by his employer. But according to the jargon of lawyers and judges those words, in discussions of evidence, have always meant writings made in such a way as to afford some safeguards against the existence of any exceptionally strong bias or powerful motive to misrepresent. [129 F2d 976, 984 (CA 2, 1942). Emphasis in the original.] Thus, the Second Circuit concluded that the document was inadmissible under the federal act not merely because it may have been prepared to "perpetuate evidence” in anticipation of litigation, 129 F2d 991, but rather because the looming specter of potential liability supplied a powerful motivation to misrepresent. Because the railroad and its employee were exposed to highly probable litigation and potential liability, any possible errors in the report could no longer be considered mere misstatements. Consequently, the report was "dripping with motivations to misrepresent.” 129 F2d 991. Although the dissenting panel member noted that "there is hardly a grocer’s account book which could not be excluded on that basis,” 129 F2d 1002 (Clark, J., dissenting), Palmer has subsequently been read to stand for the proposition that the trial court, in its discretion, may exclude evidence meeting the literal requirements of the business records exception where the underlying circumstances indicate a lack of the trustworthiness business records are presumed to have. McCormick, supra, § 308, p 877. As Palmer indicates, trustworthiness, under the current Rules of Evidence, no longer serves as a mere philosophical justification for the admission of evidence otherwise excluded as hearsay. Rather, under MRE 803(6) and FRE 803(6), trustworthiness is itself an express threshold condition of admissibility. First, the rule on its face provides that evidence otherwise meeting the literal requirements of MRE 803(6) and FRE 803(6) shall not be admissible where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” MRE 803(6), FRE 803(6) (emphasis added). In addition, the evolution of the business records hearsay exception from its common-law origins to the current Rules of Evidence further supports this interpretation. Beginning in the 1920’s, various model and uniform acts were formulated to ease the burdensome restrictions that had developed under the common-law business records exception. Many of the limitations, such as the narrow definition of "business,” the requirements of "originality,” and the unavailability of all participants involved in the preparation of a record, no longer served to ensure the practical trustworthiness of the proffered evidence. McCormick, supra, §§ 305-306, pp 871-872; Wigmore, supra, § 1561a, pp 489-490. The 1927 Commonwealth Fund Act, which served as the model for the federal and Michigan statutory forerunners of the current Rules of Evidence, eliminated these restrictions which no longer comported with modern commercial practices. At the same time, the Commonwealth Fund Act ensured the trustworthiness business records were presumed to have by requiring that a "writing or record” was prepared "in the regular course of any business” and that "it was the regular course of such business” to prepare the "writing or record.” The 1936 Uniform Business Records As Evidence Act further broadened and simplified the traditional business records exception. At the same time, however, the act expressly introduced the element of judicial discretion, directing the trial court to determine, as a matter of admissibility, whether "the sources of information, method, and time of preparation were such as to justify [a record’s] admission.” Uniform Rule of Evidence 63(13) also expressly referred to "the judge,” and it provided for the trial court to determine not merely whether the "writing[]” was "made in the regular course of a business,” but also whether "the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” Because the uniform rule eliminated the requirement that the memorandum be prepared by a person with knowledge of the facts recorded, the rule’s policy was to expressly require the trial court to ensure that the proffered evidence had the trustworthiness business records traditionally were presumed to have. It is the uniform rule’s language of the trustworthiness element that most closely parallels that of the rule adopted by the United States Supreme Court, which Congress ultimately enacted as FRE 803(6). The evolution of the business records hearsay exception clearly indicates that FRE 803(6) and MRE 803(6) have eliminated burdensome common-law restrictions and have broadened the scope of the exception. In order to ensure the same high degree of accuracy and reliability upon which the traditional, but narrowly construed business records exception was founded, the current rules also recognize that trustworthiness is the principal justification giving rise to the exception. Thus, FRE 803(6) and MRE 803(6) provide that trustworthiness is presumed, subject to rebuttal, when the party offering the evidence establishes the requisite foundation. Even though proffered evidence may meet the literal requirements of the rule, however, the presumption of trustworthiness is rebutted where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Consequently, in cases like the present, the trial court, upon a party’s timely objection, must determine as a question of admissibility whether the proffered evidence lacks trustworthiness. Upon the basis of our review of this record, we conclude that the trial court improperly held that the proffered exhibits did not lack trustworthiness. We would hold, therefore, that, under the facts of this case, the four exhibits lacked trustworthiness within the meaning of MRE 803(6) and were improperly admitted into evidence. The trial court improperly concluded that the sources of information and the circumstances under which the four police reports were prepared did not lack trustworthiness as that term is narrowly defined in MRE 803(6). As to the officer’s motivation to misrepresent, we agree with dissenting Judge Shepherd, that, in this case, the motivation to misrepresent is obvious and indicates a lack of trustworthiness. Officers Nixon and Shuell’s witness statements were taken during the course of the department’s homicide investigation, which they knew could result in a criminal prosecution. They, along with Sergeant Hall, would also be subject to the department’s internal affairs investigation, which could result in interdepartmental discipline. Finally, it was highly probable that the officers and the city faced civil litigation and potential liability. Although the trial court rejected this potential motivation to misrepresent as too speculative, it did recognize that even Officer Nixon, who did not fire a single shot at dece dent, possibly was "anything but totally frank with thé homicide investigators.” Rather than reject as speculative plaintiff’s argument that the officers had a motivation to misrepresent, we believe that, when the exhibits are viewed under the circumstances of their preparation, the motivation to misrepresent becomes clearer. Although the trial court noted that there is no evidence suggesting an improper motivation to misrepresent on the part of departmental homicide investigators and that proper departmental procedures were followed, it is these very same procedures that indicate a lack of trustworthiness as that term is defined under MRE 803(6). The homicide witness statements, for example, were taken following a waiver of Miranda rights, which could only heighten the officers’ awareness that anything said could and would be used against them in a court of law. In addition, the witness statements and the preliminary complaint reports were taken and prepared with the assistance of counsel, who would, at the very least, advise the officers not to make any inculpatory statements. The homicide statements were taken on March 25 and 26, five and six days following decedent’s shooting, which permitted time for reflection and deliberation not contemplated within the meaning of MRE 803(6). We conclude, therefore, that the homicide investigation reports, as well as the pre liminary complaint reports, lacked trustworthiness and, when made under these circumstances and in light of the highly probable civil and criminal litigation and departmental discipline the officers potentially faced, were not the type of records contemplated by MRE 803(6). The trial court also incorrectly analyzed the significance of trustworthiness under MRE 803(6). The trial court held in effect that, under MRE 803(6), trustworthiness and the presence of a self-serving motivation to misrepresent were questions for the jury and did not affect admissibility. We agree that the credibility and weight to be assigned to otherwise admissible evidence is a question for the trier of fact. We disagree, however, that, under MRE 803(6), trustworthiness is not also a question of admissibility. As the rule and its theoretical underpinnings indicate, trustworthiness is, under MRE 803(6), unlike MCL 600.2146; MSA 27A.2146, an express condition of admissibility. The flaw in the trial court’s reasoning was that its analysis was essentially a strict and literal interpretation of MCL 600.2146; MSA 27A.2146, which preceded MRE 803(6). Unlike the present rule, § 2146 expressly provided that, once the appropriate foundation had been established, "[a]ll other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility.” Unlike §2146, MRE 803(6) now expressly provides that trustworthiness is a question of admissibility and is not an issue solely affecting the weight of the evidence. We finally note that each exhibit is replete with multiple layers of hearsay within hearsay. Plaintiff’s exhibit 34A, Sergeant Hall’s preliminary complaint report, is typical, and it recounts a conversation Sergeant Hall had with Officer Shuell following decedent’s shooting. Under MRE 805, hearsay within hearsay is excluded where no foundation has been established to bring each independent hearsay statement within a hearsay exception. See In re Freiburger, 153 Mich App 251, 260; 395 NW2d 300 (1986). Although the trial court agreed with plaintiff’s counsel that the exhibits were replete with multiple hearsay statements within hearsay, the court nevertheless overruled plaintiff’s timely objection. The court reasoned that plaintiff’s objection went to the weight and credibility the jury should assign each exhibit. We disagree, however, with the lower court’s ruling and reasoning. Because defendant failed to establish an appropriate foundation for each independent hearsay statement to fall within a hearsay exception, most, if not all, of the information contained in each report is inadmissible hearsay and was improperly admitted into evidence. B Plaintiff-appellant also argues that each exhibit is inadmissible under the public records exception to the hearsay rule. MRE 803(8) excepts from the hearsay rule: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement per sonnel, and subject to the limitations of MCL 257.624; MSA 9.2324.[ ] Because MRE 803(8)(A) is limited to "records or reports” describing the general activities of an agency per se, the four exhibits do not fall within subsection (A) since they relate to a single specific incident. Attorney General v John A Biewer Co, Inc, 140 Mich App 1, 16; 363 NW2d 712 (1985); Hewitt v Grand Trunk W R Co, 123 Mich App 309, 326-327; 333 NW2d 264 (1983). The four exhibits are also inadmissible under MRE 803(8)(B), which excepts from the hearsay rule records of matters observed and reported pursuant to a duty. Although the four exhibits do meet the literal requirements of MRE 803(8)(B), they are nevertheless inadmissible because of the circumstances under which they were prepared and because they are replete with multiple layers of hearsay within hearsay. As with the business records hearsay exception, MRE 803(6), inherent trustworthiness also lies at the heart of the public records hearsay exception codified in MRE 803(8). See FRE Advisory Committee Note, 56 FRD 183, 311 (1972). See also Wig-more, supra, §§ 1630-1632, pp 617-621. Chief Justice Riley, then a Court of Appeals judge, also noted in Hewitt v Grand Trunk W R Co, supra, that the rationale giving rise to the traditional public records exception was rooted not merely in the practical necessity of relieving public officials from becoming " 'a class of official witnesses,’ ” but rather in the high probability that the declarant would properly discharge his duty to make an accurate and reliable report: McCormick’s treatise on the law of evidence explains the purpose, scope and justification for this exception: "The special trustworthiness of official written statements is found in the declarant’s official duty and the high probability that the duty to make an accurate report has been performed. . . . "A special need for this category of hearsay is found in the inconvenience of requiring public officials to appear in court and testify concerning the subject matter of their statements. Not only would this disrupt the administration of public affairs, but it almost certainly would create a class of official witnesses. Moreover, given the volume of business in public officers, the official written statement will usually be more reliable than the official’s present memory.” McCormick, Evidence (2d ed), § 315, pp 735-736. [Hewitt, supra, p 326.] Thus, the principle justification for excepting public records from the hearsay rule is trustworthiness, which is generally ensured when records are prepared under circumstances providing an official duty to observe and report. Our Court of Appeals has previously taken into consideration the circumstances under which documents are prepared in order to determine whether they fall within the public records hearsay exception. In Attorney General v Biewer, supra, the Court concluded that documents prepared in anticipation of litigation do not fall within the scope of MRE 803(8)(B) because they lack trustworthiness. At issue in Biewer was whether several Department of Natural Resources memoranda, setting forth the costs the agency incurred during the investigation of defendant’s plant for ground water contamination, fell within the scope of MRE 8Q3(8)(B). The Court concluded the memoranda were beyond the scope of MRE 803(8)(B) not merely because there was no specific legal duty imposed on dnr employees to report agency investigative expenditures, but rather because the memoranda were prepared to document the investigatory costs that the dnr sought to recover as damages in a civil lawsuit. 140 Mich App 17. Consequently, the circumstances of preparation indicated the memoranda were prepared for litigation, and "[t]he inherent trustworthiness of documents prepared by a public official in carrying out his duties which justifies the public records exception does not apply to this case.” Id. It is clear that under certain circumstances, such as when records are prepared in anticipation of litigation or where the preparer or source of information had a motivation to misrepresent, trustworthiness, the principle rationale for admissibility under MRE 803(8), is no longer present, even though a record may meet the literal requirements of the rule. See Wigmore, supra, § 1633(7), p 624. Thus, we again take note of the circumstances under which the four exhibits in the present case were prepared, see ante, pp 126-129, and likewise conclude they were improperly admitted into evidence under MRE 803(8)(B). Under MRE 803(8)(B), trustworthiness is the cardinal justification for the admissibility of public records otherwise excluded as hearsay, and the circumstances under which the four exhibits in this case were prepared do not furnish the same high degree of reliability and accuracy that the literal requirements of MRE 803(8)(B) were intended to ensure. Rather than affecting solely the weight of the evidence, the circumstances under which these four exhibits were prepared touch upon the underlying threshold issue of admissibility. In addition, each record, as previously noted, see ante, pp 128-129, also contains numerous statements of hearsay within hearsay. MRE 805. Consequently, we would hold that the four exhibits are inadmissible hearsay and were improperly admitted into evidence under MRE 803(8). c The admission of the four exhibits into evidence over plaintiff’s timely objection was clearly improper and constituted an abuse of discretion. We also agree with Judge Shepherd that the prejudice to plaintiff is obvious. "The reports, given their imprimatur as official police documents, might be viewed as more credible than the testimony of live witnesses. It is impossible to conclude the jury, faced with a quasi-official document which purports to offer an objective recitation of the 'facts,’ would not place heavy reliance on its accuracy.” 166 Mich App 31 (Shepherd, J., dissenting). When added to the fact that the exhibits create the impression that decedent came out of his home specifically intending to shoot someone even though his own son would be endangered, the error cannot be deemed harmless. Because the substantial rights of the plaintiff were adversely affected, automatic reversal is required. Swartz v Dow Chemical Co, 414 Mich 433, 444; 326 NW2d 804 (1982); Ilins v Burns, 388 Mich 504, 510-511; 201 NW2d 624 (1972). Ill The second question presented is whether the trial court properly instructed the jury on the so-called rescue doctrine. SJI2d 13.07 provides: A person who goes to the rescue of another who is in imminent and serious peril caused by the negligence of someone else is not contributorily negligent, so long as the rescue attempt is not recklessly or rashly made. Over plaintiff’s timely objection, the trial court read to the jury a modified version of SJI2d 13.07: If you find, under the facts, from the evidence, that Alvin Solomon was in imminent and serious peril, a person who goes to the rescue of another who is in imminent and serious peril caused by the negligence of someone else, is not contributorily negligent, so long as the rescue attempt is not recklessly or rashly made. The basis of plaintiff’s objection was that the victim need not be in actual danger in order for the rescue doctrine to apply, and that the instructions misled the jury by stating contributory negligence principles instead of comparative negligence principles. The Court of Appeals affirmed. Although the Court concluded that the trial court had erroneously instructed the jury, the Court deemed the error harmless. The Court held that the rescue doctrine applies if the rescuer reasonably believes the victim is in actual danger. Consequently, the victim need not ever have been in actual danger in order for the doctrine to apply. The Court found the error harmless, however, because on the whole, the jury instructions adequately presented plaintiff’s theory of the case to the jury and properly instructed the jury on comparative negligence principles. Consequently, we must determine whether the Court of Appeals properly held that the trial court erroneously instructed the jury and whether the error was harmless. A Under the rescue doctrine, the tortfeasor whose negligence endangers the victim owes the victim’s rescuer a duty of reasonable care. Brugh v Bigelow, 310 Mich 74, 77, 80; 16 NW2d 668 (1944), citing Wagner v Int'l R Co, 232 NY 176; 133 NE 437 (1921); Prosser & Keeton, Torts (5th ed), § 43, pp 288-289, §44, pp 307-308. Since rescuers, as a class, are foreseeable, the tortfeasor’s duty of care owed to the rescuer is independent of that owed to the victim. Prosser & Keeton, supra, § 44, p 308. Traditionally, the rescue doctrine has served two purposes. First, the doctrine established a causal nexus linking the tortfeasor’s negligent conduct to the rescuer’s injuries. See Parks v Starks, 342 Mich 443; 70 NW2d 805 (1955). Consequently, the fact that the rescuer voluntarily exposed himself to an increased risk of harm was not, as a matter of law, deemed to be a superseding cause of the rescuer’s injuries that would discharge the tortfeasor’s liability. Sweetman v State Hwy Dep’t, 137 Mich App 14, 26-27; 357 NW2d 783 (1984); Restatement Torts, 2d, § 445; Prosser & Keeton, supra, § 44, pp 307-308. Second, the doctrine also provided that, when the rescue attempt itself was reasonable, the rescuer’s recovery was not otherwise absolutely barred by the affirmative defense of contributory negligence merely because the rescuer voluntarily exposed himself to an increased risk of injury in order to save a third person. Sweetman, supra, pp 26-27; 2 Restatement Torts, 2d, § 472, p 521; Prosser & Keeton, supra, § 44, pp 307-308, § 65, pp 451-453. An injured rescuer’s recovery would still be barred, even if the rescue attempt itself was reasonable, when the rescuer did not exercise reasonable care in the manner in which he carried out the attempt. Sweetman, supra, p 27; 2 Restatement Torts, 2d, §472, comment c, p 522; SJI2d 13.07. Thus, as the Court of Appeals noted in Sweetman, the application of the rescue doctrine requires a two-step analysis. First, the trier of fact must determine whether a reasonable person under the same or similar circumstances would have acted as did the rescuer. To determine this, the trier of fact must balance the utility of the rescuer’s conduct against the magnitude of the increased risk of harm. See Moning v Alfono, 400 Mich 425, 433-434; 254 NW2d 759 (1977); Sweetman, supra, pp 26-27. If the rescue attempt itself is reasonable, then the rescuer is not deemed comparatively negligent merely for voluntarily exposing himself to an increased risk of harm in order to save another. The second step of the analysis is to determine whether the rescuer carried out the rescue attempt in a reasonable manner. If the rescuer did not, then the rescuer’s recovery is reduced by his comparative degree of fault. Sweet-man, supra, pp 26-27. The Court of Appeals correctly held that the rescue doctrine applies even if the victim never was in actual danger. Although previous Michigan cases held that the victim had to be in actual danger at the time of the rescue attempt, pr if not, at least shortly before, it is clear that the dispositive issue determining whether the rescue attempt itself is reasonable is whether the rescuer acted as a reasonable person under the same or similar circumstances. Because the inquiry as to whether the rescue attempt itself was reasonable also rests upon whether the utility of the rescue attempt outweighs the increased risk of harm the rescuer faces, the Court of Appeals correctly determined that the rescue doctrine applies even if the victim never was in actual danger. Accord Prosser & Keeton, supra, § 44, p 306, n 45 and pp 307-308. Because the trial court instructed the jury that Alvin Solomon had to be in actual danger at the time of the rescue attempt, we agree with the Court of Appeals that the instruction was erroneous. Consequently, the instruction was also misleading because it did not clearly charge the jury to undertake its inquiry from the viewpoint of a reasonable person acting under the same or similar circumstances as decedent. See Sweetman, supra, pp 26-28. B The Court of Appeals deemed the instructional error harmless because it found that the jury instructions as a whole adequately stated plaintiff’s theory of the case and, therefore, did not constitute error requiring reversal. See Baker v Saginaw City Lines, Inc, 366 Mich 180, 189-190; 113. NW2d 912 (1962); Scalabrino v Grand Trunk W R Co, 135 Mich App 758, 766; 356 NW2d 258 (1984), lv den 422 Mich 877 (1985). The Court also reasoned that, because it had reduced plaintiff’s award by eighty percent, the jury must have been properly instructed on comparative negligence principles. We disagree and would hold the instructional error prejudicial and inconsistent with substantial justice. Under the instructions the trial court read to the jury, the jury could not properly analyze plaintiff’s theory of the case under the rescue doctrine. Plaintiff’s theory of the case was that the rescue attempt itself was reasonable and that decedent carried out the rescue attempt in a reasonable manner. In light of the fact that Alvin never was in actual danger, however, the trial court in effect told the jury that the rescue doctrine did not apply and that the rescue attempt itself was unreasonable. Consequently, the instructions precluded the jury from properly considering whether a reasonable person would have undertaken a rescue attempt under these same circumstances and in the same manner. Thus, it is no comfort to state that the jury was otherwise properly instructed on comparative negligence principles and, notwithstanding the instructional error, undertook an otherwise proper negligence analysis. The simple fact is that the jury, under these instructions, could not determine whether the rescue attempt itself was reasonable. Thus, plaintiff’s theory of the case was not adequately presented to the jury. Plaintiff suffered prejudice inconsistent with substantial justice, and, therefore, reversal is required._ CONCLUSION As we noted in Moncrief v Detroit, 398 Mich 181; 247 NW2d 783 (1976), police reports will not usually qualify for admission into evidence under the business records exception to the hearsay rule. In the present case, we would hold that the four police reports were improperly admitted into evidence under MRE 803(6) because each exhibit lacked the trustworthiness that the rule requires as a condition of admissibility. Each exhibit also contains numerous statements of hearsay within hearsay, MRE 805, and is not otherwise admissible as a public record, MRE 803(8). We also conclude that plaintiff suffered substantial prejudice because of the reports’ imprimatur as "official” police records and their depiction of decedent’s conduct. We also would hold that the jury was erroneously instructed on the rescue doctrine. Because the trial court’s instructions did not adequately present plaintiff’s theory of the case to the jury and the jury could not otherwise undertake a proper negligence analysis, we would hold the error cannot be deemed harmless. The judgment of the Court of Appeals should be reversed, and the case remanded for a new trial consistent with this opinion._ Levin and Cavanagh, JJ., concurred with Archer, J. The jury also found that Shuell did not commit assault and battery. In addition, the jury did not answer whether decedent’s constitutional rights had been violated. The dissenting judge did not address the jury instruction issue. (c) Hearsay. "Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [MRE 801(c).] Hearsay is not admissible except as provided by these rules. [MRE 802.] Neither party argues that the exhibits are admissible under MRE 804. MRE 803(6) is identical to FRE 803(6) except that MRE 803(6) is limited to "acts, transactions, occurrences, or events,” while FRE 803(6) applies to "acts, events, conditions, opinions, or diagnoses . . . .” Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). The record reveals that, during oral argument outside the pres ence of the jury, plaintiff’s counsel informed the court that the officers were advised of their constitutional rights and provided counsel. Plaintiff-appellant concedes before this Court that the four exhibits were "kept in the course of a regularly conducted business activity” and that it was the department’s regular practice to compile such reports. Therefore, we assume, without deciding, that these two elements of MRE 803(6) have been established. Any writing or record whether in the form of an entry in a book or otherwise, made as a memorandum of any act, transaction, occurrence or event shall be admissible in evidence in all trials, hearings and proceedings in any cause or suit in any court, or before any officer, arbitrators, or referees, in proof of said act, transaction, occurrence or event if it was made in the regular course of any business and it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. All other circumstances of the making of such writing or record including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility. The term "business” shall include business, profession, occupation and calling of every kind. [MCL 600.2146; MSA 27A.2146.] In addition to requiring that the entries be regularly made at or about the time of the transaction and as a part of the routine of the business, other common restrictions were that (1) the party using the book not have had a clerk, (2) the party fie a "supplemental oath” to the justness of the account, (3) the books bear an honest appearance, (4) each transaction not exceed a certain limited value, (5) witnesses testify from their experience in dealing with the party that the books are honest, (6) the books be used only to prove open accounts for goods and services furnished the defendant (thus making them unavailable for proof of loans, and goods and services furnished under special contract or furnished to third persons on defendant’s credit), and (7) other proof be made of the actual delivery of some of the goods. [McCormick, supra, §305, p 871. See also Laughlin, Business entries and the like, 46 Iowa L R 276, 282-283 (1961).] See Wigmore, supra, § 1420, p 251. "The purpose and reason of the hearsay rule is the key to the exceptions to it.” 28 USC 695 (currently codified as amended at 28 USC 1732). The federal business records statute is substantially identical to MCL 600.2146; MSA 27A.2146. Hoffman v Palmer, 129 F2d 976 (CA 2, 1942). See also Laughlin, n 11 supra, p 289 (Palmer "violates the letter” of the federal statute). The Commonwealth Fund Act was essentially identical to 28 USC 695 (currently codified as amended at 28 USC 1732) and MCL 600.2146; MSA 27A.2146. See Morgan, The Law of Evidence, Some Proposals for Its Reform (New Haven: Yale University Press, 1927), p 63. § 1. Definition. — The term "business” shall include every kind of business, profession, occupation, calling or operation of institutions, whether carried on for profit or not. §2. Business Records. — A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. [9A ULA 506 (1965).] (13) Business Entries and the Like. Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness. [9A ULA 637 (1965).] Instead of prescribing as does Model Code Rule 514 that the memorandum must be made by the person having knowledge of the act, event or condition or must be transmitted by such person in the course of the business for inclusion in the memorandum, the broader policy of the Uniform Act is adopted leaving it up to the judge to determine whether or not the sources of information, method and time of preparation reflect trustworthiness. [Uniform Rules of Evidence, comment to ¶ 13, 9A ULA 646 (1965).] The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness. [56 FRD 183, 300-301 (1972).] The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary-system — that he is not in the presence of persons acting solely in his interest. [Miranda v Arizona, n 7 supra, p 469.] See n 10 for text. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. [MRE 805.] MRE 803(8) is identical to FRE 803(8) except for the reference to MCL 257.624; MSA 9.2324 and the omission of FRE 803(8)(C) (evaluative reports), which was rejected as inconsistent with prior Michigan law. See Swartz v Dow Chemical Co, 414 Mich 433, 443-444; 326 NW2d 804 (1982). See also Bradbury v Ford Motor Co, 419 Mich 550, 554; 358 NW2d 550 (1984). In Hewitt, the Court concluded in dicta that an accident report prepared by an officer without a duty to report did not fall within the scope of MRE 803(8)(B). Although records meeting the literal requirements of the public records hearsay exception have traditionally been admitted into evidence, "a statement otherwise admissible is to be excluded where there existed for the declarant a special interest or motive to misrepresent. No doubt, in a given case, circumstances may justify the exclusion of an official statement where a strong motive to misrepresent appears to have existed . . . .” Wigmore, supra, § 1633(7), p 624. (Emphasis in original.) Although in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979), we abolished the contributory negligence doctrine as an absolute bar to a negligent plaintiff’s recovery, comparative negligence principles now apply in rescue cases. Sweetman, supra, p 26. See, e.g., Parks v Starks, 342 Mich 443; 70 NW2d 805 (1955); Brown v Ross, 345 Mich 54; 75 NW2d 68 (1956); Hughes v Polk, 40 Mich App 634; 199 NW2d 224 (1972), lv den 388 Mich 770 (1972). Sweetman, supra. We also agree that the jury instruction was erroneous and misleading because it stated the contributory negligence doctrine instead of comparative negligence principles. MCR 2.613(A). The harmless error standard set forth in MCR 2.613(A) is applicable in all civil actions. Johnson v Corbet, 423 Mich 304, 326; 377 NW2d 713 (1985). The police report is a writing. It could be admitted into evidence as an exhibit if the proponent can show that it meets the requirements of the business records exception. However, because of the "nature” of police business and the circumstances under which such reports are usually made, the possibility of police reports so qualifying is unlikely. [Moncrief, supra, p 189.] Although the erroneous admission of the four police reports and the instructional error each are independent grounds requiring reversal because plaintiff suffered substantial prejudice, the cumulative effect of these errors also requires reversal. Haynes v Seiler, 16 Mich App 98, 103; 167 NW2d 819 (1969). See Hickey v Zezulka, 177 Mich App 606, 623; 443 NW2d 180 (1989).

Boyle, J. We consider whether the Court of Appeals properly reversed the trial court’s decision to terminate alimony under an express provision in the parties’ divorce judgment. We conclude that the Court of Appeals applied an erroneous standard in reviewing the decision of the trial court. i After some twenty-eight years of marriage, the parties were divorced by a judgment of the Monroe Circuit Court dated, April 23, 1985, which was taken by settlement of the parties. Pursuant to the divorce judgment, plaintiff Kenneth Beason was to pay alimony of $320 per month to defendant, Mary Beason. The divorce judgment provided, however, "that said alimony payments shall terminate upon the re-marriage of the said Mary L. Beason or when the said Mary L. Beason should reside with an unrelated adult male person.” On April 8, 1986, plaintiff filed a motion for the permanent termination of alimony, alleging that defendant was residing with an unrelated male person, John Robinson, in defendant’s house at 15475 Dayton Road in Monroe, Michigan. At a hearing on plaintiff’s motion, John Robinson testified that as a long-distance truck driver, he often made trips lasting several days and that he was outside of Monroe County most of the time. According to Robinson, he considered his residence to be a mobile home which he had purchased in January or February of 1986. Before that, he considered his residence to be an apartment which he rented until the purchase of the mobile home. Robinson stated that "on occasion” he used the mobile home as a mailing address, but that he would have important mail such as paychecks or credit card bills sent to a post office box. He testified that he never used the Dayton Road address as a mailing address. Robinson’s thirty-two-year-old niece also lived in the mobile home free of rent and, according to Robinson, performed services such as doing laundry and taking care of the mobile home for him. Robinson testified that he did not keep any clothing or personal articles at defendant’s home. He did change clothes at the Dayton Road address after work and before going out to dinner with the defendant, but he changed into clothes that he brought with . him. Because of the nature of his work, Robinson carried a change of clothing at all times. Robinson kept his Trans-Am automobile at defendant’s house when he was out of town. Robinson stated that when he went to work he some times drove his own car and sometimes drove defendant’s, a green Thunderbird. According to Robinson, defendant probably drove his car to work more often than she drove her own. Robinson testified that he did not help defendant with her bills or give her money. He did maintain her lawn and shrubbery, and would sometimes come over to mow the lawn when defendant was not at home. However, he testified that defendant had not given him a key to the Dayton Road address and had not given him permission to be there when she was not at home. On one occasion, Robinson performed a repair inside the house when defendant was not there. Defendant stated that on this occasion she told Robinson where the spare key was so that he could let himself into the house. Defendant Mary Beason testified that Robinson was a very frequent visitor to her home and had spent the night there. She stated that they spent most of the time together on weekends, and when Robinson was not out of town, she would see him a lot. Every Friday night he took her out to dinner. Robinson would occasionally pay for groceries if he and defendant went to the store to get something to prepare for dinner. The parties stipulated, however, that defendant paid her own bills for gas, water, electricity, cable television, garbage pickup, and telephone. Defendant testified that she never received mail for Robinson at Dayton Road. According to defendant, Robinson did not keep personal effects such as clothing, a razor, or a toothbrush at her house. Defendant testified that Robinson spent as many as two consecutive nights in a row at her house, and when he had long weekends he generally spent them with her. There was testimony from Sandra Chittum, the adult daughter of the parties, who stated that she had seen no evidence of anyone other than defendant living at the Dayton Road address. She had seen no male clothing in the house and when she used items from the bathroom cabinet had never noticed any toothbrushes other than those of defendant and Mrs. Chittum’s own sons. Plaintiff Kenneth Reason hired a private investigator to make observations of defendant’s residence on Dayton Road. The surveillance revealed that on three nights, March 21, 22, and 28, 1986 (a Friday, Saturday, and Friday, respectively), defendant and Robinson were seen entering the Dayton Road address and thereafter all the lights went out. Defendant and Robinson testified that defendant had accompanied Robinson on an over-the-road trip to Texas, and defendant testified that she "might have” accompanied Robinson on a trip to Indiana. Defendant and Robinson both stated their intention to marry, although defendant had doubts because of Robinson’s drinking. Because of these doubts and other unexpected events, defendant and Robinson had postponed their wedding at the time of the hearing on plaintiff’s motion to terminate alimony. The trial court in its opinion found John Robinson to be "less than candid” and concluded that his testimony was not to be believed. The court considered the definition of the term "reside” as used in the divorce judgment and concluded, after reference to dictionary definitions of the term and case law in the area of jurisdiction and venue, that "a common meaning of the word is ... a place where one remains for a time either permanently or continuously ... a place where a person makes his home.” The trial court found Robinson was in the closest telephone contact with defendant, and that since his vehicle was stored at her home it was logical that upon return from his trips he would go there to secure the vehicle. The court specially noted that Robinson did not leave the vehicle at his mobile home. The court further found that while Robinson did not regularly pay defendant’s bills, he did assist her by regularly taking her out to eat. The court noted that although Robinson denied having a key to defendant’s house, he had done work there in her absence. The court found this, together with the parties’ stated intention to marry, the fact that they had traveled cross-country together, and the fact that Robinson had on numerous occasions stayed overnight at the Dayton Road address, sufficient to show that defendant did reside with an unrelated adult male. In an opinion by two members of the panel, the Court of Appeals reversed, stating, "We are convinced that we would have reached a different result had we occupied the position of the trial court.” Unpublished opinion per curiam of the Court of Appeals, decided January 13, 1988 (Docket No. 98716). ii Divorce cases are equitable actions that historically were heard and decided by a chancellor rather than a jury. Although Michigan no longer has separate equity courts, divorce actions continue to be decided by judges rather than by juries. _ In a divorce case, the trial judge performs two distinct functions. First, the court must find facts on the basis of the evidence presented, and then the court must exercise its discretion in fashioning a disposition. In its fact-finding role, the trial court must hear the evidence, choose which witnesses to credit when the evidence conflicts, and, pursuant to MCR 2.517, must place findings of fact on the record or in a written opinion. Upon the basis of the facts, the trial court must then make a disposition of the case. Before the advent of no-fault divorce, the ultimate dispositional ruling was whether a divorce should be granted. Today, the court still must exercise its discretion in fixing the amount of alimony or child support, in dividing property between the parties, or in modifying provisions of the divorce judgment. All of these are dispositional rulings. The trial court’s disposition is of course intimately related to its findings of fact, yet it is distinct. We are not asked here to review a dispositional ruling such as an award of alimony or a modification of such award. Plaintiff Kenneth Beason moved to enforce the terms of the divorce judgment which provided that alimony would terminate if defendant should reside with an unrelated adult male. To rule on plaintiff’s motion, the court was required to make a factual determination regarding the living arrangements of the parties. Then, the court was required to construe the word "reside” in the divorce judgment. Finally, the trial court had to apply the definition of the term "reside” as used in the divorce judgment to the facts as it found them, to determine whether defendant’s alimony should be terminated. m .Equity actions historically were treated differently from law cases on appeal. It is frequently said that divorce cases are reviewed de novo. Stratmann v Stratmann, 287 Mich 94, 95; 282 NW 914 (1938); Westgate v Westgate, 291 Mich 18, 23; 288 NW 860 (1939); Wells v Wells, 330 Mich 448, 452; 47 NW2d 687 (1951). However, in examining Michigan case law to determine the meaning of "de novo” review, we find such a variety of terminology and application that a single clear standard of appellate review does not emerge. Mindful of our distance from the trial bench function, we do see one clear and consistent historical theme: appellate courts have recognized the superior position of the trial court in evaluating the evidence and have hesitated to interfere with factual findings. Very early, this Court recognized the superior position of the trial court in making factual determinations and, consequently, limited review of such determinations: Scattered through the large record there are many traces of truth and of untruth, and numerous instances of coloring and of exaggeration. There is much to believe and much to disbelieve, and the case is one of those where the decision of the judge exercising primary jurisdiction on matters of fact ought not to be overruled by a court of appeal except upon clear and satisfactory grounds. The appellate tribunal ought to be fully persuaded that it must have reached a different conclusion had it occupied the position of the court appealed from and been favored with all the advantages of that court for judging rightly. [Nicholas v Nicholas, 50 Mich 162; 15 NW 64 (1883). Emphasis in original.] Despite some shifting degree of certainty which the appellate courts have felt necessary before reversing a factual determination, this Court and the Court of Appeals have recognized the advantage of the trial judge in making factual determinations. While we acknowledge that it is impossible and perhaps unwise to articulate a bright-line standard of review, we take this occasion to observe that it is as true today as when first stated that "[t]here are many aids possessed by the judge who hears the oral testimony in deciding who of the witnesses are truthful that do not get upon the printed page.” Donaldson v Donaldson, 134 Mich 289, 291; 96 NW 448 (1903). This Court has stated that where the circuit judge saw the witnesses and heard the testimony we give great weight to the findings of fact. Bowler v Bowler, 351 Mich 398; 88 NW2d 505 (1958); Hartka v Hartka, 346 Mich 453; 78 NW2d 133 (1956). It is also said that in a chancery case the decree of the trial court will not be reversed unless the record fails to sustain the decree. Whittaker v Whittaker, 343 Mich 267; 72 NW2d 207 (1955); Kuntze v Kuntze, 351 Mich 144; 88 NW2d 608 (1958). Appellate review of a trial court’s factual determinations was again addressed in the Michigan Court Rules of 1963. GCR 1963, 517.1, modeled after F R Civ P 52(a), directed: Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge the credibility of those witnesses who appeared before it. The Michigan Court Rules continue to recognize that the trial court has a superior opportunity to determine factual questions, and that the trial court’s factual determinations are entitled to due regard. MCR 2.613(C). Because MCR 2.613(C) and its predecessor do not distinguish between law and equity cases, our appellate courts have struggled from time to time with the apparent contradiction between the historic standard of review de novo in divorce cases and the court rule’s command that trial court findings of fact must not be set aside unless "clearly erroneous.” While the de novo standard continues to be cited in appellate review of divorce cases, we find that the review accorded is not truly de novo. The appellate courts have consistently, and properly, given deference to the factual findings of the trial court. Thus, the "clearly erroneous” standard of review articulated in MCR 2.613(C) merely restates the standard of review formerly applicable in chancery proceedings. See Michigan Court Rules Practice (3d ed), R 2.613, pp 575-576. FR Civ P 52(a), from which GCR 1963, 517.1 (now MCR 2.613[C]) was patterned, "was intended, in all actions tried upon the facts without a jury, to make applicable the then prevailing equity practice.” United States v United States Gypsum Co, 333 US 364, 394-395; 68 S Ct 525; 92 L Ed 746 (1948). The standard then applicable in federal practice was described as follows: The practice in equity prior to the present Rules of Civü Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court. The findings were never conclusive, however. A finding is "clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. [Id., p 395.] This Court has adopted the standard for clear error set forth in Gypsum Co and Tuttle v State Hwy Dep’t, 397 Mich 44, 46; 243 NW2d 244 (1976). Despite the repeated citation of a standard of review de novo in divorce cases in our state, we recognize today that the definition of clearly erroneous which we adopted in Tuttle does not contemplate a review de novo. Pursuant to MCR 2.613(C), then, the Court of Appeals was required to accept the trial court’s findings unless those findings were clearly erroneous. In Anderson v Bessemer City, 470 US 564, 573-574; 105 S Ct 1504; 84 L Ed 2d 518 (1985), the United States Supreme Court emphasized the deference which is due a trial court’s factual determination in a review for clear error under F R Civ P 52(a): This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. ... If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Thus, if the trial court’s account of the evidence is plausible in light of the record viewed in its entirety, the Court of Appeals may not reverse. However,_ In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. [Zenith Radio Corp v Hazeltine Research, 395 US 100, 123; 89 S Ct 1562; 23 L Ed 2d 129 (1969). See also United States v Yellow Cab Co, 338 US 338, 341-342; 70 S Ct 177; 94 L Ed 150 (1949).] This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. [Anderson, supra at 575.] Unlike the findings of a jury, which are binding in the sense that all inferences in favor of the prevailing party must be accepted, a trial court’s factual conclusions in a divorce action are only presumptively correct. However, the burden is on the appellant to persuade the reviewing court that a mistake has been committed, failing which the appellate court may not overturn the trial court’s findings. See 9 Wright & Miller, Federal Practice & Procedure, § 2585, p 729. The trial court’s conclusions of law are not subject to the "clearly erroneous” standard of review. 9 Wright & Miller, supra, § 2585, p 732. Case v Morrisette, 155 US App DC 31, 39; 475 F2d 1300 (1973). Where a finding is derived from an erroneous application of law to facts, the appellate court is not limited to review for clear error. Nor is an appellate court so limited where the trial judge’s factual findings may have been influenced by an incorrect view of the law. Pavlides v Galveston Yacht Basin, Inc, 727 F2d 330, 339, n 16 (CA 5, 1984); Weissmann v Freeman, 868 F2d 1313, 1317 (CA 2, 1989), cert den 493 US —; 110 S Ct 219; 107 L Ed 2d 173 (1989). Chaparral Resources, Inc v Monsanto Co, 849 F2d 1286, 1289 (CA 10, 1988). In summary, we hold that the factual findings of a trial court in a divorce case are to be reviewed for clear error. A finding is clearly erroneous if the appellate court, on all the evidence, is left with a definite and firm conviction that a mistake has been committed. While this standard gives the appellate judge more latitude than when reviewing a trial by jury, it does not authorize a reviewing court to substitute its judgment for that of the trial court; if the trial court’s view of the evidence is plausible, the reviewing court may not reverse. iv We find that the Court of Appeals applied an erroneous standard of review to the factual determinations of the trial court when it stated that "although this court hears divorce cases de novo, it will not substitute its judgment for that of the trial court . . . unless convinced that it would have reached a different result.” The "would have reached a different result” inquiry, in our view, invites a substitution of judgment by the reviewing court. However, this case cannot be resolved by a simple application of the clearly erroneous standard of review, because it appears the trial court’s findings of fact may have been based on an erroneous view of the law. The meaning of the term "reside” in the divorce judgment may be a factual or legal question. However, the record before us does not reveal how the trial court arrived at its definition of the term. The trial court resorted to several extrinsic sources to define "reside” without first determining that the term was ambiguous. Until the trial court has been afforded an opportunity to clarify the basis of its earlier findings regarding the meaning of the term "reside,” we cannot ascertain whether the proper legal rule has been misapplied in arriving at the findings of fact made below. Thus, we remand this case to the trial court for consideration of the meaning of the term "reside” in the parties’ divorce judgment, and direct the trial court to state the legal and factual basis for its definition of the term, specifying which findings are of fact and which of law. MCR 7.316(A)(7). We do not retain jurisdiction. Riley, C.J., and Levin, Brickley, Cavanagh, Archer, and Griffin, JJ., concurred with Boyle, J. Const 1963, art 6, § 5 abolished the distinction between law and equity proceedings as far as practicable, and prohibited the office of master in chancery. MCL 552.12; MSA 25.92 provides: Suits to annul or affirm a marriage, or for a divorce, shall be conducted in the same manner as other suits in courts of equity; and the court shall have the power to award issues, to decree costs, and to enforce its decrees, as in other cases. Construction of the term "reside” may be a question of fact or law. Courts in other jurisdictions, interpreting terms such as "reside,” "cohabit” and "live with” as used in divorce judgments which incorporate a stipulation of the parties, generally interpret the judgment in the same manner as a contract. See Gertrude LQ v Stephen PQ, 466 A2d 1213, 1217 (Del, 1983); Kenyon v Kenyon, 496 So 2d 839, 840 (Fla App, 1986). Thus, if the meaning of the terms used is clear and unambiguous, the decree may be construed as a matter of law. See Brown v Brown, 122 Misc 2d 849, 851-852; 472 NYS2d 550 (1984), modified 505 NYS2d 648 (1986); Bell v Bell, 393 Mass 20, 21, n 1; 468 NE2d 859 (1984), cert den 470 US 1027 (1985). However, where the meaning is not clear, the court may consider extrinsic evidence to determine the intent of the parties. Desler v Desler, 56 Or App 812, 817; 643 P2d 655 (1982). The rule in Michigan is essentially simüar. A divorce decree is to be construed in light of the findings of fact and conclusions of law. Walker v Walker, 327 Mich 707, 712; 42 NW2d 790 (1950). If it is unambiguous when viewed in this manner, it may be construed as a matter of law. See Tessmer v Tessmer, 261 Mich 681, 683; 247 NW 93 (1933) (read in light of the divorce proceedings, the decree was not ambiguous). However if the terms used are ambiguous, they may be interpreted and clarified by extrinsic evidence. Vigil v Vigil, 118 Mich App 194, 200; 324 NW2d 571 (1982); Bers v Bers, 161 Mich App 457, 464; 411 NW2d 732 (1987). It has been variously stated that the appellate court "generally does not reverse or modify unless convinced that it would have had to reach another result had it occupied the position of the trial court,” Paul v Paul, 362 Mich 43, 47; 106 NW2d 384 (1960), or "unless convinced that we would have reached a different conclusion had we occupied the situation of the trial court,” Bradley v Bradley, 292 Mich 370, 372; 290 NW 832 (1940), "that we should have reached a different conclusion had we occupied the position of the trial court,” Wellman v Wellman, 305 Mich 365, 372; 9 NW2d 579 (1943), or "unless it is clear the reviewing court could have reached a different result had it occupied the position of the trial judge.” York v York, 113 Mich App 306, 309; 317 NW2d 604 (1982). United _ States Supreme Court cases subsequent to Gypsum Co make explicit that a review for clear error pursuant to FR Civ P 52(a) does not contemplate review de novo: Some courts state that a finding which is unsupported by "substantial evidence” is clearly erroneous. See, e.g., Duty v United States, 735 F2d 1012, 1015 (CA 6, 1984); Canizzo v Farrell Lines, Inc, 579 F2d 682, 686 (CA 2, 1978), cert den 439 US 929 (1978). Examination of the origins of this interpretation of the language of Rule 52(a) reveals that a review for substantial evidence is a review for bare sufficiency of the trial court’s findings. See Baltimore & O R Co v Postom, 85 US App DC 207, 208; 177 F2d 53 (1949); Miller v Comm’r of Internal Revenue, 203 F2d 350, 353 (CA 6, 1953); Federal Security Ins Co v Smith, 259 F2d 294, 295 (CA 10, 1958). Thus, a finding which is unsupported by substantial evidence must be reversed. However, the converse is not true; a finding which is supported by substantial evidence is not immune from further review. See Jones v Pitt Co Bd of Ed, 528 F2d 414, 418 (CA 4, 1975); Williams v Procunier, 735 F2d 875, 878 (CA 5, 1984), cert den 469 US 1075 (1984). The extent of such further review, of course, is the question before us today. In making the threshold ambiguity determination, the court may look to the findings of law and fact on which the divorce judgment was based. Walker, Tessmer, n 3 supra.

Per Curiam. The defendants are insurance companies that cannot agree with regard to their respective liability for personal protection insurance (first-party) benefits that are payable to the plaintiff’s subrogors. The Court of Appeals has concluded that the obligation must be borne by defendant American Commercial Insurance Company. We conclude, however, that the Legislature has directed that the obligation be shared equally by these defendant insurers. i This case arises out of an accident that occurred on August 22, 1985. An automobile collided with a motorcycle operated by Gerald Wilson. His passenger was Monique Wilson. Mr. Wilson was seriously injured; Ms. Wilson was killed. Neither the owner nor the operator of the automobile was insured. The owner of the motorcycle was likewise uninsured. Further, neither Wilson had purchased an insurance policy. They were, however, covered by three policies that had been issued to their aunt, Mary N. Taylor, with whom they lived. Each of the defendant insurance companies had insured one of Ms. Taylor’s three vehicles. The policies issued by State Farm Insurance Company and by Allstate Insurance Company provided for coordination of benefits. The policy issued by American Commercial Liability Insurance Company did not. The insurers agree that, aside from the possible effect of the coordination-of-benefits clauses, they are of equal priority under the no-fault act. Following the accident, the medical expenses of Mr. Wilson and Ms. Wilson were met by the Department of Social Services through its medical assistance program (Medicaid). After paying over $120,000 in medical and related expenses, the dss sought reimbursement from the defendant insurers. When no payment was received, the dss exercised its statutory right to bring a subrogation action to recover the insurance proceeds that were owed to the Wilsons._ II In August 1986, the dss filed in circuit court a pair of complaints, one pertaining to Mr. Wilson, and one to Ms. Wilson. The circuit court later consolidated the cases. To date, no genuine controversy has arisen concerning whether the dss must be reimbursed. All appear to agree that such payment must be made. The issue is whether the burden must be borne by American Commercial alone on the ground its policy provided full benefits, whereas the policies issued by State Farm and Allstate provided coordinated benefits. American Commercial believes that, because the three insurers are of equal priority, each must share the burden equally. In circuit court, State Farm and Allstate moved for summary disposition, urging that American Commercial alone is liable. After considering the arguments of the parties, the circuit judge granted the motions. The court ordered that the dss take judgment against American Commercial "for whatever amount of damages are [sic] established,” and that a dismissal enter in favor of State Farm and Allstate. hi The Court of Appeals affirmed the summary disposition. In explaining its decision, the Court relied upon Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46; 429 NW2d 637 (1988): We agree with the trial court’s decision. State Farm and Allstate both had coordination of bene fits clauses in their policies which allowed the policyholder to pay a lower premium. American Commercial did not have a coordination of benefits clause in its policy. By operation of the coordination of benefits clauses, State Farm and Allstate were made secondary insurers and American Commercial became the primary insurer. MCL 500.3109a; MSA 24.13109(1), MCL [500.]3115(2); MSA 24.13115(2); Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46, 49-53; [429] NW2d [637] (1988). As the primary insurer, American Commercial is solely responsible for the amount owed to dss. Auto-Owners, supra. American Commercial then applied to this Court for leave to appeal, urging us to reverse the judgments of the circuit court and the Court of Appeals. After deciding to grant leave to appeal in Auto-Owners, we issued an order holding the present case in abeyance pending our decision in Auto-Owners. The parties in the Auto-Owners case settled their dispute, however, and stipulated to a dismissal of the appeal. Thus we turn again to consideration of the present case. IV In Auto-Owners, the Court of Appeals considered the issue "whether no-fault coverage with a coordination-of-benefits provision is excess coverage over equal priority no-fault coverage without such a clause,” which it characterized as "an issue of first impression.” Id. at 49-50. After noting that the statutory phrase "other health and accident cover age” has been applied in a variety of contexts, the Court of Appeals turned to our decision in LeBlanc v State Farm Mutual Automobile Ins Co, 410 Mich 173, 201; 301 NW2d 775 (1981). In that decision, we stated: Furthermore, the fact that "other health and accident coverage” immediately follows a reference to "personal protection insurance benefits” compels a conclusion that "other health and accident coverage” clearly means coverage other than personal protection insurance benefits payable under any no-fault policy. The Court of Appeals panel that decided Auto-Owners chose not to rely upon the quoted statement from LeBlanc, however. The panel observed that LeBlanc concerned whether Medicare benefits were subject to coordination, and predicted that this Court "would reach a different conclusion” if presented with a case directly posing the question found in Auto-Owners and the present case. 171 Mich 53. Thus the Auto-Owners panel concluded that the insurer that had issued coordinated-benefits coverage (Farm Bureau) should prevail over the insurer that had issued a full-benefits policy (Auto-Owners). v In the present case, the insurers agree that they are of equal statutory priority. Each must therefore share the cost of the personal protection insurance benefits that have been paid by the dss, unless the coordination-of-benefits clauses in the State Farm and Allstate policies can be invoked with respect to the full-benefits policy issued by American Commercial. It is true, as the Court of Appeals observed in Auto-Owners, that our LeBlanc decision concerned another issue. However, we adhere to our conclusion in LeBlanc that the phrase "other health and accident coverage” clearly means coverage other than personal protection insurance benefits payable under a no-fault policy. We again emphasize that, in crafting MCL 500.3109a; MSA 24.13109(1), the Legislature placed the reference to "other health and accident coverage” immediately after a reference to "personal protection insurance benefits.” The legislative history of MCL 500.3109a; MSA 24.13109(1) was presented in our LeBlanc opinion. 410 Mich 194-197. See also Federal Kemper Ins Co, Inc v Health Ins Administration, Inc, 424 Mich 537, 546-550; 383 NW2d 590 (1986). While the legislative history of MCL 500.3109a; MSA 24.13109(1) is not dispositive, it supports our con elusion. That is, the purpose of MCL 500.3109a; MSA 24.13109(1) was to eliminate duplicate coverage, typically where automobile insurance and health insurance would both be available to an injured motorist. However, there is no duplicate coverage under the no-fault act, since insurers are given priorities, and, where the priorities are equal, the liability is divided, not duplicated. A full-benefits no-fault policy having the same statutory priority as a coordinated no-fault policy does not constitute "other health and accident coverage” within the meaning of MCL 500.3109a; MSA 24.13109(1). Thus a no-fault insurer that has issued a coordinated policy may not "coordinate” benefits so as to place the full obligation to pay on a no-fault insurer that is of equal statutory priority, and that has issued a full-benefits policy. For these reasons, and in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for further proceedings consistent with this opinion. MCR 7.302(F)(1). Riley, C.J., and Brickley, Cavanagh, Boyle, Archer, and Griffin, JJ., concurred. Levin, J. (separate opinion). I would grant leave to appeal. I adhere to the view that peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required. While no factual assessment is required in the instant case, the law is not settled. This Court granted leave to appeal in Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 171 Mich App 46; 429 NW2d 637 (1988), lv gtd 433 Mich 880 (1989), to address the question peremptorily decided in the per curiam opinion filed today. Auto-Owners was settled, and the appeal in this Court was dismissed. Counsel for defendantappellees, State Farm Insurance Company and Allstate Insurance Company, will wonder why Auto-Owners was grant worthy, but the decision of the Court of Appeals in the instant case, which adopted the reasoning of Auto-Owners, is not. The opinion in Auto-Owners was written by a judge sitting by assignment and was signed by two judges of the Court of Appeals. The Court of Appeals per curiam opinion in the instant case was signed by two different judges of the Court of Appeals and a judge sitting by assignment. Four Court of Appeals judges and two judges sitting by assignment have thus so expressed themselves. No contrary authority is cited by the appellant or in the per curiam opinion filed today other than a statement in the opinion that is conceded to be obiter dictum. I would, again, grant leave to appeal._ MCL 500.3107; MSA 24.13107. MCL 500.3114(1); MSA 24.13114(1). (This case would fall within MCL 500.3114[5]; MSA 24.13114[5], but for the inapplicability of paragraphs [a] through [d] in MCL 500.3114[5]; MSA 24.13114[5].) MCL 500.3109a; MSA 24.13109(1). MCL 400.105 et seq.; MSA 16.490(15) et seq. MCL 400.106(l)(b)(ii)(b); MSA 16.490(16)(l)(b)(ii)(b). Dep’t of Social Services v American Commercial Liability Ins Co, unpublished opinion per curiam of the Court of Appeals, decided January 30,1989 (Docket No. 107100). Auto-Owners Ins Co v Farm Bureau Mutual Ins Co, 433 Mich 880 (1989). Dep’t of Social Services v American Commercial Liability Ins Co, unpublished order of the Supreme Court, dated September 28, 1989 (Docket No. 85493). See n 7. For example, in Nyquist v Aetna Ins Co, 84 Mich App 589; 269 NW2d 687 (1978), aff’d 404 Mich 817 [280 NW2d 792] (1979), this Court held that Blue Cross-Blue Shield benefits were subject to coordination with personal injury protection benefits payable under a no-fault policy containing the § 3109a clause and offered at a reduced premium. Although Blue Cross-Blue Shield is technically not "insurance,” this Court reasoned that the Legislature clearly intended to include this type of medical benefits coverage within the scope of § 3109a. In numerous other decisions, this Court has expanded the scope of coverages included within the meaning of "other health and accident coverage” subject to § 3109a coordination of benefits: Lewis v Transamerica Ins Corp of America, 160 Mich App 413; 408 NW2d 458 (1987), lv den 429 Mich 855 (1987) (benefits under Teamsters Welfare Plan); Auto-Owners Ins Co v Lacks Industries, 156 Mich App 837; 402 NW2d 102 (1986), lv den 428 Mich 902 (1987) (employer’s self-insurance plan); United States Fidelity & Guaranty Co v Group Health Plan of Southeast Michigan, 131 Mich App 268; 345 NW2d 683 (1983) (health maintenance organizations); Bagley v State Farm Mutual Automobile Ins Co, 101 Mich App 733; 300 NW2d 322 (1980) (military medical and disability benefits). [Auto-Owners, 171 Mich App 50.] Indeed, the holding in LeBlanc has been substantially affected by federal law. See 42 USC 1395y(b)(l). MCL 500.3115(2); MSA 24.13115(2). Roek v Chippewa Valley Bd of Ed, 430 Mich 314, 322; 422 NW2d 680 (1988) (Levin, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich 867, 868-875; 451 NW2d 304 (1990) (Levin, J., dissenting); People v Little, 434 Mich 752, 769-770; 456 NW2d 237 (1990) (Levin, J., dissenting). See Schweiker v Hansen, 450 US 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”). This Court’s last decision construing § 3109a of the Insurance Code, MCL 500.3109a; MSA 24.13109(1), is Tatum v GEICO, 431 Mich 663; 431 NW2d 391 (1988).

Brickley, J. This case presents the question whether procedural due process is denied a public school teacher accused of misconduct when the attorney who sits as hearing officer at the teacher’s pretermination hearing before the local board of education is a member of the same law firm as the attorney representing the charging party, in this case the superintendent. We answer this question in the negative and remand this case to the State Tenure Commission for review de novo of the merits of the teacher’s administrative appeal. A teacher’s pretermination hearing is not a full, adjudicatory hearing to which a full range of procedural safeguards attaches. As stated by the United States Supreme Court in Cleveland Bd of Ed v Loudermill, 470 US 532, 545-546; 105 S Ct 1487; 84 L Ed 2d 494 (1985), the purpose of a pretermination hearing, unlike a full post-termination adjudicatory proceeding, is not to definitively resolve the propriety of the discharge [but to provide] an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.[ ] I FACTS AND PROCEEDINGS Scott Kurtz is a tenured teacher who has been employed by the Plymouth-Canton Community School District since 1976. In November 1982, while Kurtz was teaching at Central Middle School, the superintendent of the school district filed written charges against him, alleging that he violated the district’s policy regarding the use of physical force in the restraint of an eleven-year-old student. The board of education adopted a resolution to accept the charges and to proceed in accordance with the provisions of the teacher tenure act. The charges and the resolution alleged that the inappropriate use of corporal punishment by Kurtz amounted to reasonable and just cause for suspension. The board provided Kurtz with a copy of the charges, the board’s resolution suspending him, and a notice of hearing. Kurtz requested a private hearing, and the hearing commenced on December 15, 1982. The board adopted a resolution appointing attorney Dennis Pollard as hearing officer. William Albertson, a member of the same law firm as Pollard, represented the superintendent at the hearing. The president of the board of education noted on the record that the board retained the right to overrule Pollard’s rulings on motions or evidentiary objections and that the board retained the exclusive authority to evaluate and judge the facts. Kurtz objected to the procedures adopted by the board. He contended that the board’s delegation of power to Pollard was excessive, in that it vested in the hearing officer the discretion to rule on procedural and evidentiary matters unless overruled by a majority vote of the board. He requested permission to conduct a voir dire examination of Pollard and moved for Pollard’s disqualification because of his relationship with Albertson. He also moved to conduct voir dire examinations of members of the board and to recuse those found unable to render a fair and impartial ruling on the issues presented. In an opinion and order dated January 12, 1983, hearing officer Pollard denied the objections raised to the procedures adopted by the board, denied the motion to examine the hearing officer, and granted, in part, the motion to examine the members of the board. During the hearing, Kurtz and several other witnesses testified regarding the incident which gave rise to the present charges. At the conclusion of the hearing, both parties submitted proposed findings of fact and conclusions of law to the board. Pollard attended the board’s deliberations, answered questions posed by individual board members, and took notes, which he used to prepare a draft decision. On February 21, 1983, the board issued its decision. The board found that Kurtz initiated the physical confrontation with the student and that Kurtz made no attempt to use available alternate means, such as directing the student to leave the classroom or using the classroom telephone to request assistance. The board concluded that Kurtz violated school policy on the use of corporal punishment that amounted to a breach of profes sional ethics and resulted in injury to a student through the use of unreasonable force. The board suspended Kurtz without pay for the remainder of the second semester of the school year and for the first semester of the following year, with no seniority to accrue during the suspension. As a precondition to his return to employment, Kurtz was ordered to submit to a psychiatric evaluation and to present to the board a recommendation that he was psychologically fit to resume his classroom responsibilities. Kurtz appealed to the State Tenure Commission, claiming that the procedures adopted by the board denied him due process and that the record did not support the board’s finding of just and reasonable cause for the imposition of discipline. Kurtz specifically objected to the board’s selection of Pollard as hearing officer due to his professional relationship with Albertson. He also objected to Pollard’s attendance at the board’s deliberations. Additional testimony was taken at a hearing held before the Tenure Commission on April 25, 1983. Pollard acknowledged that the school district had been a client of his firm for several years and opined, as did Superintendent John Hoben, that the board members were aware that he and Albertson were members of the same law firm. Although Pollard did not draft the charges against Kurtz, he provided a letter of advice to the board regarding the legal ramifications of the charges and an overview of the tenure process and prepared the resolution outlining the role of the hearing officer which was later adopted by the board. Pollard explained that, prior to the board’s deliberations, board members were provided with copies of the transcripts as well as with copies of proposed findings of fact and conclusions of law prepared by the parties. During the deliberations, Pollard took notes, discussed the charging party’s burden of proof, and advised the board on legal points which arose. Pollard stated that the conclusions reached after the hearing were arrived at solely by the board. Following the board’s deliberations, Pollard prepared, and the board adopted, a draft decision based on the board’s findings. The testimony of the members of the board of education was taken by deposition and submitted to the commission following the hearing. Board member Kirchgatter testified that Pollard only participated in the board’s discussion when asked to clarify a point of law. Board member McClendon stated that Pollard was engaged because a competent attorney was needed to carry forth a proper hearing. He further stated that the board went through the testimony and spent a lot of time discussing the case, and that the decision drafted by Pollard was consistent with the findings made by the board and was reviewed by the board before it was adopted. McClendon testified that Pollard did not comment on the strength of the evidence or the credibility of witnesses, or suggest appropriate discipline. He concluded that "certainly the arrival at what was fact and what was not fact was purely a function and an operation of the Board of Education, and was not done by Mr. Pollard.” Board member Thomas testified that while the board’s deliberation was guided by a series of questions formulated by Pollard, Pollard did not participate in the discussion or resolution of those questions. The Tenure Commission issued its decision on November 8,1984. The commission stated that the use of counsel in a dual role had not met with unqualified approval, but that school boards are permitted to employ one counsel in a dual role in adjudicative proceedings. The commission concluded, however, that because the board members were aware that Pollard and Albertson were members of the same law firm, Pollard’s presence during the controlling board’s deliberations violated due process. The commission also concluded that the subsequent provision of a hearing de novo was not adequate to remove the taint of the initial decision made by a biased tribunal and that Kurtz must be reinstated and paid all salary lost. The commission did not reach the question whether the record established just and reasonable cause to support the discipline imposed by the board. The board of education filed a petition for review in Ingham Circuit Court. Following a hearing, the court issued a written opinion concluding that the commission’s decision "that Mr. Kurtz did not receive a fair hearing was not a substantial and material error of law.” The court did not address whether the evidence presented to the board supported the discipline imposed. The Court of Appeals reversed and remanded the case to the Tenure Commission. The Court stated: In Niemi v Kearsley Bd of Ed, 103 Mich App 818, 821-823; 303 NW2d 905 (1981), the attorney who regularly served as the controlling school board’s advisor represented the charging party in disciplinary proceedings before the same board. In deciding whether this practice was inherently unfair, we recognized that the attorney’s dual role of representing the charging party and advising the board carried with it the potential for prejudice, but concluded that the practice was not one that violated principles of due process per se. 103 Mich App 821-822. We again decline to hold that the involvement of attorneys from the same firm in a single admin istrative proceeding, with one attorney acting in an advisory capacity and the other attorney acting in a representative capacity, per se constitutes a violation of due process of law. Since we find nothing in this particular record to otherwise substantiate Kurtz’ claim of unfairness, we reverse the circuit court order as a matter of law. Pollard did not serve as a decisionmaker, as the controlling board retained the power to decide the case on the merits. Kurtz does not allege actual bias on the part of an individual board member or on the part of the board as a whole. There is no evidence to show that Pollard had a pecuniary interest in the outcome or is enmeshed in other matters involving the school district. [166 Mich App 331, 339; 419 NW2d 783 (1988).] The Court remanded the case to the Tenure Commission for an evaluation of the merits of the disciplinary action taken by the board. Id., pp 339-340. We granted leave to appeal, 431 Mich 905 (1988), and now affirm the judgment of the Court of Appeals. ii In Loudermill, supra, the Supreme Court held that tenured public employees must be afforded some sort of pretermination hearing. The Court then considered the qualities such a hearing must possess, given the availability of comprehensive postremoval procedures, in order to satisfy the tenured employee’s right to due process. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the govern- merit’s interest in quickly removing an unsatisfactory employee. [Id., p 546. Citations omitted; emphasis supplied.] The Court thus concluded that all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute. [Id., pp 547-548. Emphasis supplied.] The statutory scheme in Ohio, like our teacher tenure act, provided for a full post-termination administrative appeal followed by judicial review. Id., pp 539-540, n 6. The pretermination hearing, in such a system, need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. [Id., pp 545-546. Citations omitted; emphasis supplied.] See also Brock v Roadway Express, Inc, 481 US 252, 261, 263; 107 S Ct 1740; 95 L Ed 2d 239 (1987) (emphasizing that the pretermination hearing need be no more than an " 'initial check against mistaken decisions’ ” where expeditious review is available) (plurality opinion, Marshall, J.). Defendant Kurtz has not demonstrated that the mere engagement of Pollard as hearing officer violated his pretermination due process rights under Loudermill. He has not shown that because of Pollard’s participation he received an inadequate explanation of the case against him, or that Pollard’s evidentiary rulings were in fact so skewed in favor of the charging party that he (Kurtz) was not provided an "opportunity to present his side of the story.” Id., p 546. It is quite clear from the record that Kurtz received more than adequate notice of the charges against him and was provided ample opportunity to respond to those charges. Furthermore, assuming that the Loudermill requirements should be expanded when factual disputes are involved in order to provide an employee with "a fair opportunity before discharge to produce contrary records or testimony, or even to confront an accuser in front of the decisionmaker . . .,” id., p 553 (Brennan, J., concurring in part and dissenting in part), it cannot be denied that Kurtz took full advantage of his opportunity to testify and to confront witnesses. See also Roadway Express, supra, p 269 (Brennan, J., concurring in part and dissenting in part). hi Notwithstanding the fact that Kurtz’ pretermination hearing comported with the standards set forth in Loudermill, the dissent argues that Kurtz nevertheless was not afforded due process of law because he was denied his "right to an impartial decisionmaker.” We agree with the conclusion of the Court of Appeals, however, that Pollard, alleged to be the "decisionmaker” biased against Kurtz, was simply not a decisionmaker in this case. A Uncontroverted testimony presented to the Tenure Commission shows that Pollard and the board members clearly understood that the judgment on the charges against Kurtz was to be made by the board alone. Kurtz has not shown that Pollard’s actions so interfered with Kurtz’ ability to present his version of the facts that the board was "not 'capable of judging [the] particular controversy fairly on the basis of its own circumstances.’ ” For example, Kurtz has not demonstrated that Pollard’s evidentiary rulings precluded the board from being able to fairly adjudicate the matter before it, nor that Pollard attempted (with or without success) to persuade the board to decide against Kurtz. (Likewise, Kurtz does not contend that the statutory requirement of the teacher tenure act that a tenured teacher may only be dismissed or demoted upon a majority vote of board members was in effect violated by Pollard’s overt or covert manipulation of votes.) Before the commission, Pollard vehemently denied having expressed an opinion to board members that the evidence adduced at the hearing substantiated the charges against Kurtz or that a particular penalty was appropriate. Testimony of individual board members also indicates the limited nature of Pollard’s participation. In short, the picture of the board’s deliberations regarding Kurtz’ case painted by those present reveals that the board members had studied the transcripts of the hearing, that a lengthy discussion was held, and that Pollard’s role was narrowly circumscribed. As noted above, the extensive record developed at the hearing indicates that Kurtz was offered, and accepted, the opportunity to set out his version of the incident from which the charges arose. In sum, there is no proof that Pollard actually participated in the board’s decision. B Mr. Kurtz and the dissent in effect urge us to treat Pollard as a constructive decisionmaker. In our opinion, Pollard’s evidentiary and advisory activities, standing alone, do not justify the adoption of this fiction. According to the dissent, [tjhere is simply no way to determine the extent to which the hearing officer’s participation in the board’s decision making may have influenced the ultimate decision of the board. The deliberations of a controlling board must be free from improper influence by either party. Once the hearing officer attended and participated in the board’s deliberations by offering legal advice, the potential for bias was neither remote nor insubstantial. Such a threat to the independence of the decision-making body by an attorney with a direct connection to the charging party does not further fair adjudicative procedures, be they mandated by statute or constitution, and certainly does little to preserve the appearance of fairness. Our system of justice will not tolerate such a risk.[ ] Imputing a probability of "improper influence” to Pollard’s presence, where the record not only fails to suggest such a state of affairs but plainly disproves it, might be justified on policy grounds if one could assume (1) that local boards are weak and susceptible to influence, and (2) that Machiavellian hearing officers have some strong incentive to place the actual outcome of the hearing above ethical and professional considerations and are therefore likely to abuse their positions to influence the proceedings for the benefit of the charging party represented by the officer’s professional affiliate. Regarding (1), such an assumption appears at odds with the dissent’s own belief that one can expect a school board to approach impartially tenure charges which are brought by its superintendent, notwithstanding the ongoing relationship between school boards and superintendents, and notwithstanding the board’s probable prior knowledge of any employment dispute which has not been resolved prior to removal proceedings. The apparent inconsistency lies in the dissent’s willingness to assume both that board members can remain appropriately detached from the entreaties of the very superintendent chosen by the board as its source of educational expertise and information about school related events, while at the same time assuming that the board in this case could not resist the influence of its hearing officer. Even assuming, however that board members are likely to be vulnerable to improper outside influence, we are not persuaded to accept assumption (2) above — that a hearing officer affiliated with the attorney representing the superintendent is likely to have sinister motives. The dissent appears to contend that Pollard had a pecuniary interest in the outcome of Kurtz’ hearing. The dissent suggests that there exists a clear "potential for the hearing officer’s advice to the board being colored by his pecuniary interest in continuing good relations between the school board and his firm.” It is true, as the dissent observes, that the attorneys had a pecuniary interest in participating in the hearing. However, this fact does not entail that the attorneys had a financial interest in a given outcome. The proposition that the hearing officer needed to aid the charging party in order to curry favor with the board itself implies that the board had already communicated to the officer an intent or disposition to rule for the charging party, thus undercutting once again the dissent’s assertion that school boards can be trusted to approach tenure matters impartially. In addition, the dissent does not offer compelling reasons why "the hearing officer might have been more likely than an independent adjudicator to advise the board that the argument or evidence presented by his partner was sufficient to meet legal or factual burdens.” We agree with the Court of Appeals that there is no evidence in the record to support the conclusion that Pollard had a pecuniary interest in the outcome of Kurtz’ hearing. In our opinion, the relationship between the attorneys, standing alone, is unlikely to cause the officer to favor the party represented by his professional associate or to imperil a teacher’s due process rights under Loudermill. Trained attorneys in the position of Mr. Pollard, retained to help the district avoid running afoul of the law, are no less likely to render dispassionate rulings than lay board members entertaining evidentiary requests from and considering actions taken by their handpicked superintendent. Moreover, such attorneys are, for the sake of their ongoing relationships with their clients, the school districts, unlikely to preclude teachers from presenting evidence. If evidentiary rulings deprive a teacher of the right to respond to the charges, an attorney might subject the board to liability for violating the teacher’s due process rights guaranteed by Loudermill; and, if evidence not admitted before the school board subsequently prompts the Tenure Commission to reverse the board’s decision, the attorney could render the district liable for back pay. The dissent accurately observes that the board could have selected another attorney from another law firm to serve as its hearing officer and legal advisor. Its failure to do so, however, does not affect the constitutionality of the procedures followed at Mr. Kurtz’ hearing. Although we disagree with the suggestion in the dissenting opinion that it is incumbent upon us to hypothesize a reason for the school board’s choice of attorneys, we observe that it is not uncommon for clients to continue business relations with attorneys who, through prior service, have gained the clients’ trust and confidence. Furthermore, we are unmoved by the fact that the same entity retained and paid both attorneys, for any two attorneys representing the superintendent and the board will be appointed and paid by the same source — the school district — whether the attorneys are professional affiliates or total strangers. In sum, the dissent has chained together several unjustified presumptions en route to the conclusion that Pollard’s participation per se worked a violation of due process. The dissent has not identified any compelling reason, nor can we envision any, why Pollard should be presumed to have been financially interested in the outcome of the hearing. It has not adequately explained why Pollard should be presumed to have been a decisionmaker when the testimony at the Tenure Commission clearly shows that he was not, and, therefore, the dissent has failed to make a case that any bias whatsoever, let alone "unconstitutional” bias should be presumed in this case. Indeed, if any "bias” is likely to exist on the part of Messrs. Pollard and Albertson, it is toward their common client — the school district. Attorneys do not have clients to serve their partners; they have partners to serve their clients. IV Less than four years ago, we considered a claim by a public school teacher who challenged the procedure employed at his pretermination hearing before the school board on due process grounds. Ferrario v Escanaba Bd of Ed, 426 Mich 353; 395 NW2d 195 (1986). In Ferrario, we determined that the plaintiff had not established a constitutional violation. Although Ferrario postdated Loudermill, we did not mention Loudermill in our discussion of the plaintiff’s due process claim. Loudermill notwithstanding, we suggested that a plaintiff alleging bias on the part of the school board might establish a due process violation at the pretermination phase of a teacher tenure proceeding by showing that "the risk of unfairness was intolerably high or that the probability of unfairness is too high to be constitutionally tolerable.” Ferrario, supra, p 380. The question just how high the probability of bias or unfairness must rise before a tenure hearing before the board will be deemed to have worked a violation of a teacher’s right to procedural due process was not answered; Ferrario did not define precisely what circumstances, if any, could support such a conclusion, because the record did not substantiate Ferrario’s claim of unconstitutional bias. Because we conclude that Pollard was not a decisionmaker in this case and that, for the reasons set forth above, the risk of unfairness in Kurtz’ pretermination hearing was not of constitutional magnitude, Ferrario is of no help to Mr. Kurtz. We therefore save for another day the question whether, and to what extent, Loudermill and Ferrario are in conflict. V For the reasons set forth above, we conclude that Kurtz was not deprived of his property interest in continued employment without due process of law. We affirm the decision of the Court of Appeals and remand this case to the State Tenure Commission for review of the merits de novo. Riley, C.J., and Levin and Griffin, JJ., concurred with Brickley, J. The dissent fails to heed the marked difference in purpose between the pre- and post-termination hearings and proceedings, erroneously, to analyze this case as if the conduct complained of by the teacher had taken place at a full, adjudicatory, post-termination proceeding. MCL 38.71 et seq.; MSA 15.1971 et seq. The resolution stated, in part: Whereas, no one on the Board is an attorney or otherwise trained in ruling on evidentiary and other issues of law that may arise at such a hearing; Now, therefore, be it resolved that the rules of evidence that shall be followed in this hearing shall be those set forth in Sections 75 through 78 of the Administrative Procedures Act for the State of Michigan. Be it further resolved that the Board hereby names Dennis R. Pollard as its counsel during this hearing and authorizes him to make rulings of law on its behalf on any motions that may be made or filed, as well as evidentiary objections; and Be it further resolved that the Board retains the right at all times to overrule his rulings if in its opinion the rulings are inappropriate or incorrect; and Be it further resolved that barring a resolution so overruling him, his rulings shall be the rulings of this Board on such matters and accorded the full weight that is appropriate to this Board’s ruling; and Be it further resolved, that, notwithstanding this delegation of authority to counsel, the Board shall retain the exclusive authority to evaluate and judge the facts that may be introduced into evidence and to exercise all other duties and responsibilities as required by the nature of these proceedings. The motion to permit voir dire examinations of the board members indicates that criminal charges were filed against Kurtz because of the incident that led the superintendent to proceed with these charges and that the incident was the subject of a number of inflammatory and prejudicial newspaper articles published in the community. Pollard’s written opinion states that "the Board of Education will allow Respondent, through his attorney, to voir dire [sic] its members. However, the scope of inquiry will be limited to permit only questions designed to uncover bias or prejudice as a result of knowledge gained outside of the present proceedings.” As an introductory matter, the board stated in its decision that Pollard was present during the board’s deliberations for the sole purpose of providing legal advice to the board when requested. The decision states: Counsel was not requested, nor did he offer, any opinion or judgment as to what inferences should be drawn from the evidence, nor what discipline would be appropriate. Consistent with its resolution appointing counsel, the Board has reserved such responsibility to itself alone. Consistent with exercising that responsibility, each Board member reviewed the evidence prior to the deliberations. The teacher tenure act provides that public school teachers may be discharged or demoted "only for reasonable and just cause, and only after such charges, notice, hearing, and determination thereof, as are hereinafter provided.” MCL 38.101; MSA 15.2001. MCL 38.104; MSA 15.2004 forbids demotion or dismissal except by a majority vote of school board members. The decision of the board may be appealed to the State Tenure Commission. MCL 38.121; MSA 15.2021. If the commission reverses the decision at the board level, the teacher is entitled to "all salary lost as a result of such suspension.” MCL 38.103; MSA 15.2003. De novo review before the Tenure Commission encompasses more than the mere review of the record created before the board. Commission regulations provide that a party may "appear at a hearing in person or by legal counsel and may call, examine, and cross-examine witnesses and introduce into the record documentary or other evidence.” 1979 AC, R 38.172. The regulations also address evidentiary rules and require the issuance of subpoenas on request of a party. 1979 AC, R 38.172, 38.173(1). We assume for the sake of argument that the same process is due before an employee is temporarily suspended, like Mr. Kurtz, or permanently discharged, like Mr. Loudermill. See Roadway Express, supra, pp 262-265 (plurality opinion, Marshall, J.). Post, p 95. Ferrario v Escanaba Bd of Ed, 426 Mich 353, 376; 395 NW2d 195 (1986), quoting Hortonville Joint School Dist No 1 v Hortonville Ed Ass’n, 426 US 482, 493; 96 S Ct 2308; 49 L Ed 2d 1 (1976). MCL 38.104(1)(b); MSA 15.2004(1)(b). See section i. Post, pp 100-101. Before the Tenure Commission, Pollard referred to criminal charges which had been brought against Kurtz prior to the tenure hearing and stated that the criminal proceedings "were very much in the press locally.” Post, p 100. Post, p 99. Post, p 100. A different case would obviously be presented were the contested professional affiliation between the attorney for the teacher and the attorney for either the board or the charging party. Such a case could present a conflict of interest violative of an attorney’s professional, ethical obligations. The dissent discounts the partiality likely to flow from the inherent relationship of trust between a school board and its superintendent while at the same time assuming that two members of the bar, with no apparent interest in the outcome of a tenure action and who are sworn to uphold the best interests of their clients, cannot be accorded the same deference. And assuming with the dissent that the attorneys’ short-term financial objectives are likely to represent the strongest influence on their behavior, it should be borne in mind that the more evidence admitted by the hearing officer, the more time both he and his partner can bill the district. Post, p 101. Post, p 101. Post, p 99.

Brickuey, J. I. INTRODUCTION A Before us today stands a defendant who alleges that the trial court abused its discretion by imposing an excessively severe sentence. Defendant Milbourn was convicted of breaking and entering a residence with the intent to maliciously destroy property worth over $100. Mr. Milbourn had lived in the residence together with his girl friend, the complainant, until the relationship soured. Shortly after the breakup, Mr. Milbourn committed several hostile acts in an eight-day period. The acts for which Mr. Milbourn’s ten- to fifteen-year sentence was imposed consisted of breaking into his former apartment when no one was home and destroying property belonging to the complainant. In order to decide whether Mr. Milbourn’s claim that his sentence embodies an abuse of the trial judge’s sentencing discretion is justified, we find it necessary to reexamine the meaning of the term “abuse of discretion” in the sentencing context. B Central to our recent and unanimous decision in People v Coles, 417 Mich 523, 535; 339 NW2d 440 (1983), was our holding that sentencing decisions, no less than the myriad other discretionary judicial actions, should be subject to review by our state’s appellate courts. We find no sound reason for interpreting the applicable constitutional and statutory provisions as carving out an exception to the right of appeal regarding sentencing matters. None of those rele vant provisions limit the particular issues subject to appellate review. We therefore conclude that the foregoing constitutional and statutory authority vest appellate courts with the jurisdiction to review all sentencing issues. We continue to believe in the correctness of the central proposition set forth above. We conclude, however, that the mechanism we established in Coles for determining whether a particular sentence represents an abuse of discretion is beset with difficulties. Thus, we are persuaded that the propriety of a given exercise of sentencing discretion should no longer turn on whether the sentence "shocks the conscience of the appellate court.” Id., p 550. Our preeminent requirement in formulating an alternative is to respect the purpose the Legislature of our state has manifested with regard to sentencing. The Legislature in establishing differing sentence ranges for different offenses across the spectrum of criminal behavior has clearly expressed its value judgments concerning the relative seriousness and severity of individual criminal offenses. This statutory sentencing scheme embodies the "principle of proportionality” according to which sentences are proportionate to the seriousness of the matter for which punishment is imposed. In our judgment, it is appropriate — if not unavoidable — to conclude that, with regard to the judicial selection of an individual sentence within the statutory minimum and maximum for a given offense, the Legislature similarly intended more serious commissions of a given crime by persons with a history of criminal behavior to receive harsher sentences than relatively less serious breaches of the same penal statute by first-time offenders. We believe that the Legislature’s pur pose is best served by requiring judicial sentencing discretion to be exercised according to the same principle of proportionality that has guided the Legislature in its allocation of punishment over the entire spectrum of criminal behavior. Accordingly, a given sentence can be said to constitute an abuse of discretion if that sentence violates the principle of proportionality, which requires sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender. This rule is superior in several ways to the "shock the conscience” test in implementing our decision in Coles permitting appellate courts to provide relief where there has been an abuse of discretion by the trial court. Most importantly, the proportionality test is better tailored to and in keeping with the sentencing scheme adopted by the Legislature. In addition, the proportionality standard is preferable because it is far less subjective than the "shock the conscience” inquiry. Finally, it is our hope and belief that the proportionality test will have the additional, incidental effect of fostering "sentencing equity,” i.e., that it will provide better protection against unjustified sentence disparity between similarly situated offenders, a phenomenon we condemned in Coles and which has been justly held up to criticism of the most vehement sort. c Section ii of this opinion sets forth the facts and procedural history of the present case. Section hi contains a discussion of Coles, followed by a critical evaluation and rejection of the "shock the conscience” test. Section iv discusses the principle of proportionality. Section v explores the abuse of discretion standard in light of the principle of proportionality and the sentencing guidelines. Section vi addresses the dissent’s criticisms of our decision, focusing in particular on the dissent’s contention that the trial judge should enjoy unfettered discretion in imposing sentencing. Section vn applies the rule to the sentence imposed on Mr. Milbourn and concludes that this sentence violates the principle of proportionality and therefore constitutes an abuse of sentencing discretion. Section vni describes the applicability of this decision to other cases. II. FACTS AND PROCEDURAL HISTORY A On October 22, 1984, two years after they had begun dating, the defendant and the complainant moved into an apartment with the lease in the name of the complainant. They lived there together, in a common household, until December 2, 1984. The defendant moved out because he and the complainant "broke up.” Each reports blameworthy conduct on the part of the other, leading to the breakdown of the relationship. The complainant testified that the relationship was clearly finished by the time of the events that gave rise to this prosecution. The defendant seems to have viewed the relationship as being in a "cooling-off” period, during which he was temporarily living apart from the complainant. The complainant testified that she had mentioned such a cooling-off period to the defendant and had suggested that they might move back together again. After the defendant’s belongings were removéd from the apartment, complainant changed the locks on December 13. She next saw the defendant on December 18, when he came to her place of employment. He handed her a greeting card and spoke briefly with her. When she said she did not wish to speak further, the defendant left, telling the complainant as he went, "You’ve had it.” She saw him again, after midnight, when she left work. The defendant approached her and said, "Don’t call the police on me.” The complainant did not understand this request. When she returned to her apartment, she found considerable damage. As described by the complainant and by a police officer, the scene included damage to clothes, a lamp, a television set, the walls, the furniture, bedding, drapes, and the phone cord. An appraiser who later saw much of the damage estimated that $330 worth of furniture had been damaged. The defendant testified at trial of the resulting charge of breaking and entering that he had been drinking that evening and that he went to the apartment to retrieve his remaining belongings. (The complainant testified, however, that Mr. Milbourn’s property had already been removed.) Mr. Milbourn said that when he discovered, to his surprise, that the locks had been changed, he cut a screen with a rock, slid open an unlocked window, and entered the apartment. Asked whether he had caused the damage, he said he did not remember doing such acts. In addition to the prosecution for breaking and entering that gives rise to this appeal, two other criminal charges were lodged against the defen dant. Each resulted from conduct arising out of the relationship between the defendant and the complainant. One was a felonious assault complaint filed after a confrontation between the defendant and a male friend of the complainant. This charge was later dismissed. The defendant also had a confrontation with the complainant on the evening of January 3, 1985. He broke a window of her car and flattened a tire. It is disputed whether he reached into the car and grabbed the complainant. For this, the defendant pled guilty of attempted malicious destruction of property over $100. The defendant made numerous attempts to contact the complainant following these events, and he testified at trial that he still loved her. There was also testimony of threats made by the defendant against the complainant, orally, in writing, and by gesture. The defendant generally denied these threats. When he committed the offense that gives rise to this appeal, the defendant had no prior criminal record. B At the conclusion of a two-day jury trial, the defendant was convicted, as charged, of breaking and entering an occupied dwelling with the intent to commit malicious destruction of property worth more than $100. Although the sentencing guidelines recommended a minimum sentence between twelve and thirty months in prison, the trial court imposed the maximum possible sentence: a minimum term of ten years. The. sentencing judge explained the departure on the sentencing information report and also explained on the record why he believed it necessary to depart from the recommendation found in the guidelines: All right, thank you, Mr. Milbourn. The Court has listened to the remarks of Counsel, as well as the remarks of Mr. Milbourn. And prior to coming to Court, I reviewed it all, all of my file notes, because I was the presiding Judge on the trial of this matter. And I need not reflect upon some of the other items in the pre-sentence report that [defense counsel] objects to. I can turn to my own recollections from the trial itself. The problem here is, we have a man that is a very sensitive young man, I believe in his own way, a very caring young man. I don’t really quarrel with the remarks that [defense counsel] has made, except for the result that he asked. And the problem that has occurred here, as I have seen it, is that this young man has literally fits of rage with which he — not he or anyone else knows what the result might [be]. And it seems to me that we have seen the manner in which he went into the dwelling, then conducted himself in the destruc tion of items, cut them up and destroyed the belongings in a violent manner and then, perhaps honestly, professed a total lack of recall of that conduct. Other testimony was presented about the violent rages of temper. Indeed, there was even testimony of violent threats. This Court has to assume that the Corrections Department and Parole Board will do its job properly. The Court feels that this young man needs protective custodial care during which that he would receive mental health counseling. And then we’ll assume that the Corrections Department will, themselves, have to make decisions as to whether or not they believe that he can return to society. That’s not the function of this Court. The function of this Court is to protect society from someone who at this point in in [sic] time constitutes, in my opinion, an extreme danger to society. It is the sentence of this Court that Kevin Michael Milbourn be sentenced to the maximum period provided by law, which is a minimum of 10 years and a maximum of 15 years in prison. He shall receive credit as provided by law for the 135 days which he has spent in custody. In arriving at this sentence, I’ve considered the following factors: One, the deterrence in the future of any further criminal behavior by you. Two, and this is a very very important item to this Court, the protection of society from you, because of your criminal behavior. And that factor has to be a paramount factor. Three, we have a sincere hope for your rehabilitation. We don’t know if it’s possible, we would hope that it is. At this juncture, we don’t know. That answer is going to be left to others. Four, the requirement that there can be no safe society without law and there can be no effective law without punishment for its violation. Now, as has been pointed out, this does not stay within the so-called Michigan guidelines, and I have filled this form out, and the form that says "Actual sentence, I’ve said, 10 to 15 years.” But as to "specific conditions” I’ve said, receive mental health counseling. And then for the reason for departure, I’ve said this, Defendant has a violent temper and goes into fits of rage. Defendant broke into former girlfriend’s apartment and cut up and destroyed her belongings. When in a rage, the Defendant is very dangerous. The Court of Appeals affirmed the defendant’s conviction and sentence. As to the propriety of the sentence in this case, the Court of Appeals said simply: Lastly, the trial judge stated his reasons for departing from the sentencing guidelines and the sentence does not shock our conscience. This Court then granted leave to appeal. III. PEOPLE v COLES In Coles, we explained in great detail the basis of our determination that a sentencing decision, no less than any other discretionary judicial act, should be subject to appellate review. We outlined the history of sentence review in Michigan, surveyed the practices in other jurisdictions, and noted the views of legal commentators. In addition, we discussed and denounced the presence of unjustified sentence disparities. Our conclusion was that Michigan should join the great majority of American jurisdictions in which sentences are subject to appellate review. In Coles, supra, p 550, we determined that sentence review should be expanded. Specifically, we said that an appellate court is to "review a trial court’s exercise of discretion in sentencing, but may afford relief to the defendant only if the appellate court finds that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of the appellate court.” Having articulated this standard, we remarked that the "scope of review may subsequently evolve, by means of case law or statutory enactment, into something more definite or even different from that which we announce today.” Id., p 549. Thousands of criminal cases have reached the appellate courts since Coles was decided on October 24, 1983. The Court of Appeals has published several opinions indicating that its conscience was shocked, and there exists also a handful of published decisions in which panels have divided on the issue whether the defendant was entitled to resentencing under Coles. On a number of occasions, judges of the Court of Appeals have requested in their opinions that this Court provide further guidance regarding the meaning of the phrase "abused its discretion to the extent that it shocks the conscience of the appellate court.” Judges of that Court have also inquired how we intend the sentencing guidelines to be employed in appellate review. People v Rutherford, 140 Mich App 272, 278-282; 364 NW2d 305 (1985) (opinion of Shepherd, J.), and People v Line, 145 Mich App 567, 573-579; 378 NW2d 781 (1985) (opinion of J. C. Ravitz, J.), lv den 425 Mich 857 (1986) . We remain persuaded that the fundamental aspect of Coles — that an appellate court must review the trial court’s exercise of the sentencing discretion entrusted to it by the Legislature — is correct. We are now prepared to recognize, however, that the standard we developed to carry out the task of appellate sentence review — the "shock the conscience” test — is deficient in important respects. We turn now to a discussion of these shortcomings. A A primary difficulty with the rule that a sentence may not be overturned on appeal unless the trial court has "abused its discretion to the extent that it shocks the conscience of the appellate court” is its subjectivity. In a discussion of remittitur in a personal injury case, we recently held: The "shock the conscience” inquiry is an inappropriate consideration since it merely involves an expression of the trial judge’s personal values and subjective beliefs and in no way relates to the actual conduct of the trial. As we have learned in reviewing sentencing issues under People v Coles, 417 Mich 523; 339 NW2d 440 (1983), what shocks the conscience of one judge does not necessarily shock the conscience of another. . . . Because we view [the "shock the conscience”] inquiry to be one of complete subjectivity, we hold that it is not to be undertaken in any analysis relating to remitti tur. [Palenkas v Beaumont Hosp, 432 Mich 527, 532-533; 443 NW2d 354 (1989).] While a measure of subjectivity in judicial decisions is unavoidable due to the differing personal backgrounds, experiences, and viewpoints of different members of the bench, a standard which is itself "one of complete subjectivity” has no more place on the appellate bench than in the trial court. A rule which contains no directives to the judges who must apply it — other than to encourage the rendering of decisions in accordance with personal value judgments — is a "rule” only in the weakest sense. B A related and important problem inherent in the "shock the conscience” standard concerns disparity in sentencing. We observed in Coles, supra, p 546, that disparity in sentences which results from considerations such as the race or economic status of a defendant or the personal bias and attitude of an individual sentencing judge is unjustified and impermissible. Unjustified disparities promote disrespect for the criminal justice system and resentment among prisoners, thus impairing their morale and motivation for rehabilitation. We conclude that such sentences should be subject to appellate review and relief when warranted. [Emphasis added.] The public’s faith in the just and fair administration of justice is also shaken by the imposition of unjustifiable and unexplained sentence disparity. Just as the routine award of high grades demeans academic value, the routine imposition of maximum sentences would send a garbled message of society’s views on the relative blameworthiness of various commissions of a given crime to the public as well as to the ultimate consumer of judicial sentencing behavior — the convicted offender. Professor and Commissioner of the United States Sentencing Commission llene H. Nagel, in an informative article on the genesis and the current state of federal sentencing policy under the Sentencing Reform Act, observed: The purpose of the Act was to attack the tripartite problems of disparity, dishonesty, and for some offenses, excessive leniency, all seemingly made worse by a system of near unfettered judicial discretion. For decades, empirical studies repeatedly showed that similarly situated offenders were sentenced, and did actually serve, widely disparate sentences. Furthermore, the disparity found to characterize federal sentencing was thought to sometimes mask, and be correlated with, discrimination on the basis of a defendant’s race, sex, or social class. For a system claiming equal justice for all, disparity was an inexplicable yet constant source of embarrassment. [Nagel, Structuring sentencing discretion: The new federal sentencing guidelines, 80 J Crim L & Criminology 883-884 (1990).] Indeed, concern over the effect of unwarranted sentence disparities on the part of the public is not a novel one, as is made clear by this vivid passage penned by an eminent commentator almost two centuries ago: Not a great many years ago, upon the Norfolk circuit, a larceny was committed by two men in a poultry yard, but only one of them was apprehended; the other having escaped into a distant part of the country, had eluded all pursuit. At the next assizes the apprehended thief was tried and convicted; but Lord Loughborough, before whom he was tried, thinking the offence a very slight one, sentenced him only to a few months imprisonment. The news of this sentence having reached the accomplice in his retreat, he immediately returned, and surrendered himself to take his trial at the next assizes. The next assizes came; but, unfortunately for the prisoner, it was a different judge who presided; and still more unfortunately, Mr. Justice Gould, who happened to be the judge, though of a very mild and indulgent disposition, had observed, or thought he had observed, that men who set out with stealing fowls, generally end by committing the most atrocious crimes; and building a sort of system upon this observation, had made it a rule to punish this offence with very great severity, and he accordingly, to the great astonishment of this unhappy man, sentenced him to be transported. While one was taking his departure for Botany Bay, the term of the other’s imprisonment had expired; and what must have been the notions which that little public, who witnessed and compared these two examples, formed of our system of criminal jurisprudence? [Romilly, Observations on the Criminal Law of England (2d ed) 18-19 (1811).] It is evident that the "shock the conscience” test cannot effectively combat unjustified disparity. An "abuse of discretion” standard by itself can be construed so narrowly as to avoid dealing with disparity altogether. If the class of cases in which the trial court can be said to have abused its discretion is pruned to include only those cases in which the appellate conscience is shocked, then relief simply will not be available in the great majority of cases involving unjustified disparity, since the presence of such disparity does not depend on circumstances which "shock the consciences” of a majority of a given panel of the Court of Appeals. c A number of appellate opinions have been published in our state since Coles was decided expressing frustration with the current state of sentence review, perhaps the most forceful of which was issued by Court of Appeals Judge Shepherd, concurring in Rutherford, supra, pp 279-282: ■ My concern is that the present framework of sentence review provides no surer means of curing such abuses than existed prior to Coles, supra. Reliance upon the "conscience of the appellate court” will not result in justice evenly applied across the state, for we, like members of society generally, vary in what our consciences dictate. [I]f there is a lack of any direct connection between the guidelines and Coles review, we are left with insufficient means to evaluate the relative excessiveness of the sentences before us. If we cannot rely upon the guidelines to help form a more educated appellate "conscience,” we are left again in a realm of subjectivity, "with confidence in the criminal justice system correspondingly diminished.” Coles, p 542. . . . Coles and the guidelines were designed to minimize the impact of a judge’s personal conscience and to create a more rational and uniform basis for sentencing. We should not labor under the illusion that this has been accomplished. In fact, it will never be accomplished until the Court of Appeals has been given standards to apply which remove sentence review from the same nebulous and arbitrary criteria which still exist in the trial courts. It is one thing to say that trial and appellate courts must be given a degree of flexibility so that each case may be adapted to its circumstances; it is quite another to base that flexibility upon a foundation no more solid than the personal consciences of individual judges. I respectfully invite the Supreme Court to grant leave in the present case and help us to resolve these fundamental difficulties in sentence review.[ ] Having concluded that the "shock the conscience” standard is inadequate, we must articulate a rule which improves upon that standard before we cast it aside. A new rule must be less subjective than the old rule, and it should offer more effective protection against unjustified sentence disparity. More importantly, we believe that because the responsibility for defining our criminal laws is rooted firmly in legislative territory, the rule must comport with the intent of the Legislature to the extent that a legislative intent is discernible regarding individual sentencing decisions. We next consider the legislative sentencing scheme which forms the foundation of the standard we adopt today. IV. PROPORTIONALITY When the legislative scheme for criminal sentencing is viewed across the spectrum of crimes from misdemeanor traffic violations to cold-blooded murders, two aspects are immediately clear. First, the Legislature has endeavored to provide the most severe punishments for those who commit the most serious crimes. The crime of murder, for example, is punishable by a longer term than is the lesser included crime of assault. Second, offenders with prior criminal records are likewise subject to harsher punishment than those with no prior convictions, as reflected in the general and specific habitual offender provisions of the penal statutes. These two elements combine to form what might be called the "principle of proportionality.” As stated over three quarters of a century ago by the United States Supreme Court, "[I]t is a precept of justice that punishment for the crime should be graduated and proportioned to the offense.” Weems v United States, 217 US 349, 367; 30 S Ct 544; 54 L Ed 793 (1910). In more recent times, the Court has found defects of constitutional magnitude in sentences which are disproportionate to the offense. For example, in Coker v Georgia, 433 US 584, 592, n 4; 97 S Ct 2861; 53 L Ed 2d 982 (1977), the Court stated: Because the death sentence is a disproportionate punishment for rape, it is cruel and unusual punishment within the meaning of the Eighth Amendment even though it may measurably serve the legitimate ends of punishment and therefore is not invalid for its failure to do so. Turning from the legislative felony sentencing scheme in general to the prescribed punishment for individual felonies, we note that the Legislature has, with only a few exceptions, provided a range of punishment for each felony. Because the Legislature in addressing criminal punishment in general has subscribed to the principle of proportionality and because the commission of a given crime by a given offender may also vary considerably in seriousness, we believe it reasonable to conclude that the Legislature, in setting a range of allowable punishments for a single felony, intended persons whose conduct is more harmful and who have more serious prior criminal records to receive greater punishment than those whose criminal behavior and prior record are less threatening to society. The Legislature then left to the judiciary, with regard to most crimes, the task of determining the sentence to be imposed upon each offender within given bounds. We believe that judicial sentencing discretion should be exercised, within the legislatively prescribed range, according to the same principle of proportionality that guides the Legislature in its allocation of punishment over the full spectrum of criminal behavior. Thus, a judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender. To reiterate, we believe that the purpose of the Legislature in creating sentence ranges and, thereby, providing for discretion in sentencing was to allow the principle of proportionality to be put into practice. We are thus persuaded that the purpose of discretionary sentencing was not to accommodate subjective, philosophical differences among judges. In the course of reviewing thousands of sentences since our decision in Coles, we have observed that different sentencing judges often subscribe to markedly different sentencing philosophies. For example, some judges may feel that any commission of a certain felony, even though the facts surrounding a particular criminal episode clearly do not justify worst-case treatment, should be answered with the maximum possible sentence. Much of our discussion in § n regarding subjectivity and unjustified disparity is equally applicable in this context. With regard to the principle of proportionality, it is our judgment that the imposition of the maximum possible sentence in the face of compelling mitigating circumstances would run against this principle and the legislative scheme. Such a sentence would represent an abdication — and therefore an abuse — of discretion. The trial court appropriately exercises the discretion left to it by the Legislature not by applying its own philosophy of sentencing, but by determining where, on the continuum from the least to the most serious situations, an individual case falls and by sentencing the offender in accordance with this determination. V. PROPORTIONALITY AND APPELLATE REVIEW OF SENTENCES A Where a given case does not present a combination of circumstances placing the offender in either the most serious or least threatening class with respect to the particular crime, then the trial court is not justified in imposing the maximum or minimum penalty, respectively. Accordingly, if the maximum or minimum penalty is unjustifiably imposed in this regard, contrary to the legislative scheme, the reviewing court must vacate the sentence and remand the case to the trial court for resentencing. The discretion conferred by the Legislature does not extend to exercises thereof which violate legislative intent; such exercises are, therefore, an abuse of discretion. B To be sure, the determination whether a sentence is so disproportionate to the seriousness of the circumstances of the crime as to require resentencing becomes considerably more difficult where the sentence does not represent the minimum or maximum allowable for a given crime. Moreover, this difficulty may be compounded where the Legislature has set no minimum or has prescribed a maximum of a lengthy term of years or life. Fortunately, since the publication of Coles in 1983, an invaluable tool for gauging the seriousness of a particular offense by a particular offender, as well as the disparity in sentencing between courtrooms, has been developed. In 1984 and 1985, we issued administrative orders requiring judges of this state to use the first edition of the Michigan Sentencing Guidelines. Administrative Order No. 1984-1, 418 Mich lxxx (1984); Administrative Order No. 1985-2, 420 Mich lxii (1985). As explained in McComb, An overview of the second edition of the Michigan Sentencing Guidelines, 67 Mich B J 863, 864 (1988), Since that time, the guidelines have remained in use statewide. The guidelines staff has assembled a data base of about 70,000 cases, and the Supreme Court and the Court of Appeals have begun to develop a body of case law on issues related to the guidelines (e.g., People v Walker, 428 Mich 261; 407 NW2d 367 [1987], People v Broden, 428 Mich 343; 408 NW2d 789 [1987], and People v Fleming, 428 Mich 408; 410 NW2d 266 [1987]). Since the guidelines took effect, the overall compliance rate has been in the vicinity of 80%. In addition, Michigan has seen the elimination of statistically significant racial disparity in sentencing in all of the nine crime groups. The sgac has continued throughout the years to work on improving the guidelines. It has had the benefit of detailed statistical analyses of the committee’s substantial data base. The judges’ departure reasons have also been considered. Informal communication from bench and bar have also brought to the committee’s attention areas in which improvements are needed. It became apparent that the point values for the prvs and ovs, the 3x6 grid structure, and the recommended sentences were not consistent with current sentencing practice or with each other (or both). In any case, there were many instances in which the offenders in a given grid cell were, in fact, not similar in terms of the factors most salient to the sentence. This, in turn, meant that no set of recommended ranges was likely to ensure compliance. To rectify these problems, the sgac began reexamining the extent to which the sentencing guidelines scoring system comported with actual judicial sentencing behavior. The conclusion reached by the sgac and State Court Administrative Office staff was that the guidelines needed to better capture the reasoning process of the sentencing judges. Sparing the intermediate steps, the result of several years of work by the sgac can be summarized as follows: the scoring system, grid configuration, and recommended sentence ranges have been revised so that they are both similar to the main currents of judicial decision-making and consistent with one another. As such, the second edition distinguishes clearly between factors of greater importance and factors that are less significant, thereby providing a ñrm foundation for the location of classes of offenders who are indeed similarly situated. The guidelines represent the actual sentencing practices of the judiciary, and we believe that the second edition of the sentencing guidelines is the best "barometer” of where on the continuum from the least to the most threatening circumstances a given case falls. Nevertheless, because our sentencing guidelines do not have a legislative mandate, we are not prepared to require adherence to the guidelines. We note that departures are appropriate where the guidelines do not adequately account for important factors legitimately considered at sentencing. For example, as the dissent points out, a sentencing judge could legitimately depart from the guidelines when confronted by the unlikely prospect of a one hundred-time repeat offender, since the guidelines do not take such extensive criminal records into account. In addition, we emphasize that the guidelines should continue to reflect actual sentencing practice. To require strict adherence to the guidelines would effectively prevent their evolution, and, for this reason, trial judges may continue to depart from the guidelines when, in their judgment, the recommended range under the guidelines is disproportionate, in either direction, to the seriousness of the crime. However, because of the increased sophistication of the second edition of the guidelines and because they represent the sentencing practices of the great majority of our state’s sentencing judges, they become a useful tool in carrying out the legislative scheme of properly grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments. We believe that the gradation of recommended sentencing ranges within the guidelines indicates not only that the full statutory range of possible sentences is being used, but also that the recommended ranges increase as the factors that are adequately represented in the guidelines become more serious. For this reason, we believe that it is safe to assume that in the eyes of the vast majority of trial judges who have chosen to impose sentences within the guidelines ranges, the guidelines reflect the relative seriousness of different combinations of offense and offender characteristics. It is worthwhile to note again in this context the concerns of Judge Shepherd, concurring in People v Rutherford, supra, pp 280-281. If the guidelines did set binding limits on the trial court’s discretion, I would be constrained to remand when the judge states reasons for departing from the guidelines which are already considered therein. The problem we face in these cases is that the guidelines include factors such as the severity of the offense, the past record of the defendant, and the sentences historically imposed throughout the state. If the trial judge justifies a departure from the guidelines by stating that he does so because of the nature of the offense and the record of the offender, the trial court has considered these factors twice. If we say that the trial judge may, in an individual case, place greater emphasis on any given factor by simply announcing on the record his intention to do so, the guidelines become nothing more than a litany of magic words used to mask the imposition of subjective, arbitrary and disparate sentences — the very problem which Coles and the guidelines were designed to eliminate. If the sentencing judge is not held to have abused his discretion by emphasizing a factor already included in the guidelines as a basis for departing from them, and if the record is devoid of evidence showing whether a sentence beyond the guidelines is disparate, we are furnished with no basis other than our own subjective reactions upon which to base a decision. The risk of imposing an arbitrary and disparate sentence is thus shifted from the trial courts to the Court of Appeals. These observations are well taken. Even though sentencing within the guidelines is recommended rather than compulsory, departures from the guidelines, unsupported by reasons not adequately reflected in the guidelines variables, should nevertheless alert the appellate court to the possibility of a misclassification of the seriousness of a given crime by a given offender and a misuse of the legislative sentencing scheme. We believe that the discretion of trial courts adhering to the guidelines is not unduly restricted, since the recommended sentence range in a given cell of the guidelines is generally quite broad. We thus reject again the dissent’s suggestion that it is at all possible to "replace discretionary sentences with the more nearly determinate sentences set forth in the grids” (post, p 687), for the grids, far from setting forth specific sentences, instead set forth a range of possible minimum sentences from which a judge intending to stay within the guidelines can choose. Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves circumstances that are not adequately embodied within the variables used to score the guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should alert the appellate court to the possibility that the trial court has violated the principle of proportionality and thus abused its sentencing discretion. Even where some departure appears to be appropriate, the extent of the departure (rather than the fact of the departure itself) may embody a violation of the principle of proportionality. See People v McKinley, 168 Mich App 496, 512; 425 NW2d 460 (1988). ("We do not dispute that a prison sentence — even a lengthy one — is in order. We conclude, however, that a fifteen-year minimum sentence for the events that occurred here is disproportionate to the specific acts committed and the danger involved. Too frequently reasons are given for a sentence that apply equally to a lesser or greater sentence unless an explanation is offered on the record for the speciñc sentence given. Such was the case here.”) (Emphasis added.) In some cases, there may be important sentencing factors that are not included in the sentencing guidelines. Perhaps the clearest example of such a factor is the prior relationship, if any, between the victim and the offender. The Sentencing Guidelines Advisory Committee has sought to identify variables that are uniformly mitigating or aggravating. A prior relationship between a victim and an offender can be a very mitigating circumstance or a very aggravating circumstance, depending upon the history of interaction between the parties. Other important aspects of the case might not be found among the guidelines’ variables, if these aspects do not occur frequently in criminal cases or cannot be neatly scored on a numerical scale. Conceivably, even a sentence within the sentencing guidelines could be an abuse of discretion in unusual circumstances. See People v Broden, 428 Mich 343, 354, n 18; 408 NW2d 789 (1987). As noted above, in the interest of allowing the guidelines to continue to evolve, trial judges shall remain entitled to depart from the guidelines if the recommended ranges are considered an inadequate reflection of the proportional seriousness of the matter at hand. Just as the guidelines may not be a perfect embodiment of the principle of proportionality, so too may a sentence within the guidelines be disproportionately severe or lenient. Thus, contrary to the implication of the dissent’s repeated observation that departures may be risked only "on pain of reversal” (post, pp 670, 692), the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended range. VI. THE POSITION OF THE DISSENTING OPINION A The gravamen of the dissent is that the enormous sentencing discretion which the Legislature left to the judiciary is, in sharp contrast to every other discretionary sphere of judicial activity, to be exercised at will in the trial court to the extent that appellate courts may do nothing more than assure themselves that the trial court has not exceeded the statutory maximum. Seven years ago in Coles, however, we unanimously rejected the very position now advocated in the dissenting opinion. Coles, supra, p 535. To adopt the position of the dissenting opinion— that the scope of sentence review should be so narrowly circumscribed that any sentence up to the statutory maximum must be upheld on appeal —would be to turn back the clock not just seven years to the pre-Coles era, but a full eighteen years to undercut the validity of our landmark decision in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), in which we held that the minimum term of incarceration in sentences imposed under the indeterminate sentence act could not be greater than two-thirds of the maximum term. In Coles, supra, p 547, this Court canvassed the aba standards and the practices in other states, concluding: [O]ur research indicates that there are at most only ten states in this country which do not allow any form of appellate review of sentences. The remaining states, either by statute, court rule, or case law, allow some form of appellate review of sentences, although the scope of review varies widely from state to state. And since Coles, the national trend has pushed forward. Our sister states have continued to adopt a variety of measures to diminish the recognized evils of disparate sentencing. Professor Nagel, in her comprehensive article on sentencing in the federal system, relates the following: With utmost candor, Judge Frankel pierced the veiled myth of prisons as rehabilitative, and unfettered judicial discretion as right minded, when he concluded from his experience that unlike medical diagnoses, with criminals it is impossible to determine when, if ever, the "patient” will be "cured.” Many echoed the systematic failure of coercive rehabilitation. . . . If there were any who clung to indeterminate sentencing for reasons other than its alleged tie to rehabilitation, now shown to be devoid of any empirical support, the outpouring of research on the other theme — disparity—paved the way for the emergent commitment to restructuring discretion. Justice Potter Stewart, writing as early as 1958, noted: "It is an anomaly that a judicial system which has developed so scrupulous a concern for the protection of a criminal defendant throughout every other stage of the proceedings against him should have so neglected this most important dimension of fundamental justice.” This dimension was "equal justice under the law.” [Shepard v United States, 257 F2d 293, 294 (CA 6, 1958).] Disparity studies multiplied; consistently, the results revealed gross variations that could neither be explained by rational categorization of criminals, nor justified by referring to treatment goals. . . . On reflection, it appears that Congress chose to heed the calls of Judge Marvin Frankel and the cadre of other distinguished legal scholars joining him to combat head on the unacceptable consequences of unfettered discretion. [Nagel, pp 896-899.][ ] B We do not share the dissent’s belief that the effect of today’s decision will be to drastically curtail the discretion and flexibility of our sentencing judges. We thus reject the dissent’s suggestions that the result of our opinion is to "circumscribe a trial court’s statutory authority to tailor minimum sentences to the particular offender and the particular offense” (post, p 670); that a "trial judge may no longer apply personal experience, education, intuition, or judgment to draw inferences from evidence to determine the appropriate sentence for a given offender” (post, pp 671-672); that to "hold a given penalty unlawful ... is simply to say there is no discretion” (post, p 687); and that our decision will irrationally "compel a trial judge who hopes to impose a just sentence to treat the individual convicted of one hundred prior felonies the same as the defendant who committed two such felonies” (post, p 685). The unspoken assumption underlying these claims appears to be that appellate review of discretionary decisions is equivalent to the wholesale destruction of discretion itself. Discretion, however, is a matter of degree, not an all or nothing proposition. The dissent’s assumption and the conclusions that follow from it are untenable. They are refuted by the fact that trial judges throughout this state are ably exercising their full discretionary responsibilities over a wide range of matters that come before them, knowing that they are subject to review on an abuse of discretion basis according to law, developed in cases such as this, which sets parameters and standards for the exercise of that discretion. It is unquestionably the trial court, and the trial court only, which is empowered to hand down a sentence. It is just as unquestionable that the trial court alone is empowered to conduct a trial, fashion equitable remedies, grant divorces, award alimony and child support, terminate parental rights, and fulfill all of the innumerable other judicial responsibilities that are vested in the trial bench. And, of course, it is the responsibility of the appellate courts, and the appellate courts only, to carry out their function, which is to review the performance of judicial functions in the trial court. If and when it is determined that a trial court has pursued the wrong legal standard or abused its judicial discretion according to standards articulated by the appellate courts, it falls to the trial court, on remand, to exercise the discretion according to the appropriate standards. Thus, while it is true that the trial courts will continue to impose sentences “on pain of reversal” (post, pp 670, 692), the same can be said of every discretionary trial court decision. We likewise disagree with the accusations that we seek to impose our philosophy on the trial judges (post, pp 670-671), and that we are guilty of assuming our "sentencing philosophy is somehow superior to the trial court’s judgment” (post, p 684). We certainly do not for a moment suggest that our philosophy is superior to that of anyone. We do work on the assumption that it is the appellate courts, in reviewing thousands of cases, that must and do get a sense of that disparity and that ultimately must interpret the legislative will. And it is the guidelines, which reflect the sentencing practices of the trial bench, that can help the appellate courts assess disparity. We do not suggest that in the day-in-day-out review of sentencing issues appellate courts should simply substitute their judgment for that of the trial court. Indeed, such de novo review of sentences would be unprecedented in the realm of criminal appeals and at odds with any reasonable construction of the term "abuse of discretion.” c The dissenting opinion contains no authority for the policy view that, unlike all other areas of the law where judges are given discretion, sentencing discretion ought not to be reviewable. The dissent not only disregards Coles, but, in arguing that its position carries the blessing of the Legislature, fails to cite any statutory authority for the proposition that the result of that case — that sentencing decisions are subject to appellate review — has been overruled by statutory enactment. Indeed, the only provision which the dissent cites addresses not appellate review, but merely the authority to impose sentences, post, p 680, n 19, a task which, like innumerable other reviewable judicial duties, belongs in the province of the trial court. This unremarkable statutory provision does not support the conclusion that appellate review of sentencing decisions is foreclosed. Despite the accusation of the dissent, while an increase or decrease in the prison population may result from a decision of this Court, it is not, nor should it be, a legitimate goal or purpose of an appellate court to consider such effects. It is our duty and purpose to find meaning in the discretionary range provided in the criminal code and to see to it that it is carried out. VII. APPLICATION OF THE STANDARD OF SENTENCE REVIEW We find that the imposition of the maximum possible sentence on Mr. Milbourn for the acts he committed clearly violated the principle of proportionality and therefore constituted an abuse of discretion. We have reviewed with care the entire record of this matter and, with all respect for the trial judge’s difficult determination, we are persuaded that the breaking and entering committed by the defendant does not rise to a level of seriousness that warrants the most severe penalty the law can inflict for that crime. We therefore conclude that the trial court abused its sentencing discretion, violating the intent of the Legislature to reserve the most severe sanctions for the most serious combinations of the offense and the background of the offender, and that resentencing is therefore required. The facts of the instant case, to be sure, do not constitute a typical burglary; whereas a more typical crime of that sort involves entry into the home of a stranger for the purpose of committing a larceny or an assault, Mr. Milbourn broke into an apartment in which he himself had resided for the apparent purpose of making an emotional and destructive statement about the breakup of his relationship with the complainant. The acts accompanying the acts for which Mr. Milbourn was sentenced to the maximum term of ten to fifteen years were visited against property rather than persons. The prior relationship of the defendant and the victim does not appear to be an aggravating factor in this case. Mr. Milbourn did not have a long history of hostile acts against the complainant, and he had not at the time of this offense engaged in other malicious behavior toward the victim. The burglary statute under which Mr. Milbourn was convicted proscribes a broad range of criminal conduct: it imposes liability for breaking and entering "with intent to commit any felony or larceny . . . ,” This provision thus encompasses not only entries with intent to maliciously destroy personal belongings, but also those accompanied by an intent to murder, assault, rape, steal or commit arson. In our discussion of proportionality, we observed that the Legislature has determined to visit the stiffest punishment against persons who have demonstrated an unwillingness to obey the law after prior encounters with the criminal justice system. Mr. Milbourn was a young man and, at the time the instant offense was committed, he had no criminal record. The facts of this case did not, in short, justify imposition of such a severe sentence. The trial judge, by sentencing Mr. Milbourn to the maximum possible term, has left no room for the principle of proportionality to operate on an offender convicted of a breaking and entering who has a previous record for this kind of offense or whose criminal behavior is more aggravated than in Mr. Milbourn’s case. The dissent has more graphically set forth the series of events consisting of assaultive behavior and destruction of property between December 18, 1984, and January 3, 1985, that were directed at the defendant’s former live-in companion. While the defendant was clearly out of control during this period in which he was arrested three times and out of which he was prosecuted twice, it is still a fact that it was essentially one episode of irrational and destructive behavior directed at the same victim. We would not suggest that these acts in their totality do not merit imprisonment or a departure from the guidelines. We do, however, conclude that they do not rise to the maximum penalty that the Legislature has prescribed for the crime of which he was convicted. VIII. APPLICABILITY OF THIS DECISION As in Coles, supra, p 551, it is our judgment that our present decision to modify the nature of appel late sentence review applies to: (1) currently pending appeals in which the issue of sentence length has been raised and preserved, (2) currently pending first appeals in which the appellant’s initial brief has not yet been filed, and (3) appeals filed after the date of this decision. IX. RELIEF For the reasons set forth above, we vacate Mr. Milbourn’s sentence and remand the case to the trial court for resentencing. Levin, Cavanagh, Archer, and Griffin, JJ., concurred with Brickley, JJ. MCL 750.110; MSA 28.305. For purposes of this opinion, sentence "disparity” and "equity” refer to the relationship of sentences of similarly situated offenders, whereas "proportionate” and "disproportionate” refer to the relationship of an individual sentence to the seriousness of the matter for which it was imposed. See Nagel, Structuring sentencing discretion: The new federal sentencing guidelines, 80 J Crim L & Criminology 883 (1990), and sources cited therein. Mr. Milbourn was sentenced by Judge Kallman in the Ingham Circuit Court to one year in the county jaü as a result of this plea. We find nothing in the record to support the suggestion in the dissenting opinion that the defendant had a "homicidal bent against the complainant” (post, p 686), or that it was "sheer fortuity” that the victim was not killed by the defendant (id.). At the time he was sentenced for this offense, he had pled guilty of attempted malicious destruction of property, and was awaiting sentencing. MCL 750.110; MSA 28.305. This case fell into the A-m cell of the 180-month burglary grid. Under the second edition of the guidelines, Milboum would apparently fall in cell b-iii of the 180-month burglary grid. The recommended range in that cell is zero to eighteen months. [The defendant] has a violent temper and goes into fits of rage. [The defendant] broke into [his] former girlfriend’s apartment and cut up and destroyed her belongings. When in a rage, [the defendant] is very dangerous. People v Milbourn, unpublished opinion per curiam of the Court of Appeals, decided February 24, 1987 (Docket No. 85990). Milbourn had earlier moved the Court of Appeals for a remand to the trial court, for the purpose of conducting an evidentiary hearing as to the sentencing practices of the judge who imposed the sentence in this case. This motion was denied by the Court of Appeals. We granted leave to appeal "[ljimited to the issue whether the 10-to 15-year sentence here, which was four times the high range of the Sentencing Guidelines, was an abuse of discretion or shocking to the conscience under People v Coles, 417 Mich 523 (1983).” People v Milbourn, 429 Mich 858 (1987). Further, we weighed heavily the conclusions of this Court’s Committee on Sentence Review, chaired by Judge Daniel F. Walsh of the Court of Appeals. This conclusion accords with Standard 20-1.1 of the 4 American Bar Association’s Standards for Criminal Justice (2d ed), except that Standard 20-l.l(d) states that "[t]he prosecution should not be permitted to appeal a sentence on the grounds that it is too lenient.” This Court has placed no such limitation upon the prosecutor’s right to appeal a sentence. There are roughly a dozen cases in each category. See, e.g., Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). In that case, the appellant sought an increase in child support from $35 per week to $50 per week. The judge granted an increase to $42.50 per week, and the appellant appealed to this Court, seeking the Ml amount requested. In denying relief, the Spalding Court articulated an extremely deferential definition of the term "abuse of discretion”: The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. So tested, we perceive no error in the proceedings below nor in the determination made. [Id., pp 384-385.] See also Line, supra (concurring opinion of Ravitz, J.); People v Landis, 139 Mich App 120; 361 NW2d 748 (1984) (dissenting opinion of Kelly, J.). Addressing questions not before us today, Justice Brennan explained that the Legislature "leaves the setting of the minimum sentence to the court for the very purpose of creating latitude so as to relieve from the maximum penalty those defendants whose conduct contained some circumstances of mitigation, or at least no circumstances of aggravation.” People v Sinclair, 387 Mich 91, 151; 194 NW2d 878 (1972). Throughout the dissenting opinion, the terms "indeterminate” sentencing and "discretionary” sentencing are used interchangeably. The dissent is clearly in error in suggesting that today’s opinion will have any effect on indeterminate sentencing. An indeterminate sentence is one whose precise duration is unknown at the time of sentencing. See, e.g., People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972) ("[A] sentence with too short an interval between minimum and maximum is not indeterminate”). The exact amount of time to be served within the range set by the trial judge is determined according to postsentencing factors by persons other than the judge. The Legislature has determined that indeterminate sentencing shall be the rule in Michigan, and this Court carried out that intention in Tanner by holding, in harmony with aba standards, id., p 689, that the minimum term of an indeterminate sentence must be no more than two-thirds of the legislative maximum for that crime. Therefore, sentences meted out before and after today’s decision have been and will remain indeterminate in accordance with Tanner. Discretionary sentencing, of course, is a different matter. Under that concept, unless otherwise specified, the sentencing judge has discretion in selecting a minimum sentence between the legislative minimum and, in accordance with Tanner, two-thirds of the maximum time prescribed by the Legislature. (Tanner, by enforcing the legislative scheme of indeterminate sentencing, incidentally limited the sentencing discretion of the trial judges.) In Michigan, most sentences are imposed under the discretionary/indeterminate scheme, according to which a sentencing judge can select a range of time a person must serve but not the precise length of the sentence. There are also nondiscretionary/indeterminate sentences, in which the judge has no discretion to depart from a specific predetermined range (some drug crimes have employed this scheme); discretionary/determinate sentences, in which the judge can pick the exact period of time that the convicted person must serve (misdemeanors fall into this category); and nondiscretionary/determinate sentences, in which the statute provides for the specific time to be served, as is prescribed for first-degree murder (mandatory life) and possession of a firearm during the commission of a felony (two years). We can only assume and will presume that, in the sense of the above definitions and classifications, the dissent is leveling its criticism not at the determinate/indeterminate facet of our sentencing scheme, but at the interference with its preference for absolute discretion. Perhaps the most misleading misuses of terms by the dissent are the inaccurate suggestions that "indeterminate sentencing is a legislative delegation of constitutional authority to trial judges to tailor their sentences to the particular offender and the particular offense” (post, pp 680-681, emphasis added); and that it is possible to "replace discretionary sentences with the more nearly determinate sentences set forth in the grids” (post, p 687). Nothing within the present opinion is intended to or can possibly be expected to affect indeterminate sentencing in Michigan. See Coles, supra, p 546 ("[D]isparity in sentences which results from . . . the personal bias and attitude of an individual sentencing judge is unjustified and impermissible”). Generally, the maximum possible sentence a trial judge may impose under our indeterminate sentencing scheme is one whose minimum term is two-thirds of the statutory maximum. See the discussion of Tanner, n 18 supra. See Levin, Toward a more enlightened sentencing procedure, 45 Neb L R 499 (1966) ("[W]e are attempting to eliminate the disparities in the sentences meted out by different judges .... We strive not to achieve uniform sentences but to acquire a uniform philosophy which includes the ingredients that lead to a sentence — one in keeping with enlightened social and legal policy”). See n 20. See n 20. In some other states, a sentencing judge may not depart from the guidelines unless the judge has identified "clear and convincing” or "substantial and compelling” reasons. Florida Rules of Criminal Procedure, Rule 3.701(d)(ll); Minnesota Sentencing Guidelines and Commentary, Statement of Purpose and Principles, ¶ 4; Wash Rev Code Ann, § 9.94A.120(2). There are also a number of states that permit a judge to depart from a presumptive sentence if there are aggravating and mitigating circumstances. Higher standards are imposed by some of these stat utes. Alas Stat, §12.55.155(0; 5 Ariz Rev Stat Ann, § 13-702(E); NJ Stat Ann, § 2C:44-1f.(l), (2); 7A Tenn Code Ann, §§ 40.35.105-40.35.108. See also Cal Penal Code, § 1170(b). There is a more complex departure policy in the federal guidelines. [T]he Sentencing Reform Act, despite its vast efforts to structure and constrain judicial discretion, nonetheless provided for judges to depart when they found "that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and that should result in a sentence different from that described.” [Nagel, supra, p 938, quoting 18 USC 3553(b).] Such trial court decisions remain, of course, subject to review in accordance with this opinion. See n 18. The Court of Appeals explained in People v Morin, 144 Mich App 142, 144; 372 NW2d 691 (1985), that cases have held that a judge may depart from the guidelines on the basis of a factor that is already included within the sentencing guidelines. We decline to overrule those cases, since there will be occasions when the conduct or the criminal record to be scored under the sentencing guidelines is extraordinary in its degree, and thus beyond the anticipated range of behavior treated in the guidelines. Nevertheless, we believe that the judge’s right to depart in this fashion should be exercised with caution. In selecting variables for inclusion, the Sentencing Guidelines Advisory Committee has sought to identify variables that would be (a) nonprejudicial, (b) uniformly mitigating or aggravating, (c) frequently occurring, (d) related to the goals of sentencing, and (e) "objective” in the sense that one could write instructions that would lead most people to be able to reach the same categorical decisions. McComb, An overview of the second edition of the Michigan Sentencing Guidelines, supra. In light of these ground rules, the committee understood and intended that the guidelines would not contain every consideration that can properly be weighed in imposing sentence. The guidelines do not address all crimes or even all felonies. Sentences for crimes not included in the guidelines, of course, remain reviewable under the principle of proportionality. At present, it appears that approximately five states do not allow defendants to appeal their sentences. See § ni(B) for additional discussion of some of the unacceptable consequences of unfettered sentencing discretion. The dissent levels against this opinion the charges that our decision is "a resounding vote of 'no confidence’ in the ability of trial judges to operate in a fundamentally fair manner” and that it is "an indictment of the sentencing judge.” (Post, p 701.) We find it regrettable that our colleague finds it necessary to employ such rhetoric, especially in that it adds so little to the resolution of a seemingly intractable problem that is plaguing the administration of justice across the country. The most recently available departure statistics indicate that sentencing judges more frequently depart below the guidelines’ recommended ranges than above. Thus, the dissent errs in suggesting that the majority of this Court feels "compelled” to reduce the prison population. (Post, p 692.) MCL 750.110; MSA 28.305 (emphasis added). It is immaterial to the result that Mr. Milbourn was sentenced under the first edition of the guidelines. First, resort to the guidelines is not necessary where the most severe possible sentence has been imposed in a case as replete with mitigating factors as the present. Second, it is the second edition of the guidelines, not the first, which more accurately reflects the relative severity of particular cases and which, therefore, is the most useful available tool for conducting a proportionality analysis even where the sentence was imposed pursuant to the first edition. Judge Kallman, prior to the conviction in this case, took a plea from the defendant in the neighboring county of Ingham for attempted malicious destruction of property and, because his sentence was imposed after that of Judge Shuster, presumably had before him all of the same information about the defendant and his activities. Judge Kallman declined to impose the maximum sentence. Furthermore, although Judge Kallman could have decided to impose a sentence on Mr. Milbourn which would run consecutively to that handed down by Judge Shuster, he determined not to do so. See People v Chambers, 430 Mich 217; 421 NW2d 903 (1988) (when an offender commits a crime while free on bond for a prior felony, the judge last to sentence the offender may impose a consecutive sentence). The dissent has attached an appendix said to prove “how frequently the guidelines fail to reflect the seriousness of the crime or the offender’s prior criminal history.” (Post, p 695.) We caution against an assumption that any case held in abeyance pending the release of a given opinion is considered likely to be affected by that decision. By the same token, we caution against the assumption that we have formed any opinion regarding either the dissent’s characterization of the factual underpinnings of these cases, or their proper resolution, despite the dissent’s admitted willingness to delve into review of the merits of those cases absent briefing and oral argument.

AFTER REMAND Brickley, J. The issues presented in this case are whether a plaintiff, before commencing a suit which disregards the terms of a release, must tender the consideration recited in the release and, if so, at what point before or during the proceedings must this tender take place. We hold that when a plaintiff has entered into a settlement agreement tender of consideration recited in the agreement must occur not only -within a reasonable time after execution of the agreement, but in all cases prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. i On November 16, 1983, plaintiff resigned as personnel director of Cranbrook Educational Community. In connection with her termination, plaintiff signed a document entitled "Release of Claims.” The release is dated November 16, 1983, and reads in pertinent part as follows: For and in consideration of Cranbrook Educational Community’s (Cranbrook) acceptance of the voluntary resignation of Judith Stefanac (Stefanac) and Cranbrook’s further agreement to pay Stefanac for two weeks, less applicable state and federal withholding taxes, Stefanac, for herself, her heirs, administrators and executors, does hereby fully and forever release, acquit and discharge Cranbrook, its agents, servants and representatives, of and from any and all claims, demands, actions and causes of action of every kind, nature and description which Stefanac may have had, may now have or may hereafter have by reason of any matter, cause, act or omission arising out of or in connection with Stefanac’s employment with and/or resignation from Cranbrook. After signing the release plaintiff received a check from defendant for $2,090.65. The check was purportedly intended to be payment for four weeks accrued vacation time and two weeks’ severance pay. Plaintiff filed suit against Cranbrook on August 9, 1984, alleging wrongful discharge, sex discrimination, and termination in violation of public policy. Subsequently, defendant filed a motion for accelerated judgment, arguing that the release barred plaintiff’s claims. In response, plaintiff filed an affidavit challenging the validity of the release. The parties agreed that plaintiff's affidavit raised a question of fact, and therefore the motion was denied without prejudice. Following a discovery period of one year, defendant again moved for dismissal of the action on the grounds that the release barred suit. Defendant also argued at this point, that plaintiff’s failure to tender the consideration received in exchange for the release prevented her from now attempting to rescind the agreement. Defendant’s position was based on this Court’s decision in Leahan v Stroh Brewery Co, 420 Mich 108; 359 NW2d 524 (1984). Plaintiff conceded that Leahan merely reaffirmed the law as it had existed in the past, but asserted that the facts of Leahan differed from the instant case. Further, plaintiff maintained that the release was void for lack of consideration and that she was entitled to all money received as a result of her termination. The trial court interpreted Leahan as dispositive of the issue and granted defendant’s motion. Three weeks later, plaintiff filed a motion for rehearing. On rehearing, plaintiff sought the trial court’s consent to tender the disputed consideration and, following tender of the money, the opportunity to refile her suit against defendant. This is the first indication that plaintiff was willing to repay the consideration recited in the release. The trial judge affirmed the previous ruling, dismissing plaintiff’s complaint with prejudice. Plaintiff appealed as of right, raising two issues. Plaintiff continued to argue that she was entitled to all the money received and therefore that tender was not required in order to maintain the action. Alternatively, plaintiff argued that her offer to tender back the disputed consideration was within a reasonable time under the circumstances of the case. Basing its analysis on an examination of Leahan, the Court of Appeals held: [T]he consequence of the Leahan decision is that if a release recites that consideration was paid and if money was in fact paid, a plaintiff may not argue that the money was not actually consideration, regardless of any evidence to that effect. That seems to be what Leahan holds. If not, we believe it is up to the Supreme Court to say so. Consequently, we affirm.[ ] [Emphasis added.] However, the Court of Appeals did not directly address plaintiff’s alternate argument that tender of the disputed consideration occurred within a reasonable time. Consequently, we issued an order vacating the judgment of the Court of Appeals and remanded the case for consideration of the second issue raised by plaintiff. 428 Mich 903 (1987). On remand, the Court of Appeals ruled that “plaintiff’s offer to tender back the disputed con sideration was within a reasonable time.” The Court instructed the trial judge to issue an order which would allow plaintiff thirty days to make restitution to the defendant. Further, the trial court held: If such restitution is made, trial shall be had on the merits, including determination of the validity of the release. If such restitution is not made, judgment may enter for defendant. Nothing in this opinion is intended to preclude the trial judge from making appropriate findings of fact after trial, including resolution of how much, if any, of the monies paid plaintiff were in consideration of the release.[ ] We granted defendant’s application for leave to appeal. 430 Mich 892 (1988). ii It is a well-settled principle of Michigan law that settlement agreements are binding until rescinded for cause. Further, tender of consideration received is a condition precedent to the right to repudiate a contract of settlement. See, generally, Randall v Port Huron, St C & M C R Co, 215 Mich 413; 184 NW 435 (1921); Kirl v Zinner, 274 Mich 331; 264 NW 391 (1936); Leahan v Stroh Brewery Co, supra. The policy consideration underlying the general rule is that the law favors settlements. A party entering into a settlement agreement, offering adequate consideration, is entitled to rely on the terms of the agreement. The rationale for the rule was explained further by this Court in Kirl v Zinner:___ A compromise and release is not to be confused with the law of contract, in which equivalents are exchanged, for the very essence of a release is to avoid litigation, even at the expense of strict right. * * * It is a general and salutary rule that one repudiating or seeking to avoid a compromise settlement or release, and thereby revert to the original right of action, must place the other party in statu quo, otherwise the very fact of payment, in consideration of the compromise or release, will likely operate as a confession of liability. [274 Mich 334-335. Emphasis in original.] Plaintiff asserts that she should be excepted from this rule because the release was void and not merely voidable. The validity of the release was challenged by plaintiff on the grounds that it lacked consideration and was procured under duress and fraud. Specifically plaintiff asserts that defendant misrepresented the terms of the agreement. Moreover she asserts that defendant knew that plaintiff was legally entitled to the money she received, that she needed the money to support her family, and that defendant waved the checks at her refusing to give plaintiff any funds unless she signed the release. Plaintiff contends that although the release recites that consideration was received, she in fact did not get anything in exchange for signing the settlement agreement. Therefore tender was not necessary prior to filing suit because "there is nothing to be returned to restore the status quo ante.” However, plaintiff admits that she signed the release and that she received four checks. Subsequently she endorsed and cashed the checks received. We start with the presumption that the plaintiff executed the release knowingly and that the recited consideration was received. Porth v Cadillac Motor Car Co, 198 Mich 501; 165 NW 698 (1917). Kirl v Zinner, supra. The plaintiff has the burden of showing, by a preponderance of the evidence, that the release is unfair or incorrect on its face. Id. Even in light of these presumptions and the plaintiff’s burden, the plaintiff must tender the recited consideration before there is a right to repudiate the release. Id. The only recognized exceptions in Michigan are a waiver of the plaintiff’s duty by the defendant and fraud in the execution. Plaintiff has not raised either exception and thus is not relieved of the duty to tender the consideration recited in the release. Our reports are replete with authority that negate plaintiff’s contentions. In Niederhauser v Detroit Citizens’ St R Co, 131 Mich 550, 552; 91 NW 1028 (1902), we held: The law is well settled that, if one seeks to rescind a settlement on the ground of fraud or mistake, he must, after discovering the fraud, place the other party in statu quo. In Randall, supra at 420, Justice Stone wrote: "While there is still some real conflict in the cases as to whether or not there has to be a tender of the amount received when it is sought to set a release aside on the ground of fraud, by the weight of authority the cases divide themselves into two classes, first, where the fraud goes to inducing the injured party to sign a release, the effect of which he understands. And, second, where that fraud is in inducing him to sign a release under the belief that he was signing something else. I am satisfied that Michigan has recognized this distinction and has held, in the cases already cited, that where the fraud goes to inducing the injured party to sign a release, tender of the amount received has to be made within a reasonable length of time after discovery of the fraud. In other words, if a party claims that he was induced, through fraud, to enter into the contract, in order to rescind that contract, he must put the parties in statu quo. That is, he must return the money that he received, and ask to have the contract or agreement or release set aside on the ground that he entered into it through fraud.” Similarly in Kirl v Zinner, supra at 335, we said: "Where a party to a compromise desires to set aside or avoid the same and to be remitted to his original rights, he must place the other party in statu quo by returning or tendering the return of whatever has been received by him under such compromise, in case it is of any value, and so far as possible any right lost by the other party because thereof. This rule obtains even though the contract was induced by the fraud or false representations of the other party, or was obtained under duress, or was made under a mistake of fact or as to the law; and until this is done the settlement will constitute a good defense. By electing to retain the property, a party must be held to be bound by the settlement. The rule applies to actions ex contractu as well as ex delicto.” 12 CJ, p 355, § 57. Our most recent pronouncement in this area is Leahan v Stroh Brewery Co, supra, which is in accord with this case and supports our holding. In Leahan, we upheld the lower court’s rejection of plaintiff’s challenge of a release executed in connection with his resignation from Stroh Brewery Company. Mr. Leahan filed a complaint against the defendant, alleging age discrimination and breach of employment contract. The defendant raised as a defense the language in the plaintiff’s resignation letter which released the defendant of further liability. In response, the plaintiff claimed that the release was voidable because of duress and lack of consideration. As in this case, Mr. Leahan did not claim that he did not receive anything in exchange for the release. Rather, he claimed that the money he received was not consideration, but instead was representative of some other benefit that he was entitled to under the agreement. Our holding in Leahan reflects our position in this case that the consideration recited in the release must be tendered before the plaintiff can maintain an action for claims arising out of the settlement agreement. Plaintiff’s allegations of fraud are insufficient to bring her claim within the fraud in the execution exception. Plaintiff admits that she read and executed the release agreement. She was the personnel director of the institution and, in fact, had dealt with similar release agreements in other employment termination situations. Thus, we can impute to her full understanding of the terms and conditions of the agreement. Additionally, defendant has not at any time during the trial court proceedings waived plaintiff’s obligation to tender the consideration recited in the release agreement. Finally, plaintiff’s allegation that the release was void because it lacked consideration is directly contrary to the express language of the release. Thus, plaintiff is not relieved of her duty to tender the consideration she received. hi The dissent raises the question whether tender is a precondition to an action in equity based on the rule announced by this Court in Style v Greenslade, 364 Mich 679, 683; 112 NW2d 92 (1961). In Style we held that "[i]f the release is upheld in the chancery proceeding, that should end the matter. If the release is held invalid, plaintiff may then proceed with her law action involving questions of negligence and damages.” On this authority the dissent would remand the case allowing Stefanac to amend her complaint to seek cancellation of the release (post, p 210, Levin, J., dissenting) even though plaintiff has not requested such relief. Albeit it was at this Court’s initiative in Style, supra, p 683, that the case be "remanded and further proceedings therein enjoined until plaintiff may bring and have determined an appropriate chancery action,” we read Style not as authorizing a similar disposition in the instant case but as precedent that a plaintiff seeking to avoid a release may first seek equitable relief. However, the record shows no effort on the part of plaintiff in the instant case, at the time of bringing suit, to raise an issue as to the validity of the release executed in conjunction with her resignation. Rather, plaintiff merely ignored the existence and terms of the agreement and filed an action in contravention of the agreement, while at the same time retaining the benefit derived from the agreement. Plaintiff did not challenge the validity of the release until after defendant had raised it as a defense barring plaintiff’s action at law.. Conversely, defendant has continued to maintain that plaintiff’s action is barred by the existence of the release executed by plaintiff. Although defendant did not specifically raise nontender as a defense until more than one year had passed after the commencement of the action, we find it sufficient that defendant relied on the binding nature of the agreement as an affirmative defense to the action. Whether the tender rule announced today would preclude a plaintiff from bringing an action seeking solely equitable relief is beyond the scope of this Court’s limited grant order and, given the facts of this case, such an analysis goes beyond what is necessary to resolve this dispute. Accordingly, we find it unnecessary to rule on the continued legitimacy of Style in view of the fact that the consolidation of the chancery court with courts of law no longer requires that a plaintiff bring separate actions in equity and law. We make no further ruling on whether a plaintiff who, under Style, decides to file a separate equitable action, would later be precluded from bringing an action at law by the mandatory joinder rule, or principles of res judicata and collateral estoppel. However, the tender rule set forth here requires that whenever a legal claim is raised in contravention of a settlement agreement, even if joined with an equitable claim, tender is a precondition. Anything less would nullify the purpose of the tender rule. The dissent’s alternative argument that there will be no unjust enrichment in allowing plaintiff to proceed with her actions as filed is equally without merit. The dissent asserts: [T]his Court should provide Stefanac an opportunity to prove her claim that she could not obtain amounts admittedly due her without signing the release, and that the two weeks’ pay, recited as consideration in the release, was, as she asserts, owed as an additional two weeks’ vacation pay. [Post, p 196, Levin, J., dissenting.] However, the plaintiff’s allegation that the money she received was money already owed her is merely a restatement of the claim that the release is invalid because it lacked consideration. Further, plaintiff’s actions of endorsing the check clearly marked as representing "severance pay” are contrary to her assertions in this action. Absent an appropriate proceeding to determine the validity of the release, we do not find it necessary to extend our review beyond the writings offered in support of defendant’s claims. In this regard, the dissent draws an analogy to an accord and satisfaction. An accord is a contract whereby the obligee agrees to discharge a preexisting duty in exchange for some substituted performance. (See 2 Restatement Contracts, 2d, § 281, pp 381-382). If any conclusion is to be drawn from such an analogy, it must be that plaintiff’s actions amount to a satisfaction. By cashing the checks, plaintiff accepted defendant’s substituted performance and discharged any further duty owed. (Id., see also 1 Restatement Contracts, 2d, §69[2], p 164). Finally, the dissent contends that our reading of Leahan "contradicts] a universal tenet of the law of contracts that the parol evidence rule does not prevent a showing that there has been nonpayment/failure of consideration” (Post, p 206, Levin, J., dissenting). Properly understood, the tender rule is not a rule of evidence but rather is a rule of procedure. We do not contest the dissent’s enunciation of the principles encompassing the parol evidence rule. However, until plaintiff either challenges the validity of the release on equitable grounds or preserves the right to challenge or rescind the release by tendering the consideration recited in the release prior to or simultaneously with bringing suit, the parol evidence rule has no application. Parol evidence is admissible to explain the terms of the contract and has application only after the terms of the agreement have been challenged. We observe that plaintiff is not claiming that she did not receive any money as a result of executing the release agreement. We also note that plaintiff is not merely asserting a claim for an additional two weeks’ pay. Rather, plaintiff’s actions amount to an attempted rescission of the agreement rather than an action whereby plaintiff seeks to enforce the terms of the release. IV Having set forth the general rule that a plaintiff has a duty to tender the consideration recited in a release, we turn next to the question of the period of time during which the tender must take place. There are a line of cases that have addressed the question what is a reasonable time within which plaintiff can repudiate and tender other than by filing a lawsuit. The earliest case dealing with this question is Bertha v Regal Motor Car Co, 180 Mich 51; 146 NW 389 (1914), in which the plaintiff suffered an eye injury. Following medical treatment he was informed that he would recover his eyesight in approximately seven weeks. The plaintiff entered into a settlement agreement releasing the defendant of all claims for damages resulting from the injury. Subsequently, the plaintiff learned that the doctors had misrepresented the extent of his injury. ”He immediately caused the sum of $110, with interest, to be tendered back to defendant company. Through its president this tender was refused, and suit was at once instituted.” Id. at 54. The defendant pled the release as a defense, and the circuit court directed a verdict in its favor. The Bertha Court reversed the verdict in favor of the defendant, holding that the plaintiff had properly repudiated the settlement agreement and that the defendant’s actions in refusing to accept tender and paying for the plaintiff’s medical treatment amounted to an adoption and ratification of the doctors’ misrepresentation of the extent of the plaintiff’s injuries. This Court relied on Bertha in Burns v Reading Estate, 188 Mich 591; 155 NW 479 (1915), holding that a plaintiff must tender restitution promptly and without unreasonable delay upon discovery of the fraud or he will be held to have ratified the release. The Court found that the plaintiff’s failure to rescind by refunding the contract consideration for a period of eighteen months was an unreasonable delay. "His long acquiescence and failure to complain promptly, as was his duty on discovery of the true conditions operated, as a matter of law, ... to reaffirm the contract of settlement which has now become a bar to the prosecution of his stated original cause of action.” Id. at 604 (emphasis added). Randall v Railway Co, supra, is also instructive on this issue. This Court made three specific findings in Randall. First, the Court adhered to the general principle that a settlement agreement was binding "until rescission by repudiation and ten der.” Id. at 423. Then the Court stated that tender was a prerequisite to the right to repudiate and that the commencement of a lawsuit is not a proper means to repudiate a settlement. Finally, the Court held: It is finally contended by appellant that, if any tender was necessary, the tender made on the trial was sufficient. We think not, for the reasons stated and for the further reason that the tender was not made within a reasonable time. The long period of delay from the date of settlement to date of tender at the trial, of two and a quarter years, cannot be said to be a reasonable time as matter of law. [Id. at 424. Citations omitted.] The rule that is derived from the foregoing analysis is that tender must occur within a reasonable time after the plaintiff learns of the grounds upon which the release and settlement could be repudiated. What is reasonable under the circumstances is a matter of discretion for the trial court. Thus in this case, had Ms. Stefanac made an offer of tender within the eight-month period between the execution of the release and the filing of suit, the issue of the reasonableness of her action would have been a matter of discretion for the trial court. However, the trial court had no occasion to rule on this issue because instead of repudiating the release agreement plaintiff proceeded to file suit in contravention of the terms of the release. Independent of the issue what constitutes a reasonable time within which to repudiate a settlement is the question whether tender is permissible after commencement of an action in contravention of an agreement. Prior to this action, the issue was not squarely before the Court. The cases which have factually disallowed tender after the com mencement of an action have not always clearly identified the rationale behind such action. It has not been clear in those cases whether the litigation was barred because tender did not occur within a reasonable time or whether it was the lawsuit itself that prevented the plaintiff from asserting a claim. However, we find the rule to be that in order to preserve the right to challenge or rescind a release agreement, tender must occur prior to or simultaneous with the filing of a suit alleging a cause of action arising out of the release agreement. Plaintiff relies on Carey v Levy, 329 Mich 458; 45 NW2d 352 (1951), and McDonald v Zinn Drywall, 134 Mich App 270; 350 NW2d 864 (1984), which in turn relies on Carey, to support her argument that the tender in this case, after the commencement of suit, was within a reasonable time. Plaintiff further argues that what constitutes a reasonable time must be determined case by case. We. disagree. In Carey, the plaintiff brought suit to recover damages as a result of an automobile accident. As a defense, the defendant offered the release executed by the parties. The trial court conditionally dismissed the action, allowing the plaintiff a forty-day grace period within which to make restitution. The plaintiff refused to comply with the order and then appealed. The only question at issue on appeal was whether the plaintiff had an obligation to tender any consideration. The Court adopted in its rationale, without reference to the grace period, the general proposition that the plaintiff had an obligation to tender the consideration:_ Unless we hold in accord with the foregoing authorities, we permit plaintiffs to retain the money they received from defendants, notwithstanding they would withhold from defendants the consideration for which the money was paid to plaintiffs — i.e., the release from liability and from the annoyance and expense of litigation. "If that (claimed loss of memory) disposes of the matter a safe retreat is open to parties to a settlement, for it shows an easy way to avoid a release.” Kirl v Zinner, supra. And further, it would materially tend to discourage settlements between parties involved in this type of cases, if the settlement could be avoided without restitution. Why should one pay a substantial sum for his release from an asserted liability, if he knows that the opposite party by merely advancing a claim of mental incompetency may disavow his release and bring suit without first placing the defendant in statu quo? See "Restitution and Unjust Enrichment,” 46 Am Jur, p 99. "The requirement that the other party to the transaction should be placed in his original position exists to prevent enrichment by the rescinding party at the expense of the other.” Restatement of the Law, Restitution, ch 2, §65e. [Id. at 464-465. Emphasis added.] However, despite this reasoning, the Court, apparently following the lead of the trial court which had not been disputed by the defendant, remanded, giving the plaintiff thirty days to tender restitution and reinstate the suit. The issue of the grace period was simply not before the Court. The defendant’s failure to object to the trial court’s order amounted to a waiver of the issue. We hold as a matter of law that a plaintiff must, in all cases where a legal claim is raised in contravention of an agreement, tender the consideration recited in the agreement prior to or simultaneously with the filing of suit. To allow a grace period for tender after the commencement of a lawsuit would undermine the very rule announced by this Court in Carey. Although seemingly harsh, we find that this rule is necessary in order to preserve the stability of release agreements. As we have previously stated, a defendant is entitled to rely on the binding nature of the agreement. The very essence of a release and settlement is to avoid litigation. The plaintiff is not entitled to retain the benefit of an agreement and at the same time bring suit in contravention of the agreement. CONCLUSION The indispensable ingredient for the utility of agreements is the principle of enforceability. The uniqueness of an agreement not to sue is that it is an agreement not to enforce other rights — an agreement to forbear enforcement. In an increasingly litigious society, the utility of such an agreement takes on increasing importance, both for overburdened courts and for economic vitality. However, when the very instrument that is intended to insure forbearance of litigation itself fosters a separate layer of litigation that is intended to resuscitate the litigability of the matter that was the subject of the settlement, enforceability (judicial scrutiny) can be defeating of the very stability the contractual instrument is intended to foster. The tender rule, therefore, is of more than historical significance. Certainly no legal instrument can be totally isolated from judicial review but in order to raise a legal claim beyond the terms of the agreement a plaintiff must tender. When a contract not to sue recites consideration and there is no allegation of fraud in the execution, the tender rule provides a fair and necessary check against the instability of contracts not to sue. To hold otherwise would undermine the principle of the enforceability of contracts in the broadest sense. Plaintiff brought suit on August 9, 1984, and it was not until more than a year later that plaintiff manifested an intention to tender the disputed consideration. We hold that plaintiff is not entitled to commence suit in contravention of the settlement agreement. The judgment of the Court of Appeals is reversed, and the trial court’s dismissal of the plaintiff’s claim with prejudice is reinstated. Riley, C.J., and Cavanagh, Boyle, and Griffin, JJ., concurred with Brickley, J. The plaintiff had also received separate checks for refunded retirement contributions and travel expenses. Defendant’s motion was filed on September 4, 1984. Thereafter, defendant raised the release as an affirmative defense in its answer filed on October 16,1984. We decided Leahan three months after defendant’s original motion. Plaintiff received a check which was the equivalent of six weeks’ salary. The check was itemized by defendant to be four weeks of accrued vacation pay and two weeks’ severance pay. Plaintiff claims that at her dismissal she had accrued six weeks of vacation time and therefore the check did not include any consideration in exchange for the release agreement. Rather, the money received was for six weeks’ vacation pay to which plaintiff was entitled. Defendant contends that the policies of the institution prohibit an employee from accruing more than four weeks of vacation time. We are not persuaded by plaintiff’s argument that defendant had the burden of raising the tender issue at the time of the first motion. It is sufficient that defendant raised the release as a defense. See MCR 2.116(C)(7). This is especially significant in light of the fact that Leahan was not decided until three months after the ruling on defendant’s first motion. Further, when defendant did specifically raise as a defense plaintiff’s failure to tender the recited consideration, plaintiff still refused to tender any money received. Stefanac v Cranbrook Educational Community, unpublished opinion per curiam of the Court of Appeals, decided January 27, 1987 (Docket No. 89512). Stefanac v Cranbrook Educational Community (On Remand), 164 Mich App 709, 716; 417 NW2d 582 (1987). Id. Q- [W]hen you signed [the release] were you mindful of what it contained? A. Yes, I had read it. I could comprehend what it said. Q. But you acknowledge you did receive something additionally, namely the severance pay that you otherwise would not have received? A. Not received in terms of pay? Q. Yes. A. That’s right. Slater v United States Health & Accident Ins Co, 133 Mich 347; 95 NW 89 (1903). Randall v Port Huron, St C & M C R Co, 215 Mich 413; 184 NW 435 (1921); Stewart v Eldred, 349 Mich 28; 84 NW2d 496 (1957). We assume that plaintiff was aware of the Style remedy. While it may have been suitable to guide the plaintiff in Style on her legal options when there was no clear precedent, we do not think it within our province to do so now. It is not the function of this Court to plead a plaintiff’s case or exercise specific legal options for her. See n 2. The dissent credits us as being inspired by "generosity of spirit” in allowing defendant to plead nontender so late in the litigation. (Post, p 212, Levin, J., dissenting.) However, at the risk of rebuking the compliment, we must point out that defendant need not specifically raise the tender issue because until plaintiff tenders the consideration recited in the release, it is the existence of the release and its terms which prohibit the plaintiff from bringing suit. By pleading the release as a defense, defendant has complied with the requirements of MCR 2.111(F). The Michigan Constitution of 1850 states that "[t]he legislature shall, as far as practicable, abolish distinctions between law and equity proceedings.” Const 1850, art 6, § 5. The same provision was repeated in the 1908 Constitution. Const 1908, art 7, § 5. The Legislature acted upon this directive by giving the Supreme Court the power to promulgate the rules as may be practical to improve the practice by "[t]he abolishing of distinctions between law and equity proceedings . . . .” 1857 CL 3390 approved April 4, 1851. See also 1948 CL 601.14 repealed by 1961 PA 236, § 9901, effective January 1, 1963. Along with this statute, a separate statutory provision was enacted which vested distinct jurisdiction in courts at law and courts in equity, 1915 CL 12299, see also 1948 CL 606.1 et seq. It was not until 1963 that jurisdiction over both equitable and legal claims was vested solely in one circuit court. See MCL 600.601; MSA 27A.601; Const 1963, art 6, § 5. MCR 2.203(A)(1) states in pertinent part: In a pleading that states a claim against an opposing party, the pleader must join every claim that the pleader has against that opposing party at the time of serving the pleading, if it arises out of the transaction or occurrence that is the subject matter of the action .... [Emphasis added.] Furthermore, GCR 1963, 203.1, upon which MCR 2.203(A)(1) was based, specified that a party must join every equitable and legal claim arising out of the same transaction or occurrence in one proceeding. As the dissent states "[t]he law does not permit an employer to withhold the payment of wages and other amounts due an employee . . . (Post, p 195, Levin, J., dissenting.) Accordingly, plaintiff had other legal options available to her to receive payment for the additional two weeks’ vacation pay she now claims is due to her. See, e.g., Crawley v Studebaker Corp, 183 Mich 462; 149 NW 1019 (1914), and Porth v Cadillac Motor Co, 198 Mich 501; 165 NW 698 (1917). As a safeguard in a situation such as in Bertha, (i.e., tender offered but refused) we suggest that plaintiff place the consideration received in an escrow account with the court. Such action on the part of a plaintiff will remove any doubt as to whether tender, in fact, occurred. Further, it will provide a time frame from which the trial court can access whether tender occurred within a reasonable time. See, e.g., Burns v Reading Estate, supra, Randall v Railway Co, supra, Speath v Merchants’ Life Ins Co, 245 Mich 100; 222 NW 88 (1928), Kirl v Zinner, supra, and Leahan v Stroh Brewery Co, supra.

AFTER REMAND Brickley, J. I am unable to agree entirely with the analysis adopted in the opinions of either Justice Boyle or Justice Archer. I believe that the trial judge was entitled to base his sentence not only on the defendant’s prior conviction, but also on testimony concerning the underlying facts of the prior conviction, a pending charge, and an uncharged offense. The defendant, however, was denied his right to test the accuracy of these allegations regarding his conduct. For this reason, it is my opinion that this case should be remanded to the trial court. On remand, the sentencing judge should indicate with greater specificity which facts he relied on in imposing sentence. If the judge determines that he relied on allegations against the defendant which did not result in a conviction, then the defendant must be afforded an opportunity to challenge the accuracy of those allegations. If the judge then determines that the accuracy of those facts has not been determined by a preponderance of the evidence, the defendant should be resentenced. Finally, if a resentencing is ordered, the judge will be entitled to rely on testimony containing facts underlying an acquittal which was obtained after the original sentencing in this case, subject to the defendant’s right to dispute the accuracy of that testimony. i Defendant Ewing was convicted by a jury of first-degree criminal sexual conduct. The opinion for reversal accurately summarizes the testimony given at trial and at the pretrial Golochowicz hearing, as well as the appellate history of this case. Post, pp 463-468 (Boyle, J.). In addition, I observe that the defendant, at the time of sentencing, had pled nolo contendere to the first-degree criminal sexual conduct charge involving complainant No. 1. Following his conviction and sentence in this case, the defendant was acquitted of charges arising from the violent sexual assault alleged by complainant No. 3. He was never charged with the crime alleged by complainant No. 6, which the judge at the Golochowicz hearing described as a "simple assault.” At the sentencing hearing, the prosecutor urged the court to depart from the guidelines and impose a very lengthy sentence. The prosecutor not only emphasized the defendant’s convictions involving the 1979 assault on complainant No. 1 and in the present case, but also insisted that the court rely on allegations against the defendant which had not resulted in convictions. The prosecutor vehemently argued that a sentencing judge should be able to make assumptions about a defendant’s guilt of separate criminal charges, and he urged the trial judge to "have . . . the guts to do something more to look beyond the substance of this particular case in the form of it just on the record.” The defendant objected on the record, prior to the imposition of sentence, to the consideration of arrests or any charged offense not resulting in conviction as evidence of guilt in imposing sentence. The trial court did not respond to the defendant’s objection. After hearing from the prosecutor and defense counsel, the trial court explained its decision to depart from the guidelines’ recommended range of ten to twenty years. In imposing a life sentence, the trial judge stated, inter alia: As a part of this overall process a Golochowicz Hearing was held in which I very vividly had to hear the testimony of other victims who claimed you assaulted them in some manner or form. I had to make that ruling or determination relative to admissibility of similar testimony in this trial. It’s obvious to me you have carried on a course of conduct involving attacks on young women over a periods [sic] of five years. II The judge’s references to the witnesses produced at the Golochowicz hearing and to a "course of conduct” do not clearly identify particular acts of the defendant. To my mind, neither the defendant, as suggested by Justice Boyle, nor the trial judge is solely to blame for this ambiguity. The judge has an obligation to articulate reasons for imposing a sentence and to respond to defense challenges to the propriety of using certain information. The defendant, on the other hand, has a duty to raise matters of accuracy and should, as a matter of course, request rulings or findings from the judge when necessary. Here, the defendant clearly objected to the judge’s consideration of alleged criminal acts which did not result in convictions, but he received no ruling or explanation from the judge in response to the objection. It is clear that the judge considered the testimony of the similar acts witnesses. However, it is not clear which allegations presented at the Golochowicz hearing were considered. Under these circumstances, this case should be remanded to the trial court for further development of the sentencing record. First, the trial court should explain with greater specificity which conduct, convictions, or charges played a role in determining the defendant’s sentence. After this is done, the defendant should be given an opportunity to challenge the accuracy of those allegations regarding criminal acts for which no conviction has been obtained and upon which the original sentence was based. If the judge determines that the accuracy of the allegations has not been proven by a preponderance of the evidence, the original sentence should be vacated and the defendant resentenced. hi If, on remand, the trial judge determines that acts which did not end in conviction contributed to his sentencing decision, the defendant should be permitted to exercise his right to contest the accu racy of those allegations in accordance with the American Bar Association Standards. In People v Walker, 428 Mich 261; 407 NW2d 367 (1987), this Court set forth procedures to govern the resolution of disputes at sentencing about the proper scoring of guidelines variables. Specifically, we adopted Standard 18-6.4(c) of the American Bar Association Standards for Criminal Justice. Walker, supra, pp 267-268. Paragraph c of this standard requires that the prosecutor prove a disputed variable by a preponderance of the evidence once the defendant has "effectively” challenged its accuracy. Id. It is consistent with our policy decision in Walker to adopt also paragraph b of the same standard in cases where the defendant is required to rebut pending or uncharged criminal allegations. Standard 18-6.4(b) provides: [Where there is a need for further evidence] the sentencing court should conduct a hearing with respect to all material factual disputes arising out of any presentence reports or the evidentiary proffers of the parties. Although the sentencing process should not become a "minitrial,” occasions will arise when, in order to ensure that a sentence is not founded on material misinformation, the sentencing court should permit the parties to subpoena witnesses and to cross-examine persons who rendered [such] reports to the court and persons providing information contained in such reports. Hearsay and similar types of information inadmissible at trial may be received in the discretion of the court, but evidence offered by the parties should be subject to cross-examination. The guiding principle should be the provision of an effective opportunity for both parties to rebut all allegations likely to have a significant effect on the sentence imposed. [3 ABA Standards for Criminal Justice (2d ed), Standard 18-6.4(b), p 18-448.] While Standard 18-6.4(b) stops short of requiring a trial-type hearing at sentencing because of the great cost to the state and the delay which would result in disposing of cases, it places a limit on the trial judge’s discretion to consider some types of disputed information at sentencing without entertaining further proofs at the defendant’s request. It should be observed that this procedure focuses on the right to rebut allegations which the judge may rely upon in sentencing, not on the right of allocution. Moreover, the need for a hearing arises only where there exist material disputes regarding facts likely to influence the court’s sentencing decision which the court and the parties cannot resolve without such a hearing. rv Because of the possibility of resentencing, it is necessary to determine whether prior acquittals must be disregarded, since the acquittal which occurred after the defendant’s original sentencing would be a prior acquittal at resentencing. I agree with Justice Boyle and a number of federal decisions that the mere fact of a prior acquittal of charges whose underlying facts are properly made known to the trial judge is not, without more, sufficient reason to preclude the judge from taking those facts into account at sentencing. A While the meaning of a valid criminal conviction is clear, i.e., the jury has found the defendant guilty beyond a reasonable doubt, an acquittal does not necessarily mean that the defendant did not engage in criminal conduct. See post, pp 473-474 (Boyle, J.). As one court explained, A verdict of acquittal demonstrates only a lack of proof beyond a reasonable doubt; it does not necessarily establish the defendant’s innocence. . . . The jury needed only a reasonable doubt to acquit or quite plausibly it may have returned its favorable verdict because of lenity. [United States v Isom, 886 F2d 736, 738 (CA 4, 1989).] Any number of reasons not related to the defendant’s factual guilt or innocence may be hypothesized to explain a jury’s decision to acquit. For example, a jury may acquit a factually guilty defendant because the prosecution was, for one reason or another, unable to present its best evidence, as would be the case where a strong witness died or disappeared before trial, yet sufficient evidence remained to persuade the prosecutor to proceed to trial. To take another example, it is also true, unfortunately, that a jury may acquit a factually guilty defendant because of confusion with regard to the judge’s instructions. Under our present framework of discretionary sentencing, sentences are based more on an assessment of the offender than on the offense. Were the wisdom of this system a judicial rather than a legislative matter, then arguments in favor of sentencing convicted criminals solely on the basis of the conduct for which they have been convicted could well prove persuasive. For better or for worse, however, our discretionary sentencing scheme, like the sentencing guidelines we have implemented to assist the judges who must adhere to that scheme, requires the use of relevant, accurate information about the offender, even though that information does not necessarily relate to the conduct which resulted in conviction and exposure to criminal punishment. In sum, I agree with the court in United States v Juarez-Ortega, 866 F2d 747, 749 (CA 5, 1989): Although the jury may have determined that the government had not proved all of the elements of the weapons offense beyond a reasonable doubt, such a determination does not preclude consideration of underlying facts of the offense at sentencing so long as those facts meet the reliability standard. [Emphasis added.][ ] B This is not to say that the sentencing judge may rely on the mere fact that the defendant was once acquitted of, and therefore had necessarily been bound over on, criminal charges. This issue is not before us today. Nor need we decide whether a bindover on criminal charges necessarily means that the underlying facts have been proven by a preponderance of the evidence in the absence of an effective challenge by the defendant. The sentencing judge in this case was not confronted by the mere fact of a pending charge, an uncharged allegation of criminal conduct, or a previous acquittal. Rather, he took testimony from several witnesses at the Golochowicz hearing, one of whom was permitted to testify at trial and was cross- examined. I do not believe that the judge, who was entitled — indeed obligated — to consider a broad range of other information in attempting to impose an appropriate, individualized sentence, should be made to disregard this sworn testimony which he witnessed in his own courtroom. As noted above, if the judge relied on allegations contained in the testimony of complainant No. 3, then on remand the defendant should be able to test the accuracy of those allegations. See § in. The defendant should not, however, be able to preclude the judge from basing his sentence on this testimony. Since the judge on remand will be aware that a prior jury declined to find the defendant guilty beyond a reasonable doubt in the case involving complainant No. 3, he may hear argument from the parties and decide how to view this testimony in light of the acquittal. Moreover, because of the double jeopardy bar, the defendant will be unlikely to feel pressure not to effectively challenge the accuracy of the allegations underlying what will be, in the event of resentencing, a prior acquittal. In this context, it is important to bear in mind that we are not presented with the issue whether a defendant may be punished for a crime for which no conviction was obtained; this is clearly unconstitutional. Instead, we are called upon only to determine whether trial judges may, in the exercise of the broad discretion conferred upon them in our sentencing scheme, consider relevant and reliable facts about offenders when selecting appropriate punishment within the legislatively established range for offenses whose commission has been proven beyond a reasonable doubt. c In my judgment, it is unnecessary to consider what relief, if any, is appropriate when a sentencing court considers facts underlying charges pending at the time of sentencing which thereafter end in acquittal. The defendant in this case is entitled to a remand for reasons other than the sentencing judge’s reliance on such facts. If the sentencing judge on remand determines that he relied at the original sentencing on the testimony of complainant three, then the defendant, as already discussed, should be able to use his now prior acquittal to challenge the accuracy of the allegations contained in that testimony. Finally, I am concerned that, in cases involving a sentencing judge’s reliance on facts underlying pending charges, a defendant’s right to remain silent with respect to pending charges may conflict with the right to contest the accuracy of information upon which a sentence is based. I believe that we should save consideration of the procedures necessary to uphold both rights for an appropriate case. v In sum, it is my judgment that the sentencing judge should not be precluded from basing a sentence on facts underlying prior convictions, pending charges, and uncharged offenses — each of which was present in this case — where those facts have been developed through sworn testimony presented before that very judge. In the case of pending charges, uncharged offenses, and prior acquittals, however, the defendant must be afforded an opportunity to test the accuracy of those facts. Because the record does not reveal the extent to which the judge relied upon alleged conduct by the defendant for which he has not been convicted, this case should be remanded to the trial court for further development of the sentencing record. What relief, if any, should be given a defendant whose sentence is based on conduct which results in an acquittal after sentencing, and what, if any, procedures should be adopted to protect the defendant’s rights to remain silent regarding pending charges and to effectively challenge the accuracy of allegations concerning such charges, are questions to be answered in future cases. People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982). In apparent reference to People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), Prosecutor Filip opined: Mr. Ewing can commit as many criminal sexual conducts as he wants to in any County he wants to throughout the State of Michigan and he is going to get one sentence .... There was another victim here that testified in this particular Court. There is [sic] two or three other ones that have identified Mr. Ewing that they have not been charged with. So we have five, six, seven different instances, and the Michigan Supreme Court says sentence John Ewing once and do it in Washtenaw County and to hell with [complainant No. 4]; don’t do anything in Jackson County. I think that’s a disgusting position for the Michigan Supreme Court? And I urge the Court not to fall into that particular situation. [Emphasis added.] It is true, as the opinion for reversal observes, that the defendant did not specifically contest the accuracy of allegations underlying such charges. His objection, however, to any use of these allegations— in my opinion a reasonable reading at that time of Grimmett, n 2 supra — is sufficient to preserve his right to challenge the accuracy of any allegations upon which the judge relied. Id., Commentary to Standard 18-6.4, p 18-460. In addition, while many crimes are committed which do not result in the institution of criminal charges, evidence of such crimes may be admissible in court. Once again, many reasons can be given for this state of affairs. For example, witnesses disappear and their memories fade over time, considerations of cost effectiveness may dissuade prosecutors from following through on pending charges once a conviction is obtained, and, in this era of overflowing criminal court dockets, plea bargains involving the dismissal of charges have become commonplace. The majority of the federal appellate courts to consider the issue have also held that the conduct underlying a prior acquittal may be used to justify enhancement of sentences under the federal sentencing guidelines, which allow a sentencing judge considerably less discretion than Michigan trial judges presently enjoy. See United States v Rodriguez-Gonzalez, 899 F2d 177, 180 (CA 2, 1990), and cases cited therein.

ON REHEARING Brickley, J. Addison Township and Michigan Consolidated Gas Company entered into a contract in 1973 which allowed Michigan Consolidated to construct a natural gas processing plant within the township. The plant was intended to be used exclusively for gas produced from Leonard Field. In 1984, Michigan Consolidated sold its interest in the plant to defendant Gout, doing business as Lakeville Gas Associates. The township subsequently filed this lawsuit as a result of defendant’s attempt to construct a pipeline for the purpose of processing gas from outside Leonard Field. Defendant complied with state and federal regulations, obtaining all the permits necessary to construct the pipeline. The complaint asserts, inter alia, that defendant’s actions violated its zoning ordinance and special use permit. Plaintiff’s complaint was dismissed on the grounds that the Supervisor of Wells had exclusive jurisdiction and that this type of zoning could not be accomplished by contract. The Court of Appeals affirmed these findings, but remanded the case on other grounds. 171 Mich App 122; 429 NW2d 612 (1988). Plaintiff appealed in this Court, and, in lieu of granting leave to appeal, we reversed the decision of the Court of Appeals in an opinion per curiam. 432 Mich 627; 443 NW2d 139 (1989). Defendant filed a motion for rehearing, and we subsequently vacated our opinion and granted leave to appeal. 433 Mich 1201; 444 NW2d 528 (1989). The issue before us is one of statutory construction, specifically, whether or not processing plants and pipelines fall within the exclusive jurisdiction of the Supervisor of Wells pursuant to MCL 125.271; MSA 5.2963d). _ After entertaining oral argument, and given further consideration, we are convinced that the rule set forth in our earlier opinion is the correct result. The Township Rural Zoning Act (trza) is an enabling statute which gives authority to a municipality to regulate land use. The statute is a broad grant of authority with one limitation: the Supervisor of Wells has exclusive jurisdiction to regulate and control the drilling, completion, and operation of "oil or gas wells.” The statute is clear and unambiguous and accordingly must be applied as written. We hold that the exclusive jurisdiction of the Supervisor of Wells applies only to oil and gas wells and does not extend to all aspects of the production process. The legislative intent is clear from the language of the statute, and drawing distinctions on such matters is clearly a legislative and not a judicial function. We find unconvincing the defendant’s arguments that the Legislature intended to vest in the Supervisor of Wells, through the oil, gas and minerals act (ogma), regulatory control over the entire oil and gas industry. First we note that the brief filed on behalf of the Department of Natural Resources concedes that this legislative scheme does not evidence any intent for the Supervisor of Wells to have absolute regulatory power over all phases of the industry. Second, the Legislature specifically referred to the ogma and only “jurisdiction relative to wells” when it enacted the trza. Finally, defendant’s argument is unpersuasive because the regulation of wells is only excluded as to townships. There is no limitation in the city or village zoning act. This enabling act is substantially the same as the trza, granting to the individual municipality the authority to regulate land use and structures consistent with the needs of its citizenry regarding energy and other natural resources generally and without limitation. Implicit in the preclusion of township zoning "relative to wells” is that without the language zoning jurisdiction would extend to such activity and in fact does so in the other municipal zoning enabling act. Defendant relies on the principles enumerated in People v Llewellyn, 401 Mich 314; 257 NW2d 902 (1977), to support its claim of intent by the state to occupy the entire regulatory field. A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory scheme pre-empts the ordinance by occu pying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. [Id. at 322.] Because there is no express intent to preempt local regulation, except as to the zoning of wells, we must determine if the Legislature has by implication preempted all local regulation of the oil and gas industry. We hold that no such intent is evidenced in the legislative scheme. To ascertain legislative intent we look to the purposes of the statutes. The purposes of the separate regulatory acts do not conflict, nor do they suggest that uniformity is necessary to effectuate these distinct legislative goals. The duty of the Supervisor of Wells to prevent waste as set forth in the ogma clearly differentiates between the supervisor’s role at each phase of the production of natural resources. We find this action by the Legislature to denote an apparent distinction when the term "wells” was used in the trza. The defendant’s expansive view of the preemptive language in the trza to include all aspects of the production process is also not supported by the claim that uniformity is necessary because of permit requirements before transporting and processing oil and gas. The permits defendant received were not issued by the Supervisor of Wells, but rather were acquired from the dnr and Michigan Public Service Commission pursuant to other regulatory authority. Further, they were issued for only a limited purpose. We find defendant’s assertion that merely because it was required to obtain permits that have a limited purpose it should be allowed to bypass municipal regulation lacking in authority and merit. Only in very rare instances will a permit issued for one purpose obviate local zoning laws. For these reasons and those initially set forth in our opinion, we reverse the ruling of the Court of Appeals. The case is remanded to the Oakland Circuit Court for further proceedings consistent with this opinion. We again instruct the trial court that on remand it "shall reconsider its determination that this case involved impermissible 'contract zoning.’ If the circuit court adheres to that determination, it shall provide findings of fact and conclusions of law in support of that determination.” 432 Mich 637. Riley, C.J., and Cavanagh, Boyle, Archer, and Griffin, JJ., concurred with Brickley, J. The township board of an organized township in this state may provide by zoning ordinance for the regulation of land development and the establishment of districts in the portions of the township outside the limits of cities and villages which regulate the use of land and structures; to meet the needs of the state’s citizens for food, fiber, energy, and other natural resources, places of residence, recreation, industry, trade, service, and other uses of land; to insure that use of the land shall be situated in appropriate locations and relationships; to limit the inappropriate overcrowding of land and congestion of population, transportation systems, and other public facilities; to facilitate adequate and efficient provision for transportation systems, sewage disposal, water, energy, education, recreation, and other public service and facility requirements; and to promote public health, safety, and welfare. ... A township board shall not regulate or control the drilling, completion, or operation of oil or gas wells, or other wells drilled for oil or gas exploration purposes and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or abandonment of those wells. The jurisdiction relative to wells shall be vested exclusively in the supervisor of wells of this state, as provided in Act No. 61 of the Public Acts of 1939, being sections 319.1 to 319.27 of the Michigan Compiled Laws. [MCL 125.271; MSA 5.2963(1). Emphasis added.] MCL 319.1 et seq.; MSA 13.139(1) et seq. MCL 125.581; MSA 5.2931. In making the determination that the state has thus preempted the field of regulation which the city seeks to enter in this case, we look to certain guidelines. First, where the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is preempted. Second, pre-emption of a field of regulation may be implied upon an examination of legislative history. Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. . . . Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest. [Llewellyn, supra at 322-324. Citations omitted.] The purpose of the trza is to "provide for the establishment in townships of zoning districts within which the proper use of land and natural resources may be encouraged or regulated by ordinance,” while the purpose of the ogma is to prevent "unwarranted waste of gas and oil and foster the development of the industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products.” We appreciate the burdens the industry may face should a township prohibit land use for a processing facility. However, we cannot invade an exercise of legislative discretion. Further, the Legislature has adopted protective measures which limit a township’s authority to totally prohibit land use upon a showing of demonstrated need. See, e.g., MCL 125.227a; MSA 5.2961(27a).

Riley, C.J. We granted leave to appeal in this case to decide whether an employee has the right to have counsel present at a physical examination requested by an employer or its insurance carrier pursuant to § 385 of the Workers’ Disability Compensation Act, and if so, whether counsel may make an audio recording of the examination. MCL 418.385; MSA 17.237(385) provides that "[t]he employee shall have the right to have a physician provided and paid for by himself or herself present at the examination.” However, § 385 is silent as to whether an employee has the right to have an attorney present during the examination. We reject the argument that §385 should be read in pari materia with MCL 600.1445(1); MSA 27A.1445(1), and apply the rule of statutory construction, expressio unius est ex-clusio alterius — the expression of one thing is the exclusion of another. We find that an employee may only be accompanied by a personal physician during a physical examination requested by the employer or its insurance carrier. To hold otherwise would render as surplusage the above-quoted sentence from § 385 which expressly prescribes that the employee has the right to have a physician present. Therefore, we hold that §385 does not grant an employee the right to have counsel present during a physical examination requested by an employer, or its insurance carrier. In so doing, we find as moot the second issue regarding audio recordings. Accordingly, we reverse the decision of the Court of Appeals. I. FACTS AND PROCEEDINGS On August 14, 1982, the plaintiff, Sylvia Feld, was injured in a work-related accident. Three days later, she filed an application for workers’ compensation benefits, alleging a twisted neck and a sprain to the upper back, neck, and right hand. She later amended the petition to include a torn ligament in her left knee. Pursuant to MCL 418.385; MSA 17.237(385), the defendants, Robert & Charles Beauty Salon and its insurance carrier, requested that the plaintiff undergo a medical examination to be conducted by a physician of their choice. The plaintiff refused to appear for the examination unless she was accompanied by her attorney. On April 29, 1983, the hearing referee granted a motion for the defendants to suspend the payment of benefits until the plaintiff submitted herself for the medical examination. The referee held that "[pjlaintiff’s attorny [sic] has no right under the statute to be present at such examination.” This decision was affirmed by the Workers’ Compensation Appeal Board in its decision and order dated January 29, 1986. The plaintiff next filed an application for leave to appeal in the Court of Appeals. The Court dismissed the application for lack of jurisdiction, finding that no final order had been entered in the matter. The case was ultimately remanded to the bureau for a full hearing on the merits of the claim. However, a full hearing never took place because the plaintiff persisted in her refusal to undergo the examination requested by the defendants unless her counsel was present. For the second time, on November 5, 1986, the hearing referee dismissed the plaintiff’s petition for a hearing "for the reason that plaintiff’s attorney will not permit her to be examined without his attendance.” With this decision, the referee added that "[t]his dismissal will permit plaintiff’s attorney to appeal as a final order.” Again, on May 28, 1987, the wcab affirmed the decision of the referee. The plaintiff then filed a second application for leave to appeal in the Court of Appeals, which was granted. In its opinion, dated January 17, 1989, the Court of Appeals reversed the decision of the wcab and held that the plaintiff did have the right to have her attorney present at the medical examination requested by the defendants, and that the attorney may make "unobtrusive audio recordings” of the examination. 174 Mich App 309, 320; 435 NW2d 474 (1989). The defendants sought leave to appeal, which we granted on September 28, 1989. II. ANALYSIS The limited issue in this case centers on the statutory construction of MCL 418.385; MSA 17.237(385), which provides in relevant part: After the employee has given notice of injury and from time to time thereafter during the continuance of his or her disability, if so requested by the employer or the carrier, he or she shall submit himself or herself to an examination by a physician or surgeon authorized to practice medicine under the laws of the state, furnished and paid for by the employer or the carrier. If an examination relative to the injury is made, the employee or his or her attorney shall be furnished, within 15 days of a request, a complete and correct copy of the report of every such physical examination relative to the injury performed by the physician making the examination on behalf of the employer or the carrier. The employee shall have the right to have a physician provided and paid for by himself or herself present at the examination. If he or she refuses to submit himself or herself for the examination, or in any way obstructs the same, his or her right to compensation shall be suspended and his or her compensation during the period of suspension may be forfeited. Any physician who makes or is present at any such examination may be required to testify under oath as to the results thereof. [Emphasis added.] A The Court of Appeals relied on the analysis applied by the wcab in the case of Crunk v General Motors Corp, 1983 WCABO 524. In Crunk, the wcab held that § 385 of the wdca and § 1445(1) of the Revised Judicature Act should be read in pari materia because both "statutes contemplate that an injured employee will be required to submit to a medical examination.” 174 Mich App 316. The Court added: Also related to this subject matter is § 865 of the wdca, MCL 418.865; MSA 17.237(865), which authorizes the bureau to appoint an impartial physician to examine an injured employee. Section 865 of the wdca accomplishes this by direct order, while §385 of the wdca accomplishes the functional equivalent of an order by authorizing the wcab to sanction an employee who fails to appear at a medical examination requested by the employer by suspending and possibly ordering forfeiture of compensation benefits. We can perceive of no meaningful distinction between an order that directly requires a medical examination and one that coerces the employee to submit to an examination requested by the employer with the full force of wcab sanctions behind the request. [Id. at 316-317.] The Court of Appeals cited Crawford Co v Secretary of State, 160 Mich App 88, 95; 408 NW2d 112 (1987), for the rule that statutes which relate to the same subject matter or share a common purpose should be read in pari materia, even if they contain no reference to one another. However, we reject the contention that § 385 of the wdca and § 1445(1) of the rja were intended to relate to the same subject matter or were intended to have a common purpose. In Palmer v State Land Office Bd, 304 Mich 628, 636; 8 NW2d 664 (1943), this Court identified the necessary factors in order to determine if two statutes should be read in pari materia: "Statutes in pari materia are those which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose; and although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected.” [Id., quoting Rathbun v Michigan, 284 Mich 521, 543; 280 NW 35 (1938).] The rja is intended "to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof” as well as to provide procedures for the courts. The scope of the rja covers a multitude of issues. Conversely, the scope of the wdca is very specific; it was enacted to provide a prompt remedy for injured employees through an administrative process. The aim of the wdca contemplates the avoidance of the judicial process, whereas the aim of the rja is toward the organization of the court system. We find that the scope and aim of the wdca and the rja are distinct and unconnected. The fact that § 385 of the wdca and § 1445(1) of the rja each refers to medical examinations is, at best, incidental. This being so, we find that the two statutes should not be read in pari materia. By so holding, we do not suggest that § 1445(1) may never apply to a workers’ compensation proceeding. The specific language of § 1445(1) indicates that it would apply in the face of a medical examination ordered by the bureau pursuant to § 865 of the wdca. Section 1445(1) focuses on "an order . . . made by such court, board or commission, or other public body or officer . . . (Emphasis added.) It is not enough that there is a request for a medical examination in a proceeding before a public body. By the terms of the statute itself, there must be an accompanying "order . . . by such . . . public body or officer . . . .” In the matter presently before the Court, there is no order from a public body or officer. Here, the medical examination request is a result of the valid exercise of a statutorily created right of the defendants. MCL 418.385; MSA 17.237(385). To apply § 1445(1) to a § 385 examination request would require a strained interpretation of § 1445(1) that is beyond the express language of the statute. Therefore, we find that § 1445(1) is inapplicable to a medical examination request made pursuant to §385. Accordingly, we note our disagreement with the rationale that a direct bureau order pursuant to MCL 418.865; MSA 17.237(865) amounts to the "functional equivalent” of a medical examination request under § 385. Section 385 allows an employer or its carrier to request a medical examination of the employee conducted by a physician "furnished and paid for by the employer or its carrier.” Section 865 allows the bureau to appoint an "impartial physician to examine the injured employee and to report.” Section 385 empowers defendants to have their own physicians examine plaintiffs, whereas §865 empowers decisionmakers to conduct separate examinations with the directive that the physicians be neutral. We cannot ignore the fact that the Legislature has provided separate statutes to govern these two distinct scenarios. Therefore, we find that §385 cannot be treated as the "functional equivalent” of § 865. B The defendants argue that the maxim expressio unius est exclusio alterius, the expression of one thing is the exclusion of another, is applicable to the determination of whether §385 grants an employee the right to have counsel present at a medical examination requested by an employer or its carrier. We agree. While it is true that the maxim is a rule of construction as opposed to a rule of law, "[i]t is a product of 'logic and common sense.’ It expresses the learning of common experience that when people say one thing they do not mean something else.” 2A Sands, Sutherland Statutory Construction (4th ed), §47.24, p 203. Furthermore, the principle of expressio est unius ex-clusio alterius is well recognized throughout Michigan jurisprudence. See Alan v Wayne Co, 388 Mich 210, 253; 200 NW2d 628 (1972); Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971); Taylor v Public Utilities Comm, 217 Mich 400, 402-403; 186 NW 485 (1922). In Taylor, supra at 402-403, this Court recognized that "[e]xpressio unius est exclusio alterius has been a long time legal maxim and a safe guide in the construction of statutes marking powers not in accordance with the common law.” When what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions that mode must be followed and none other, and such parties only may act. [Id. at 403.][ ] There is no question that the wdca is a legislative creation which is in derogation of the common law. Tews v C F Hanks Coal Co, 267 Mich 466, 468; 255 NW 227 (1934); Revard v Johns-Manville Sales Corp, 111 Mich App 91, 95; 314 NW2d 533 (1981), lv den 417 Mich 854 (1983). "It is arbitrary and where it speaks nothing can be added nor changed by judicial pronouncement.” Tews, supra at 468- 469. It is the sole prerogative of the Legislature to alter or modify a provision of the wdca, Derwinski v Eureka Tire Co, 407 Mich 469, 482; 286 NW2d 672 (1979). Section 385 grants an employer or its carrier the authority to have a physician of its choice conduct a medical examination of an employee. The statute is clear and unambiguous in that it permits the employee "the right to have a physician provided and paid for by himself or herself present at the examination.” It is equally clear that §385 does not provide the employee with the right to have counsel present at the examination. The right of the employee is plainly granted within the statute and exists only to the extent plainly granted. Therefore, the mode prescribed within § 385 "must be followed and none other . . . .” Taylor, supra. Our analysis is buttressed by the fundamental rule of construction that every word of a statute should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible. State Bar v Galloway, 422 Mich 188, 196; 369 NW2d 839 (1985); Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980); Stowers, supra. The plaintiff advances the argument that an employee has the right to have counsel present during a § 385 medical examination because the statute does not expressly preclude attorneys. This rationale ignores the obvious fact that the Legislature has expressly prescribed that an employee has the right to have a personal physician present. To extend the right of an employee to include the presence of an attorney merely because the statute does not expressly prohibit counsel would neutralize the effect of the entire § 385 sentence in question and render it nothing more than surplusage. This is a conclusion that may only be reached when we are presented with a strong countervailing legislative implication, and that is not the case here. Finally, the plaintiff argues that medical examinations conducted pursuant to § 385 are inherently unfair because "[t]he physicians selected by the carriers for the employers are often the same physicians time after time and are well versed with the Workers’ Compensation laws and procedures.” However, given the current scheme of the wdca, we suggest that the appropriate remedy for this concern would be to impeach the credibility of the physician selected by the carrier through cross-examination. Additionally, an attorney would have "ample opportunity to challenge the use made of the information obtained by the examination when the findings are presented as evidence in court.” Barnet, Compulsory medical examinations under the federal rules, 41 Va LR 1059, 1074 (1955). The process and procedure of the wdca is to be as summary as possible, MCL 418.853; MSA 17.237(853). Section 385 is designed as a fact-finding process by which an employer or its carrier can gather medical information relevant to an injury sustained by an employee. The very presence of a lawyer for the examined party injects a partisan character into what should otherwise be an objective inquiry. Warrick v Brode, 46 FRD 427 (1969). Furthermore, we believe that the presence of an attorney at a § 385 examination would tend to promote an adversarial environment even before litigation has begun, thereby defeating the summary nature of workers’ compensation proceedings. Since the enactment of the Workers’ Disability Compensation Act of 1969, the Legislature has not exercised its prerogative to alter or modify the language of the statute which provides an employee with the right to have a personal physician present during a physical examination conducted pursuant to § 385. As such, it is beyond the power of this Court to add to the express language of the statute through judicial pronouncement. Tews, su pra at 468-469, We find that the maxim expressio est unius exclusio alterius, as well as the fundamental rule of construction that every word in a statute should be given meaning and no word should be treated as surplusage if at all possible, are applicable to the question before us today. Therefore, we determine that the legislative intent of § 385 is to limit the right of an employee to the presence of a personal physician during an examination requested by an employer, Thus, we conclude that §385 does not grant an employee the right to have counsel present during a physical examination requested by the employer. III. CONCLUSION Section 385 provides a procedure which allows an employer or its carrier to conduct a physical examination of an injured employee. The statute is clear in that it provides an employee with the right to have a personal physician present at the examination. To extend the effect of § 385 beyond the language of the statute would breach the rules of statutory construction, as well as the summary spirit of the wdca. We acknowledge that the wdca should be applied liberally in favor of an injured employee inasmuch as it is remedial in character. 81 Am Jur 2d, Workmen’s Compensation, § 28, p 722. However, reasonable limitations should be placed upon the rule of liberal construction so as not to "evade the plain intent or to deny the clear mandate of the statute, nor should the operation of the law be stretched by any extravagant principle of inclusion.” Id. at 724. "Where the language used is so plain as to leave no room for construction, the court should not read into the enactment words that are not found therein either by express inclusion or by fair implication.” Id., § 29, p 725. We agree with the lead opinion of the wcab that the "[defendant's ability to defend the case is seriously compromised as to any medical issues [by plaintiff’s refusal to submit to the defendant’s requested examination], and 385 is very clear that plaintiff shall submit to medical examinations arranged by defendant.” (Emphasis in original.) We hold that an employee does not have the right to have counsel present during a physical examination requested by an employer or its carrier pursuant to § 385. Consequently, we find as moot the second issue regarding the audio recordings of the examination. Accordingly, we reverse the decision of the Court of Appeals. Brickley and Griffin, JJ., concurred with Riley, C.J. MCL 418.385; MSA 17.237(385). MCL 418.101 et seq.; MSA 17.237(101) et seq. The order of this Court granting the application for leave to appeal provides in relevant part: On order of the Court, the application for leave to appeal is considered, and it is granted limited to the issues (a) whether plaintiff’s counsel has a right to be present at a physical examination requested by the employer or the carrier pursuant to MCL 418.385; MSA 17.237(385), and (b) if so, whether plaintiff’s counsel may make an audio recording of the examination. [Emphasis added.] 1986 WCABO 43. Order of the Court of Appeals, dated May 1, 1986 (Docket No. 90983). Unpublished order of the wcab, No 392, decided May 28,1987. 433 Mich 881 (1989). MCL 600.1445(1); MSA 27A.1445(1) provides: Whenever in any proceedings before any court, board or commission, or other public body or officer, an order is made by such court, board or commission, or other public body or officer, requiring and commanding that a person shall submit to a physical examination, the order shall also provide that the attorney for such person may be present at such physical examination if the party to such examination desires that an attorney representing him be present. Preamble to the Revised Judicature Act, 1961 PA 236. MCL 418.865; MSA 17.237(865) provides: The bureau may appoint a duly qualified impartial physician to examine the injured employee and to report. The fee for this service shall be $5.00 and traveling expenses, but the bureau may allow additional reasonable amounts in extraordinary cases. 2A Sands, supra, § 47.23, p 194 provides in part: [Expressio unius est exclusio alterius] is applied to statutory-interpretation, where a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions. "When what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions, that mode must be followed and none other, and such parties only may act.” The method prescribed in a statute for enforcing the rights provided in it is likewise presumed to be exclusive. This rule [expressio unius est exclusio alterius] is well recognized in Michigan. ... It is particularly applicable to the construction of statutes, such as the workers’ compensation act, which are in derogation of the common law. [Revard, supra at 95.] See also Brown v Eller Outdoor Advertising Co, 139 Mich App 7, 13-14; 360 NW2d 322 (1984), lv den 424 Mich 902 (1986). In Brown, the Court reviewed with approval the reasoning of the wcab when it applied the maxim expressio unius est exclusio alterius to determine that the express mention of weekly compensation benefits in § 801(5) of the wdca, MCL 418.801(5); MSA 17.237(801X5), implies the exclusion of other types of benefits. In interpreting § 862 of the wdca, MCL 418.862; MSA 17.237(862), this Court held that when the language used in a statute is clear, the Legislature must have intended the meaning it has plainly expressed, and the statute must be enforced as written. Hiltz v Phil’s Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983). In Storey v Meijer, Inc, 431 Mich 368, 376; 429 NW2d 169 (1988), we held that when the language of a statute is clear and unambiguous, no further interpretation is necessary. If we were to accept this argument, the next question would have to be, "Then why did the Legislature include within § 385 the sentence '[t]he employee shall have the right to have a physician pro vided and paid for by himself or herself present at the examination?’ ” The employee shall have the right to have a physician provided and paid for by himself or herself present at the examination. [MCL 418.385; MSA 17.237(385).] We note that the plaintiff and the amicus curiae in support of the plaintiff claim that the interpretation of § 385 advanced by the defendants violates art 1, § 13 of the Michigan Constitution, which provides, "[a] suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney.” We disagree. Such an interpretation does not preclude the plaintiff from having an attorney prosecute a suit. It merely means that an employee does not have the right to have an attorney present during an examination conducted pursuant to § 385. In fact, § 385 specifically provides for the involvement of an employee’s attorney. The statute provides that a report of the physical examination made by the defendant’s physician shall be furnished to the employee’s attorney within fifteen days of a request, and that any physician who makes or is present at any such examination may be required to testify under oath as to its results. The presence of an attorney during a § 385 medical examination may result in the disqualification of the attorney pursuant to the Michigan Rules of Professional Conduct. "When an attorney observes the examination of his client, he creates the possibility that he may have to impeach the examining physician through his own testimony.” McDaniel v Toledo, P & W R Co, 97 FRD 525 (1983). Should this situation arise, it would violate MRPC 3.7(a) which provides, "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . . .” 2A Sands, supra, § 57.10, p 664 provides, "[w]here a statute pants authority to do a thing and prescribes the manner of doing it, the rule is clear that the provision as to the manner of doing the thing is mandatory, even though the doing of it in the first place is discretion- "The courts should recognize limitations on their powers in interpreting statutes. They should recognize that the legislature is supreme and must be followed to the extent that it has passed laws which are clear and constitutional. The courts do not have the right to say: 'This is what the statute states, but we do not like it and hence will not follow it.’ ” [3 Sands, Sutherland Statutory Construction (4th ed), p 821, reprinted from Johnstone, An evaluation of the rules of statutory interpretation, 3 U Kan L R 1, 8 (1954).] See n 6. In the event that plaintiff submits to the medical examination requested by the defendants, further action would not be barred by the doctrine of res judicata because there has been no decision on the merits of the case. Gose v Monroe Auto Equipment Co, 409 Mich 147; 294 NW2d 165 (1980).

AFTER REMAND Boyle, J. The issue raised in this case is whether People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), precludes cross-examination regarding a prior statement, including omissions, to a police officer. In People v Cetlinski the Court of Appeals held on initial appeal that the Fifth Amendment precluded asking the defendant during cross-examination why he had not told investigating officers, in the course of prearrest voluntary conversations with them regarding the fire, that he had had a conversation with his waitress and that the wait ress had suggested the idea of burning Cetlinski’s business. The court reversed the defendant’s conviction. After our decision in People v Collier, 426 Mich 23; 393 NW2d 346 (1986), we remanded the case to the Court of Appeals for reconsideration in light of that decision. On remand, the Court of Appeals adhered to its previous position, again concluding that Bobo required reversal and opining that Collier was inapplicable. Despite the fact that over the years the issue whether Bobo correctly construes the requirement of the Fifth Amendment and if not, whether the Michigan Constitution requires a higher standard has spawned a degree of conflict and confusion in the Court of Appeals, and despite the fact that the precise issue before us has produced a conflict in the Court of Appeals with regard , to whether People v Collier or Bobo applies to prior inconsistent statements, Justice Levin asserts it is not necessary in this case to reach the Fifth Amendment issue or to address the due process requirements of the Fourteenth Amendment. In Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980), the United States Supreme Court held that the use of prearrest silence for impeachment purposes did not violate the Fifth Amendment. Moreover, regardless of whether this case involved a situation in which the defendant’s silence was used to impeach or one where the defendant made statements to the police, omitting some material facts, the critical events took place prearrest and pre-Miranda and thus there could be no due process claim that the state unfairly used defendant’s silence or omission against him at trial in violation of the implicit assurance in Miranda that silence will not be penalized. Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976). We hold that the use for impeachment purposes of a defendant’s prior statement, including omissions, given during contact with the police, prior to arrest or accusation, does not violate the defen dant’s constitutional rights as guaranteed under the Fifth and Fourteenth Amendments or the Michigan Constitution. Indeed, long before Jenkins v Anderson, the United States Supreme Court had held the Fifth Amendment was not violated by impeachment of a testifying defendant with voluntarily given prior inconsistent statements. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). The use of a defendant’s prearrest, preMiranda "statements” for impeachment purposes is one of relevancy, an evidentiary matter. The threshold inquiry is whether this evidence makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401. See Collier, supra, p 36. This analysis is consistent with the United States Supreme Court’s ruling in Jenkins. There the Court emphasized that [i]mpeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. . . . Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence, § 1042, p 1056 (Chadbourn rev 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence [or statements, including omissions] is so inconsistent with present statements that impeachment by reference to such silence [or statements] is probative [of defendant’s credibility]. [Id., pp 238-239.] The statement of a party opponent is defined as an oral or written assertion or nonverbal conduct, MRE 801(d)(2). For impeachment purposes, the failure to assert a material fact when formerly narrating on the matter now dealt with amounts to an assertion, or statement, of the nonexistence of the fact. Thus, as an evidentiary matter, omissions from an affirmative voluntary response to questions about the same subject matter testified to at trial do not constitute "silence.” Rather, they are "prior inconsistent statements,” and can be used to impeach testimony at trial in which the witness admitted the fact’s existence. As the Jenkins Court noted, the "[u]se of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts.” Id., p 238. As stated above, when an individual has not opted to remain silent, but has made affirmative responses to questions about the same subject matter testified to at trial, omissions from the statements do not constitute silence. The omission is nonverbal conduct that is to be considered an assertion of the nonexistence of the fact testified to at trial if a rational juror could draw an inference of inconsistency. To be sure, the witness may explain the omission by a desire not to implicate himself or because of a lapse of memory. Such explanations, however, do not remove the relevance of the inconsistency. On this record, however, the majority is persuaded that evidentiary error, if any, was not prejudicial to the defendant. Accordingly, we reverse the decision of the Court of Appeals and reinstate the defendant’s conviction. i On December 11, 1983, a fire destroyed a bar that the defendant owned and managed adjacent to the motel in which he and a woman companion lived. After almost six months of investigation, the defendant was charged with burning real property and burning insured property. At trial the expert fire investigator’s testimony revealed that the fire had been set intentionally by spreading kerosene throughout the bar. In addition, having found the bar locked at the time of the fire, the investigator concluded the fire was set by someone with a key to the bar. Only five people had keys to the bar, the defendant, his live-in girl friend and business partner, the bartender on duty that night, a friend who had borrowed defendant’s car, and a waitress. The waitress testified for the prosecution that about three months prior to the actual fire, the defendant and she had discussed burning down the bar, the details of how he wanted the fire to be set, and how defendant wanted the scene to appear to investigators. She also testified that defendant asked her if she knew anyone that would burn the bar and that he could pay $500 for the fire to be set after he received the insurance money. She stated that she told the defendant she would talk to her brother and that when she approached her brother about this he told her to stay out of it and to tell the defendant that it cost $5,000, more than defendant, wished to pay. When she relayed the message to defendant, she said he told her to forget it. When defendant Cetlinski took the stand, in exculpation on direct examination, he stated while looking at the jury that he had discussed burning the bar with the waitress "as a joke.” Further, he stated that it was she who first brought up the idea, that it was her idea to check on what the cost would be, and that after about a week she told defendant her brother said he knew someone who would burn the bar if the defendant wanted it done. Although stating he only had joked with the waitress about burning the bar, the defendant testified that he later discussed the conversation with his girl friend and business partner, and that he agreed with her that it would be wrong. He then stated that he told his girl friend that "[W]e’re going to go talk to [her] and tell her we don’t want it burned. I told her [the waitress] two or three days in a row I don’t want it burned .... I says, that’s it.” This testimony served not only to rebut the waitress’ testimony, but to suggest that she committed the arson and that defendant himself had nothing to do with the burning of the bar. Other proofs showed that she was one of four people who had keys to the bar and that she was present at the time of the fire. The defendant also described being awakened by the police at his motel room next to the bar on the night of the fire, and stated he answered what the Court of Appeals characterized as "general investigation questions” at that time, as well as at various times during the course of the investigation. It is undisputed that defendant gave generally exculpatory statements to the police during this period of time. During cross-examination, the defendant testified that after the waitress suggested she knew someone who could burn the bar and that it could be made to look like a robbery, he had had a second conversation with her about a week after the first one, and it was at that time that she talked about price. Then, after1 his testimony established the fact that after the fire the bar looked exactly as the waitress had testified that she and the defendant had discussed it should look, the prosecutor asked the following question: Q. Mr. Cetlinski, after the fire when you saw these things out there, why didn’t you tell the police about this conversation [the waitress] had had with you? A. Because it was just . . . Defense counsel objected and, after the jury was removed, moved for a mistrial on the basis that the prosecutor’s question infringed upon defendant’s constitutional right to refrain from incriminating himself. In response, the prosecutor argued that the defendant took the stand, testified, gave numerous voluntary statements to the police officers concerning the fire and its possible origin, and, thus, that the state had the right to inquire why defendant never told police about the conversation with the waitress. The trial judge recessed until the following morning and instructed the attorneys to research the law and that he would make a ruling at that time. The following day the court determined that on the basis of the fact that defendant talked freely to the police there was no issue of silence in the case and denied defense counsel’s motion for mistrial. The prosecutor was permitted to resume questioning: Q. Mr. Cetlinski, during the course of the investigation of this fire at your bar, you talked to the police officers a number of times; isn’t that correct? A. Yes. Q. Different officers at different times? A. Yes. Q. During any of the course [sic] of those conversations with those officers, did you ever mention to them this conversation you had with [the waitress]? A. No. Q. You didn’t tell them about that at all? A. No. Q. Why didn’t you tell them about that at all? A. I didn’t — I forgot about it. The prosecutor never again raised the issue with the defendant or any other witness, or made reference during closing argument to defendant’s failure to tell police of the conversation with his employee. Defense counsel argued during closing argument that the prosecutor’s question regarding the defendant’s failure to tell police about the conversation was unfair because there was no claim that defendant failed to answer all of the questions during the investigation or that he ever lied to anyone. Further, defense counsel noted that even if the waitress’ version of the conversation was correct “she had all kind [sic] of motivation [to lie] including her fight with [the defendant’s girl friend’s] son . . . .” At the conclusion of the four-day trial, the defendant was convicted by a jury of burning insured property, MCL 750.75; MSA 28.270. On March 7, 1985, the defendant was sentenced to five years probation, with the first year to be served in the Lenawee County Jail. On initial appeal, the Court of Appeals held that the cross-examination by the prosecutor regarding the defendant’s “pre-arrest” failure to tell the investigating officer, “at the scene” “immediately after he and [his companion] were awakened,” about his prior conversation violated "defendant’s constitutional right against self-incrimination” under the rule of Bobo. Although noting “Pobo had been appropriately limited and defined in recent decisions of this court ... in the light of subsequent decisions of the United States Supreme Court,” the panel concluded nonetheless that Bobo required reversal. After this Court held in Collier that impeachment with "prearrest silence” was not constitutionally precluded, Cetlinski was remanded to the Court of Appeals. On remand, the Court of Appeals again reversed on the basis of Bobo. It distinguished Collier on the ground that Collier was cross-examined regarding his failure to report to the police, prior to any contact with the police, a crime of which he had allegedly been the victim. The panel interpreted Collier only as limiting the Bobo holding "to those situations where the state seeks to impeach a defendant with his silence maintained during contact with police officers. Here, the prosecutor impeached defendant regarding his failure to report a robbery to the police. There was no questioning or mention of defendant’s silence at or after his contact with the police.” [Citing Collier, supra, p 31. Emphasis added.] Therefore, because "defendant [Cetlinski] was in contact with the police, and the police were ques tioning him during their investigation,” the panel concluded Collier did not require a different result in this case. Thus, the Court of Appeals, post-Collier, erroneously held that Bobo prevents impeachment of a testifying defendant with a prior inconsistent statement made voluntarily to the police prior to arrest and during general investigatory questioning. ii The decision in People v Cetlinski is evidence that this Court must respond to the issues the Court of Appeals has identified and the parties have briefed and argued, and speak to an issue which has been the subject of a sixteen-year effort by the trial and appellate judges of this state: to understand and apply this Court’s pronouncements in Bobo. Understanding and analysis of the Bobo issue requires that we initially explain the facts, holding, and dicta of Bobo, and that we then acknowledge federal authority which casts doubt on the Fifth Amendment rationale of that opinion. The Court in People v Bobo, supra, pp 359-361, opined that the Fifth Amendment of the United States Constitution precluded any reference to a defendant’s silence under any circumstances during a trial: We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. ”Nonutteranees” are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did. What concerned the parties and what prompted our grant of leave was the propriety of using the fact of defendant’s silence either as evidence of guilt or for the purpose of impeachment. Whether his [defendant’s] silence was prior to or at the time of arrest makes little difference — the defendant’s Fifth Amendment right to remain silent is constant. It is unimportant whether the accuser be a police officer or not. Manifestly whenever a person is stopped for interrogation by the police, whether technically under arrest or not, the Fifth Amendment guarantees that his silence may not be used against him. Although the factual context of the holding in Bobo was the prosecutor’s use of the defendant’s prearrest silence during contact with a police officer to impeach the defendant’s exculpatory testimony at trial, the Court of Appeals subsequently applied the rationale of Bobo to both pre- and postarrest silence, to substantive and impeachment use of "silence,” and to contact with police officers or citizens. This Court’s first consideration of the question whether the federal or the state constitution governs the permissible use of a criminal defendant’s silence came thirteen years after Bobo and after a substantial body of federal precedent had construed the Fifth Amendment. People v Collier, supra. In People v Collier, we held that neither the Fifth Amendment nor the Michigan Constitution precluded the use of prearrest silence for impeachment purposes. The Court recognized that the United States Supreme Court had held that the Fifth Amendment did not preclude cross-examination of a testifying defendant with prearrest silence, Jenkins v Anderson, supra, and declined to find a violation of either due process or self-incrimination protection under the Michigan Constitution: For us to find that this case invokes the Michigan Constitution would require us to differ with the Jenkins majority’s analysis in a prearrest silence impeachment situation involving a factual setting less favorable to the defendant than that in Jenkins. Not only is there no federal Fifth Amendment precedent for such a finding, we are also aware of no other state that has taken such a step in the interpretation of its own self-incrimination provision. We have been offered no satisfactory arguments why we should be the first to use our own constitution to so enlarge upon existing Fifth Amendment jurisprudence. We conclude that to the extent Bobo is viable it is confined to impeachment for and comment on silence at the time of arrest in the face of accusation. [Collier, supra, pp 38-39. Emphasis added.] In Collier, we concluded that the issue of prearrest silence is one of relevancy and that the Court of Appeals had erroneously construed Bobo. However, while our holding in Collier limited Bobo to impeachment for and comment on silence at the time of arrest in the face of accusation, this Court did not overrule Bobo, but rather found Bobo inapplicable on the facts. Thus, a continuing question exists with regard to whether Bobo is to be understood and applied consistent with intervening developments in Fifth and Fourteenth Amendment jurisprudence. Indeed, confusion regarding this question may actually have increased since Collier. Prior to Collier, a substantial number of panels of the Court of Appeals had recognized a distinction between the use of silence for impeachment and impeachment with prior prearrest statements inconsistent with trial testimony, and held that Bobo was inapplicable to prearrest statements. The Court of Appeals panel in the case at bar characterized the prosecutor’s reference to defendant’s prior pretrial statements, including omissions, as Bobo "silence” and thus is convincing contemporary evidence of the need for further clarification of this area of the law. hi People v Cetlinski is the only case before us in which this Court has asked the Court of Appeals to redetermine the admissibility of a defendant’s statements, including omissions, in light of the limitation of Bobo set forth in People v Collier. The Court of Appeals reversed the defendant’s conviction on the basis of its finding that the use at trial of the defendant’s prearrest, pre-Miranda "silence” for impeachment purposes was improper under the rule of Bobo. At the outset, it must be recognized that the Court of Appeals erred in characterizing and analyzing the issue under a constitutional approach. As stated above, there was no constitutional error. The issue involved is cross-examination designed to test the veracity of in-court assertions by comparison with out-of-court statements, including omissions, and is properly analyzed under an evidentiary approach only. Because the broad Bobo rationale arguably supports the Court of Appeals mischaracterization of the question, we again observe, as we did in Collier, supra, that, in light of both pre- and post-Bobo decisions of the United States Supreme Court, it is clear that the Fifth Amendment rationale no longer supports the Bobo rationale. Thus, no error of federal constitutional law occurred. Because the Court of Appeals finding of error under Bobo is sustainable only if the Michigan Constitution requires a higher standard, we also address that issue. Consistent with our rationale in Collier, we conclude that an evidentiary approach to the use of a defendant’s prearrest, pre-Miranda statements, including omissions, will adequately protect the policy interest in foreclosing the factfinder from unfair inferences of guilt. We therefore construe Bobo as being coextensive with the Fifth Amendment of the United States Constitution and the due process analysis of Doyle v Ohio, 426 US 610; 96 S Ct 2240; 49 L Ed 2d 91 (1976). The use of a defendant’s silence during contact with the police that does not occur "at the time of arrest in the face of accusation,” Collier, p 39, for impeachment purposes does not violate the Fifth Amendment or the Michigan Constitution. People v Collier adopted the evidentiary rule that nonverbal conduct by a defendant, a failure to come forward, is relevant and probative for impeachment purposes when the court determines that it would have been "natural” for the person to have come forward with the exculpatory information under the circumstances. Because a defendant has no duty to come forward, the Court observed that his failure to do so was so ambiguous that it did not in and of itself allow a trial judge to conclude that it amounted to an assertion of the nonexistence of the fact testified to. Thus, where the prosecutor’s theory of impeachment is that the defendant is not telling the truth because he did not come forward and offer what he now testifies to, we held that a trial court properly permits impeachment if it would have been natural and expected for the defendant to come forward with the story he relates during trial. In doing so, we necessarily concluded that the mere failure to come forward did not permit a rational juror to draw an inference as to credibility. We also necessarily recognized that nonverbal conduct, the failure to come forward, could be conduct inconsistent with trial testimony. The issue in this case concerns the permissibility of cross-examination about defendant’s statements, including omissions, in light of the fact that the defendant voluntarily gave those statements to the police during a six-month investigation. A majority of the justices are persuaded that the record is insufficient to permit us to determine whether there was evidentiary error because the record was developed pre-Collier and thus failed to address factors later made critical under the evidentiary analysis enunciated in Collier. Therefore, we might remand for development of an evidentiary record were we not also persuaded that error, if any, was not prejudicial to the defendant. The jury had before it both the waitress’ and Cetlinski’s version of their conversations about burning Cetlinski’s business. The challenged questioning by the prosecution played a very small role in the defendant’s trial, and the other evidence presented at trial was more than sufficient to allow the jury to find Cetlinski guilty beyond a reasonable doubt. Furthermore, it was only the defense counsel who raised the issue of the defendant’s failure to inform the police of these conversations in closing argument. Thus, we are persuaded error, if any, did not prejudice Cetlinski’s defense or affect the outcome in this case. Therefore, we reverse the judgment of the Court of Appeals and reinstate the defendant’s conviction. CONCLUSION The Court of Appeals erred in concluding that the Fifth Amendment precluded the cross-exami nation of the defendant and, on the basis of that conclusion, in reversing the defendant’s conviction. The prosecutor did not ask the jury to infer guilt from the defendant’s silence. Thus, the prosecutor’s cross-examination did not violate this defendant’s right not to incriminate himself as guaranteed under the Fifth Amendment. Construing Bobo’s constitutional foundation as coextensive with federal law, the use at trial of a defendant’s prearrest, pre-Miranda statement for impeachment purposes was permissible under the federal and Michigan Constitutions. Finally, although the defendant objected to the impeachment use of his prearrest, pre-Miranda statements on constitutional ground, but not on an evidentiary basis, error, if any, was not prejudicial to the defendant. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the defendant’s conviction. Riley, C.J., and Brickley and Griffin, JJ., concurred with Boyle, J. This Court cannot avoid addressing this issue by concluding as Justice Levin does that the error did not prejudice the defendant’s defense. Post, p 764. People v Cetlinski, unpublished opinion of the Court of Appeals, decided May 19,1986 (Docket No. 83585). People v Cetlinski, 428 Mich 861 (1987). People v Cetlinski (On Remand), unpublished opinion per curiam of the Court of Appeals, decided June 8,1987 (Docket No. 98518). This includes each Court of Appeals panel in the instant case and the companion cases, that concluded a reversal was dictated by the rationale in Bobo. People v McReavy, unpublished opinion per curiam of the Court of Appeals, decided January 14, 1987 (Docket No. 88620); People v Sutton, unpublished opinion per curiam of the Court of Appeals, decided April 24,1986 (Docket No. 81069). People v Wigfall, 160 Mich App 765; 408 NW2d 551 (1987). If the Court of Appeals had based its decision on a subsidiary finding that the defendant had been given Miranda (v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 [1966]) warnings, which it clearly did not, a finding of a violation of the Fifth Amendment would still be incorrect under federal law. Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (per curiam). Miranda, n 7 supra. Justice Levin argues that the record is unclear whether Cetlinski received Miranda warnings during his various conversations with law enforcement personnel. Absent a factual finding whether the warnings were given and if so, when defendant received them, he asserts there cannot be an accurate determination whether the impeachment use of Cetlinski’s prearrest silence violated the Due Process Clause. However, in Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982), the United States Supreme Court made such a determination in a postarrest situation, holding that there was no due process violation in the prosecutor’s use of a defendant’s postarrest silence for impeachment purposes, and clarifying that Doyle is applicable only if the issue involves post-Miranda silence. The Fletcher Court did not base its decision on a factual finding that Miranda warnings were not given. Rather it stated that the record was unclear whether the defendant had received such warnings and noted that "[t]he significant difference between the present case and Doyle is that the record does not indicate that respondent Weir received any Miranda warnings during the period in which he remained silent immediately after his arrest.” Id., p 605. In Doyle, the Court held the impeachment use of a defendant’s post-Miranda silence violated the Due Process Clause because the defendant had relied on the implicit governmental assurance in the Miranda warnings that his silence would not be used against him. Absent evidence of Miranda warnings in the record, there simply is no Doyle error. This was true in Fletcher and is true in Cetlinski also. Justice Levin’s statement that such factual findings should precede a determination of whether the cross-examination violates the Due Process Clause is simply incorrect. (Post, pp 769-770.) Consequently, this defendant’s conviction cannot be reversed unless the court determines whether there was an evidentiary error and if so, whether the admission of the evidence constituted a "miscarriage of justice.” MCL 769.26; MSA 28.1096. See 3 Weinstein & Berger, Evidence, ¶ 607[06], pp 607-97 to 607-98. See also 3A Wigmore, Evidence (Chadbourn rev), § 1042, pp 1056-1058. As the United States Supreme Court said in Anderson v Charles, 447 US 404, 409; 100 S Ct 2180; 65 L Ed 2d 222 (1980), "[e]ach of two inconsistent descriptions of events may be said to involve 'silence’ insofar as it omits facts included in the other version [but] [t]he questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.” Moreover, this Court itself has unanimously recognized the rule in Anderson as a proper interpretation of our own rules of evidence. In People v Cole, 411 Mich 483; 307 NW2d 687 (1981), we held that cross-examination of the defendant with regard to her failure to include certain details in a prior inconsistent statement was permissible under the Michigan Rules of Evidence. This Court found the Cole situation was similar to that confronted by the United States Supreme Court in Anderson v Charles, supra, and noted that " 'cross-examination that merely inquires into prior inconsistent statements . . . makes no unfair use of silence .... As to the subject matter of his statements, the defendant has not remained silent at all.’ ” Cole, p 488. (Emphasis added.) See also 3 Weinstein & Berger, Evidence, ¶ 607[06], p 607-101: The approach of relying during cross-examination on a failure of a witness to tell all the details of his observations at a preliminary interview or proceeding is often used by defense counsel .... [Id.] The witness also stated that a couple times after that the defendant again told her to forget it and that she had assured him it was forgotten. The defendant testified that right after the waitress began working for him, one day when the two of them were by themselves in the bar, she suggested that she call someone and check on the possibility of having someone burn the bar. The defendant was not under arrest, nor was there any claim that he was the focus of the investigation. The defendant made no objection that there was an insufficient foundation to determine whether there was an inconsistency between the contents of the prior statements and defendant’s trial testimony. Defense counsel never requested any special instruction regarding the questioning and testimony of the defendant concerning his failure to mention the conversation with the employee to the police. The Court found this language of Bobo literally required such a conclusion: We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. "Nonutterances” are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did. Whether his silence was prior to or at the time of arrest makes little difference — the defendant’s Fiñh Amendment right to remain silent is constant. [Bobo, supra, pp 359-360. Emphasis added.] The panel believed that none of the decisions limiting the rule of Bobo were applicable to the present case. See, e.g., People v Karam, 106 Mich App 383; 308 NW2d 220 (1981), lv den 414 Mich 870 (1982); People v Lane, 127 Mich App 663; 339 NW2d 552 (1983). Justice Levin’s opinion fails to acknowledge this primary reliance on the Fifth Amendment, thus permitting or suggesting the clearly incorrect theory that Bobo allows an evidentiary analysis of the relevancy of a witness’ failure to make certain statements. People v Ray, 119 Mich App 724; 326 NW2d 622 (1982); People v Hoshowski, 108 Mich App 321; 310 NW2d 228 (1981); People v Wade, 93 Mich App 735; 287 NW2d 268 (1979). During this period, the Court of Appeals had issued in excess of eighty published opinions involving the Bobo issue, all without guidance from this Court. Compare People v Cetlinski (On Remand), n 4 supra, with People v Wigfall, n 6 supra, p 780, in which the Court of Appeals held that in the absence of further guidance from this Court, "we deem it appropriate to look to the United States Supreme Court for guidance.” People v Wells, 102 Mich App 558; 302 NW2d 232 (1980), lv den 417 Mich 916 (1983); People v Fortuin, 143 Mich App 279; 372 NW2d 530 (1985); People v Gant, 55 Mich App 510; 222 NW2d 784 (1974). People v Cetlinski, 429 Mich 858 (1987). Contrary to the finding by the Court of Appeals on initial appeal, the questioning by the prosecutor was not limited to the time period immediately after defendant was awakened by the police the night of the fire. On remand, the Court of Appeals held that Bobo precludes impeachment with silence during a prearrest investigation by the police. However, we clearly had stated in Collier, supra, p 39, that Bobo "is confined to impeachment for and comment on silence at the time of arrest in the face of accusation.” Because the Fifth Amendment would permit impeachment and comment, the Court of Appeals finding of error can only be sustained if Bobo rests on an independent state constitutional ground. This Court has emphasized a receptivity to independent examination of the meaning of our own constitution. That inquiry invites, at a minimum, public policy reasons or prior decisions of this Court which would require a different interpretation. See Paramount Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984); People v Nash, 418 Mich 196; 341 NW2d 439 (1983). However, to the extent that Bobo was based upon an understanding of the Fifth Amendment in excess of the now clearly defined constitutional standard, "[W]e decline to now convert our past misunderstandings of Miranda into an interpretation of that provision.” People v Hill, 429 Mich 382, 392; 415 NW2d 193 (1987). To the extent Bobo was based on this Court’s ruling in People v Bigge, 288 Mich 417; 285 NW 5 (1939), we find that that case has no application to the facts of the instant case. See n 35, p 763. In regard to the issue whether defendant’s rights guaranteed under the Fourteenth Amendment were violated, Justice Levin’s discussion of Doyle, supra, is curious, given the fact that this defendant has never asserted, nor does the record support such a finding, that the prosecutor cross-examined the defendant about his failure to tell the police about the conversation with his employee after he was given Miranda warnings. There has never been a suggestion or a finding that the "silence at issue” (that is, the omission of the defendant’s conversation with Rodriquez from his conversations with the police) occurred after receipt of Miranda warnings. See n 9. As a general rule of evidence, prior silence of a witness with regard to a fact to which he has testified, where such silence occurs under circumstances in which he would be expected to speak out, may be used to impeach during cross-examination. 3A Wigmore, Evidence (Chadboum rev), § 1042, p 1056. Jenkins v Anderson, supra, p 240, established that the state may allow impeachment with prearrest silence without infringing upon federal constitutional rights, emphasizing "[e]ach jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial.” See also 3 Weinstein & Berger, Evidence, ¶ 607[06], p 607-99. With regard to this type of cross-examination, designed to shed light on the credibility of a defendant’s direct testimony, the test of relevancy is not whether the answer sought will prove the main issue, but whether it will be useful and aid the jury in appraising the credibility of the witness' and assess the probative value of the direct testimony. McCormick, Evidence (3d ed), § 29, p 63. A majority of the justices is persuaded that the record is insufficient to allow a comparison between in-court assertions and out-of-court statements under an evidentiary approach. Although we do not address the question whether it would have been "natural” for the defendant to mention the waitress’ conversation with him in the immediate wake of the fire, we note that the responding opinion continues to place undue focus on that time in its evidentiary analysis. This question must be considered in light of the fact that the prosecutor’s inquiry to the defendant was why he had not mentioned this version of the conversation during the numerous times he talked with different police officers at different times during the subsequent six-month investigation. Justice Levin finds that [o]n the present record, we would hold that Cetlinski’s failure to mention the conversation did not have probative value because it would not have been natural for Cetlinski to have volunteered the information. We would hold, in agreement with the Court of Appeals, that the prosecutor’s cross-examination was improper. [Post, p 781.] In contrast we find that on this record, we cannot decide whether there was Collier error. Therefore, the holding of People v Bigge, n 29, supra, where the Court found error requiring reversal in the use of a defendant’s silence as substantive evidence of his guilt, has no application to the circumstances of the present case. Id., p 430. In Bigge, this Court found that the prosecutor’s allegation during the opening statement that the unanswered allegation by another that the defendant was guilty of embezzlement was proof the defendant was guilty, was just as prejudicial to a defendant as testimony of a former plea of guilty would be on the trial of the case if the defendant had pleaded guilty and then changed his plea. Id., p 431.

Brickley, J. A joint team of federal and local law enforcement officers entered the defendant’s residence without a warrant or consent in October of 1986. Once inside, an officer conducted a pat-down search of the defendant and found approximately six ounces of cocaine. The officers remained in the residence while waiting for a magistrate to issue a search warrant. The warrant was issued some five hours later, and the officers conducted a search which additionally uncovered approximately thirty pounds of marijuana and numerous illegal firearms. This case presents the issue whether exigent circumstances justified the entry of the defendant’s residence without a warrant. More precisely, the Court must decide whether the risk of removal or destruction of evidence justified an entry and protective sweep-type search to secure the premises pending issuance of a warrant. We hold that exigent circumstances justified the police entry without a warrant. i This appeal arises out of the events of an undercover drug operation by agents and officers of the Drug Enforcement Agency (pea) and the South west Enforcement Team (swet). Testimony at the preliminary examination produced the following narrative. On October 21, 1986, at 3:45 p.m., dea Agent Gay and one Newbury (apparently a police informant) went to the residence of Gieber, the defendant’s alleged coconspirator, for the purpose of buying cocaine. The trio left Gieber’s residence in Agent Gay’s car. Gieber directed them to a nearby parking lot. Gieber told Gay that he had to make a phone call and ostensibly departed to do so. However, unknown to Gieber, a police surveillance team watched him walk instead a few blocks to the defendant’s residence. The surveillance team also saw Gieber leave the residence in the company of the defendant. Gieber then returned alone to the parking lot where Agent Gay waited. Agent Gay testified that Gieber returned really excited. [Gieber] told me he had just seen a pound and a half of cocaine. It was the best cocaine he had seen in a long time. In fact, [Gieber] described it as crystalline cocaine; it was kind of winking at him; it was kind of hard for him to leave. The group drove to another location nearby, where Agent Gay handed Gieber $2,400 in premarked cash and directed him to purchase an ounce of cocaine. Gieber again departed. Once again, agents on surveillance observed Gieber walk to the defendant’s residence and return to Agent Gay’s car. Gieber handed Gay a package containing a solid white substance. Later, a police labora tory analysis revealed that this package contained approximately one ounce of ninety-four percent pure cocaine. Agent Gay and Gieber discussed purchasing an additional ounce of cocaine at a later time. However, Gay testified that Gieber told me that he couldn’t guarantee it. If I didn’t get the second ounce today, he couldn’t guarantee I’d get it tomorrow. [Gieber] was sure by the end of the afternoon it would be gone [because the cocaine] was a good product. It was going out fast. Agent Gay took Gieber home about 4:45 p.m. He then immediately met with his superiors in charge of the operation. They quickly discussed a course of action. In order to prevent the evidence from being removed or destroyed, the superiors decided to "impound” the defendant’s residence from the inside. The law enforcement officers asserted two primary reasons for their decision to impound the residence. First, the officers had observed vehicular and pedestrian traffic to the residence: [D]uring the two separate times that [Gieber] had gone to the house, we saw people come and go on foot and in vehicles. When we went back the second time, a different vehicle was parked in the driveway that wasn’t there during the first time. Our concern was to . . . secure the premises, and get a search warrant. The vehicular traffic to the residence was of special concern to the officers because [i]mmediately preceding our attempts to secure [the residence], we were also aware that there were vehicles at the residence at that time, which had been the subject of earlier surveillance by the team . . . with respect to narcotics distribution here in Three Rivers, and there were a number of people in the residence. Second, the officers feared that on the basis of Gieber’s statement that the cocaine was "going fast,” any delay in obtaining a search warrant would result in the removal of illegal narcotics and the marked money given to Gieber for the initial drug purchase. [I]f we took the time to go, go ahead and get the search warrant, as we did — it took five hours as it is — we didn’t believe the cocaine would still be there five hours later. The officers thus decided "[t]o secure the house and the people in there, so the evidence wasn’t destroyed, so the money wasn’t removed, and then at that point [we] would go get a search warrant.” Thus, numerous officers entered the defendant’s residence at approximately 5:30 p.m., confronting the defendant’s preteen daughter upstairs and escorting her downstairs. The testimony did not reveal which officer first confronted the defendant. However, Officer Orr testified that he encountered the defendant already lying prone on the floor, apparently in custody with four other men. Officer Orr testified that Mr. Blasius lay within an arm’s reach of a gun cabinet which contained an Uzi automatic rifle. Officer Orr patted down the defendant and detected what he described as "a large solid object behind the zipper area of his pants, below the belt . . . [i]t felt to me to be a small handgun.” Officer Orr then reached inside defendant’s pants and removed a plastic baggy containing a solid white substance. Police technicians later analyzed this substance and found it to comprise approximately six-and-one-half ounces (182 grams) of ninety-four percent pure cocaine. The police also discovered on the defendant’s person $2,100 of the $2,400 in premarked cash given to Gieber. The police arrested and removed the defendant. The officers waited in the residence with the defendant’s wife until they obtained a search warrant approximately five hours later. The officers explained that it took so many hours to obtain the warrant because we were initially prepared to go somewhere else and to do something else than we ended up doing [that evening]. . . . [T]here was a joint investigative activity between [swet and the dea], and it did take our putting together information from different people who were at different places at different times, and that complicated . . . the construction of the search warrant. The officers searched the residence for about five hours after the issuance of the warrant, and discovered approximately thirty pounds of marijuana and numerous illegal firearms. The people charged the defendant with the following six felonies: (1) possession with intent to deliver more than fifty grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), (2) conspiracy to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), (3) delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), (4) possession with intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), (5) possession of a short-barreled rifle, MCL 750.224b; MSA 28.421(2), and (6) possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). ii The Third District Court, Second Division, conducted the defendant’s preliminary examination in December of 1986. At its conclusion, the magistrate suppressed the fruits of the search and dismissed all counts against the defendant. The magistrate ultimately concluded that exigent circumstances did not justify the entry without a warrant. He issued a wide-ranging opinion that roundly criticized both the exclusionary rule and the inefficiencies of Michigan search warrant procedure. The magistrate then articulated three reasons for suppressing the seized evidence. First, he concluded that even though the police had probable cause to believe that the defendant possessed cocaine, the facts presented did not justify an immediate search without a warrant. He recognized that "there are exigent circumstances that can be developed for the entry into a home in the absence of a search warrant,” but decided that the instant case did not involve such circumstances. He concluded simply that "there must be something more than the possibility that evidence will not just be destroyed or evidence might be broken up.” (Emphasis supplied.) Second, the magistrate postulated that the police could have chosen alternatives less intrusive than an entry without a warrant: [While the police] might have found less [cocaine] on [Blasius] 6 hours later or might not have found any on him 6 hours later . . . they certainly had reasonable cause to stop anyone who left that house ... so they might have found a number of persons in possession who [could] give identity, namely testimony in exchange for immunity. Third, the magistrate flatly rejected the prosecution’s argument that exigent circumstances existed "to merely protect the quantity” of drugs the police might find in the residence. Similarly, the magistrate declined to find the removal or loss of the premarked "buy” money constituted an exigent circumstance. For these reasons the magistrate decided that "[t]o allow entry into a private home, even though everybody knows . . . that Mr. Blasius was selling drugs, with the protections that the Fifth [sic] Amendment gives us, is of course an illegal search . . . .” The circuit court disagreed on review. It reversed the magistrate’s suppression of evidence and dismissal of charges against the defendant. The court held that the magistrate’s refusal to find exigent circumstances constituted an abuse of discretion. It consequently reinstated all the charges and remanded the case for further proceedings. The circuit court analyzed the facts of the instant case in light of People v Oliver, 417 Mich 366, 384; 338 NW2d 167 (1983). In Oliver, this Court extracted seven factors relevant to an exigent circumstances determination from a federal case, Dorman v United States, 140 US App DC 313; 435 F2d 385 (1970). The circuit court concluded that "when all of the evidence and each one of these factors is analyzed, it is fair to conclude that several of these factors may be found to justify or conclude exigent circumstances existed, particularly in combination.” The Court of Appeals reversed the decision of the circuit court. The Court of Appeals enumerated what it described as "the six delineated exceptions [to the warrant requirement] adopted by this Court . . . .” The Court listed these exceptions as "(1) searches incident to lawful arrests; (2) automobile searches and seizures; (3) plain view doctrine; (4) consent; (5) stop and frisk type searches; and (6) hot pursuits.” The Court of Appeals concluded that the "entry by the police in this case does not fall within any of these six exceptions,” and opined that "[w]here exigent circumstances do not fall within the ambit of a recognized exception, warrantless entry and search are considered to be unreasonable in violation of the Michigan and United States Constitutions.” In the Court’s view, the "only exception [in this case] which could possibly apply would be that of a search incident to lawful arrest,” an exception the Court viewed as unavailable because "no arrest was made until well after the unlawful entry . . . since the police did not know whom to arrest at the time of the entry.” The Court consequently suppressed all the evidence seized at the defendant’s residence as tainted by the initial illegal entry by the police. iii The Court of Appeals erred in failing to recognize that the exigent circumstance of imminent removal or destruction of evidence may in itself constitute an exception to the Fourth Amendment’s warrant requirement. The United States Supreme Court has consistently interpreted the Fourth Amendment to prohibit residential searches without warrants unless justified by one of the few "specifically established and well-delineated exceptions” articulated by the Court. Coolidge v New Hampshire, 403 US 443, 455; 91 S Ct 2022; 29 L Ed 2d 564 (1971); see also Payton v New York, 445 US 573, 590; 100 S Ct 1371; 63 L Ed 2d 639 (1980). However, the Court has also often recognized that the risk of destruction or removal of evidence may constitute an exigent circumstance exception to the warrant requirement. While the precise contours of the exigent circumstances exception remain hazy, such an exception clearly does exist. The Court laid the foundation for an exigent circumstances exception to searches and seizures without warrants in Johnson v United States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948). In Johnson, an informant informed police officers that unknown persons were smoking opium at a hotel. The officers arrived and followed the smell of opium to the defendant’s room. After the suspect admitted the officers into the room, they searched it and arrested the defendant for possession of opium. The Court invalidated the search as illegal. In noting that a search for evidence without a warrant requires more than probable cause, the Supreme Court commented: The point of the Fourth Amendment ... is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and de tached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. [333 US 13-14.] The Court recognized that in certain cases, "exceptional circumstances” might justify a search without a warrant. However, except for "some slight delay necessary to prepare papers and present the evidence to a magistrate,” the police in Johnson failed to present such exceptional circumstances. The Court dismissed these as "never very convincing reasons . . . .” The Court concluded that exceptional circumstances did not exist because [n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction .... [333 US 15. Emphasis supplied.] The Court first used the term "exigent” in MacDonald v United States, 335 US 451, 456; 69 S Ct 191; 93 L Ed 153 (1948). The Court in MacDonald invalidated a search of the defendant’s residence for evidence of operating an illegal lottery. The police had forcibly entered the defendant’s residence after hearing an adding machine outside his window. The Court suppressed the evidence seized, reasoning, Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. [Id. Emphasis supplied.] In United States v Jeffers, 342 US 48, 52; 72 S Ct 93; 96 L Ed 59 (1951), the police entered the defendant’s hotel room and seized narcotics. The Court invalidated the search, noting that "[t]here was no question of violence, no movable vehicle was involved, nor was there an arrest or imminent destruction, removal, or concealment of the property intended to be seized.” 342 US 52 (emphasis supplied). The Court refused to find such exigencies, noting that the defendant was not fleeing or seeking to escape, "[n]or was the property in the process of destruction . . . .” 335 US 455. Schmerber v California, 384 US 757, 770; 86 S Ct 1826; 16 L Ed 2d 908 (1966), marked the first instance in which the Court upheld a search without a warrant to prevent the destruction of evidence. In Schmerber, the Court upheld the forced medical extraction of blood for a blood alcohol test from a defendant arrested for criminal drunk driving. The Court noted that "[s]earch warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required [concerning] intrusions into the human body . . . .” The Court nevertheless upheld the legality of the search because the arresting police officer might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circum stances, threatened ”the destruction of evidence” .... [Id. Emphasis supplied.][ ] Vale v Louisiana, 399 US 30; 90 S Ct 1969; 26 L Ed 2d 409 (1970), represents the case most frequently cited as establishing a destruction of evidence exception to the Fourth Amendment. In Vale, police officers with an arrest warrant for the defendant arranged surveillance of his house. The officers observed Vale participate in an apparent drug transaction on the street outside his house. When Vale became aware of the police presence and attempted to flee, the officers arrested him on the front steps of the house. The officers entered the house and informed Vale that they planned to search it. Vale’s mother and brother returned home at that time and the officers informed them of the arrest and impending search. The officers found heroin in a rear bedroom of the residence. The Supreme Court invalidated the search. First, it held that the search of the residence did not constitute a valid search incident to the arrest. Second, the allegation that suspects might easily remove or destroy narcotics could not independently support the search without a warrant, especially since no one occupied the house at the time of the search. Third, the prosecution did not meet its burden of showing the existence of exigent circumstances. The Court noted in this connection that "the goods ultimately seized were not in the process of destruction . . , [n]or were they about to be removed from the jurisdiction.” Id. at 35 (citations omitted, emphasis supplied). The summary, above illustrates that contrary to its pronouncements, the United States Supreme Court has hardly "carefully delineated” the contours of the exigent circumstances exception to the warrant requirement. It seems instead that the Court has suggested four varying indicia of exigent circumstances: the threatened destruction or removal of evidence, the imminent threat of destruction of evidence, evidence in the process of destruction, and a "realistic expectation” that evidence might be destroyed. Given these amorphous standards of exigency, it does not seem at all surprising that the federal circuit courts have produced divergent determinations of the degree of exigency required to support residential searches without warrants. An analysis of federal circuit court cases involving exigent circumstances supports the proposition that "[t]he circuit courts are in disarray on the justification necessary to permit warrantless actions to prevent destruction of evidence.” All the federal circuits acknowledge that the risk of removal or destruction of evidence may justify an entry without a warrant by the police under the exigent circumstances exception. However, none of the circuits have accepted the restrictive "evidence ... in the process of destruction” for muía Vale suggested as controlling. Instead, the federal circuits "have been inclined to state [the destruction or removal of evidence] exception in much broader terms, such as a 'great likelihood that the evidence will be destroyed or removed before a warrant can be obtained,’ that the evidence is 'threatened with imminent removal or destruction,’ or that the police 'reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.’ ” The federal circuit courts’ divergence on the appropriate standard of exigency in destruction or removal cases arguably has resulted in the unfortunate situation in which "the outcome of a case [involving exigent circumstances may depend] on the circuit in which it is pending.” Selective (or creative) citation of federal circuit court authority may thus support contradictory positions on the degree of exigency justifying evidence of searches without warrants in cases involving exigent circumstances. Furthermore, additional confusion may result when a court fails to differentiate exigent circumstances involving entries without warrants to effectuate an arrest from exigent circumstances involving prevention of the destruction or removal of evidence. The circuit court in this case inadvertently compounded the magistrate’s fact finding and analysis by failing to make such a differentiation. The St. Joseph Circuit Court relied on a decision which incorporated factors from one of the first federal circuit cases to analyze exigent circumstances, Dorman v United States, supra. Unfortu nately, Dorman had nothing to do with the risk of destruction or removal of evidence. Rather, in Dorman, the police faced the dilemma of waiting to obtain a warrant or acting immediately to enter a residence to arrest a suspect who might have escaped. The Dorman court, before concluding that the risk of escape justified the arrest without a warrant, outlined the following factors relevant to determining the existence of exigent circumstances: (1) whether the case involves a serious offense, (2) whether the police believe the suspect is armed, (3) a strong showing of probable cause, (4) a strong belief that the suspect is on the premises, (5) probability that the suspect will escape, (6) whether the police enter forcibly or peacefully, and (7) whether the police enter at night. Id. at 320-321. These factors (at best) provide guidance in cases of arrests without warrants. However, the Dorman factors provide only marginal guidance for determining whether police may conduct an entry without a warrant to secure the premises to prevent the destruction of evidence. Some of the Dorman factors, such as whether the suspect is armed or might escape, have little bearing on whether a suspect will destroy or remove evidence. Other factors, such as strong probable cause of an offense, the seriousness of the offense, and the manner and timing of the police entry, while highly relevant in determining the overall reasonableness of police conduct, do not address the threshold issue of the risk of destruction or removal of evidence. In contrast to Dorman, United States v Rubin, 474 F2d 262, 267 (CA 3, 1973), represents a thoughtful and more useful explication of the factors relevant to determining when the risk of loss or destruction of evidence justifies a residential search without a warrant. In Rubin, undercover police officers tracked a crated shipment of hashish from an airport. The officers watched a codefendant take the crate to the defendant’s home. The codefendant left Rubin’s residence without the crate. The police trailed the codefendant’s car. They stopped the car and arrested the co-defendant after he began driving evasively. The codefendant yelled out, " 'Call my brother’ ” to a crowd of spectators watching the arrest. The police feared this outburst would alert suspects in the residence of the investigation. They stormed Rubin’s residence and seized hashish. Id. at 269. The Rubin court surveyed the Supreme Court cases on exigent circumstances in its opinion validating the search. The Rubin court recognized that "each of these cases speaks of the high standards of exigency which must be present to justify warrantless searches . . . .” Id. at 266. Nevertheless, the court rejected the proposition that "these cases allow emergency 'justification’ only when the searching officers have knowledge that evidence is actually being removed or destroyed.” Id. The Rubin court discounted the significance of the "evidence in the process of destruction” stan dard suggested by the Supreme Court in Vale, commenting that [although [Vale’s evidence in the process of destruction language] might suggest that the emergency exception must be construed to require knowledge that the evidence is actually being removed or destroyed, the omission of a single word [threatened] should not be given such significance, especially in light of the facts in Vale. [Id. at 267.] The Rubin court held that a residential search without a warrant requires two justifications: probable cause that an offense has been committed, and a reasonable conclusion by the police "that the evidence will be destroyed or removed before [the police] can secure a search warrant . . . .” Id. at 268. The court outlined five factors relevant to assessing the reasonableness of the officer’s conclusion that exigent circumstances exist: (1) [T]he degree of urgency involved and the amount of time necessary to obtain a warrant, (2) [The] reasonable belief that the contraband is about to be removed, (3) [T]he possibility of danger to the police officers guarding the site of the contraband while a search warrant is sought, (4) [[Information indicating the possessors of contraband are aware that the police are on their trail, (5) [T]he ready destructibility of the contraband and the knowledge "that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.” [Id. Citations omitted.] This Court has examined the exigent circumstances exception much less frequently than the federal courts and has never proffered the kind of detailed analysis expounded in Rubin. In People v Oliver, supra, this Court held that a motel room itself does not create an exigent circumstance that would justify an entry without a warrant by police to arrest a suspect in the room. As noted earlier, this Court extrapolated the Dorman factors to determine whether exigent circumstances existed. We commented in Oliver that the risk that a suspect might destroy evidence could comprise an exigent circumstances exception to the warrant requirement. However, we noted that no such exception applied under the facts presented because "there was no reason [for the police] to believe that defendant was about to destroy evidence . . . .” 417 Mich 385. In an administrative search case, People v Tyler, 399 Mich 564; 250 NW2d 467 (1977), aff’d sub nom Michigan v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978), this Court recognized that "searches [without warrants] are an exception, justified only by exceptional circumstances . . . .” 399 Mich 584. The Court commented in passing that [i]f there are exigent circumstances, such as reason to believe that the destruction of evidence is imminent ... no warrant is required .... [Id. at 578.][ ] IV The sparse analysis available from this Court and the apparent confusion of the courts below in analyzing this case illustrate the need for us to articulate some standards to determine when exigent circumstances exist justifying an entry and search without a warrant. The need for concrete standards for determining when exigent circumstances exist seems vital both to protect the rights of individuals against unreasonable searches and seizures and to guide courts and law enforcement officers. The invasion of the home, in particular, by unreasonable searches constitutes "the chief evil” which our constitution sought to prevent. For this reason it is vital that courts critically evaluate police assertions of exigent circumstances as a justification for entering a residence without a warrant. We suggest the following criteria to guide the lower courts in assessing exigent circumstances in removal or destruction of evidence cases. First, the police may of course undertake no nonconsensual residential search or seizure without a showing of probable cause. Therefore, a court reviewing an entry without a warrant by the police on the basis of exigent circumstances should first determine whether probable cause exists that the premises contain contraband or evidence of a crime. Second, where officers seek to justify an entry without a warrant for the purpose of securing the premises pending a warrant, they must show the existence of an actual emergency and articulate specific and objective facts which reveal a necessity for immediate action. In the context of a removal or destruction of evidence case, the most objective and compelling justification would be an actual observation of removal or destruction of evidence or such an attempt. Absent such compelling facts, the police must present facts indicating more than a mere possibility that there is a risk of the immediate destruction or removal of evidence. It seems self-evident that "warrantless searches of a home should not [be conducted by the police or validated by the courts] every time evidence is merely 'threatened with destruction’ [because police] may rationally perceive possibilities of destruction whenever they think evidence [of contraband] is on the premises.” To validate searches of a residence on the basis of hypothetical possibilities of destruction or removal would essentially nullify Fourth Amendment protections. However, in those cases where the police can show an objectively reasonable basis to believe the risk of destruction or removal of evidence is imminent — that immediate action is necessary before they can obtain a warrant — they may enter a residence for the limited purpose of securing the premises pending issuance of a search warrant. An examination of the facts of the instant case under these standards leads us to the following conclusions. First, the police met their burden of showing probable cause both that an offense had been committed and that the premises contained contraband. Police observed Gieber go to defendant’s residence, meet the defendant,, and return with cocaine. These facts, combined with the fact that the police observed traffic to the residence of known narcotics dealers would lead a reasonable person to believe that there was criminal activity afoot on the premises. Of course, these facts alone do not lead to a conclusion that there was a threat of the imminent destruction of evidence. In fact, nothing in the testimony of anyone in this case indicates that suspects or third parties planned to destroy evidence. The facts presented indicate that the sus-, pects did not know of the police investigative presence. Rather, the exigent circumstances in this case consisted solely of a risk that suspects might remove evidence via sales to consumers. As we noted earlier, a mere possibility that evidence might be removed does not rise to an exigent circumstance. Rather, the threshold question in this connection is this: Can the police produce specific facts supporting a reasonable and objective belief that there is an imminent risk of removal of evidence by suspects or third parties? We think the combined facts here supported the officers’ assertion that such a risk did exist. The alleged coconspirator Gieber told the agent that cocaine would not be available until a certain time, indicating a shipment had just arrived. Gieber went to defendant’s residence and returned with cocaine. The investigating agent inquired about procuring another ounce of cocaine. Gieber replied that the cocaine "was going fast” and might be gone by the end of the day. The defendant argues that one could regard this statement as mere "puffing” of a salesperson. In the abstract, this point has validity. However, the coconspira tor’s "going fast” statement did not occur in a cognitive vacuum. The police stated they observed vehicles licensed by known narcotics traffickers arrive and depart the defendant’s residence. This combined evidence provided credibility to the co-conspirator’s assertion that the contraband was "going fast.” The prosecution also argues that the risk of loss of the marked money additionally justified the entry without a warrant. This argument has some support in the case law of other jurisdictions. Nevertheless, we remain reluctant to hold that the risk of removal of marked police money would alone justify an entry without a warrant. To do so would recognize an exigency created to some degree by the police themselves. However, it strikes us that in this case the risk of the removal of the marked money via sales to consumers represented an objectively reasonable risk coextensive to the risk of the removal of the cocaine. The fact that the police did not know in advance that they would end up at defendant’s residence makes preventing loss of the marked money a credible supplemental justification for the entry without a warrant. This is not to say that in every case where police choose to use marked money for drug purchases an exigent circumstance is thereby present. However, all factors viewed in combination in this case, including the risk of removal of the marked money, supported the objective risk of a great likelihood that evidence would be removed in small quantities unless the police acted immediately. The prosecution additionally argues that the need to protect the fixed quantity of drugs in the residence from removal would justify an entry without a warrant. We find it unnecessary to review this argument because the facts before us do not present a scenario where the police entered without a warrant to protect from removal a fixed, as opposed to an unknown, quantity of contraband. v We conclude that in general, the police officers in this case acted reasonably under the exigent circumstances they confronted. They entered the defendant’s residence, conducted a pat-down search of the defendant for weapons, and waited for a warrant before performing a complete search. The fact that the police took the limited action of impounding the house and guarding it until the paperwork for a warrant could be completed five hours later indicates that the police tried to perform the most limited intrusion available. The police remained in the residence another three to five hours after they secured a warrant. This conduct indicates they did not obtain the search warrant as a mere formality. The fact that it took them approximately five hours to obtain a warrant together with other testimony in the record indicates they had not anticipated ending up at the defendant’s residence. Of course, where the police can anticipate in advance the likelihood of having to search a particular residence, their failure to obtain a warrant in advance where probable cause exists contributes to the exigency and ought not to be validated. That did not happen here. The case before us represents one where officers acted prudently at each step of their investigation and did not manufacture the exigent circümstances. Had the police ignored the available information of a risk of imminent removal of evidence, a criminal prosecution could have been jeopardized. Viewed in this light, the imminent risk of loss or removal of evidence transformed a presumptively unreasonable search without a warrant into a reasonable search under the exigent circumstances exception to the Fourth Amendment. We remand this case to the district court for proceedings consistent with this opinion. Riley, C.J., and Levin, Boyle, Archer, and Griffin, JJ., concurred with Brickley, J. Cavanagh, J., concurred in the result only. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [US Const, Am IV.] The Michigan Constitution embodies a substantially identical prohibition on searches without warrants. Const 1963, art 1, § 11. Neither the defendant nor his alleged coconspirator Gieber testified at the preliminary examination. Agent Gay testified that he had similarly scheduled purchases of illegal narcotics from Gieber on two past occasions in recent months. Agent Gay testified that he field-tested the substance, identifying positively as cocaine, before the officers conducted the raid on the defendant’s residence. In this connection the magistrate noted that "[i]f . . . Mr. Blasius believed that he had just sold to an undercover agent and was about to flush the stuff down the stool, that might be an exigent circumstance.” The Oliver Court added four additional relevant factors of its own, one of which included "preventing the destruction of evidence . . . .” Id. at 384. See Michigan v Tyler, 436 US 499, 509; 98 S Ct 1942; 56 L Ed 2d 486 (1978): "Our decisions have recognized that a warrantless entry by criminal law enforcement officials may be legal where there is compelling need for official action and no time to secure a warrant.” In contrast, in Welsh v Wisconsin, 466 US 740, 754; 104 S Ct 2091; 80 L Ed 2d 732 (1984), the Court invalidated a residential entry without a warrant to arrest a suspect for a misdemeanor drunk driving offense. The Court reasoned that a residential entry without a warrant for a nonjailable offense even under exigent circumstances "is clearly prohibited by the special protection afforded the individual in his home by the Fourth Amendment.” See United States v Santana, 427 US 38, 43; 96 S Ct 2406; 49 L Ed 2d 300 (1976), where the Court commented in a case involving the hot pursuit of a fleeing suspect that "a realistic expectation that any delay would result in destruction of evidence” provided additional justification for a residential entry without a warrant. (Emphasis supplied.) See Salken, Balancing exigency and privacy in warrantless searches to prevent destruction of evidence: The need for a rule, 39 Hastings L J 283, 300, 323 (1988): "It is clear that the [federal] circuits disagree about the permissibility of warrantless intrusions based on the threatened destruction of evidence. They also disagree about the factors that should be considered in making the determination.” See Salken, id. at 300. 2 LaFave, Search & Seizure (2d ed), § 6.5(b), p 658. See Salken, n 10 supra at 324. Some analysts have questioned the efficacy of the Dorman factors even in this connection. See Caldwell & Ghormley, Vale to Segura [v United States, 468 US 796; 104 S Ct 3380; 82 L Ed 2d 599 (1984)]: The wrong road, 17 SW Univ L R 473, 480, n 35 (1988): "[The Dorman] factors are framed in such way as to provide little or no help to police in the field.” See Welsh v Wisconsin, n 8 supra. This Court has also very briefly commented on exigent circumstances in a number of cases. See People v Holloway, 416 Mich 288; 330 NW2d 405 (1982); People v Crawl, 401 Mich 1, 28-29; 257 NW2d 86 (1977); People v White, 392 Mich 404, 410; 221 NW2d 357 (1974). See Brady, Two models of the Fourth Amendment, 83 Mich L R 1468, 1500-1501 (1985): "Fourth Amendment law, to be effective in limiting inappropriate police behavior while at the same time allowing for effective law enforcement, must be a coherent and relatively simple doctrine that a policeman can readily understand and apply.” United States v United States District Court for the Eastern District of Michigan, 407 US 297, 313; 92 S Ct 2125; 32 L Ed 2d 752 (1972). See Zurcher v Stanford Daily, 436 US 547, 556; 98 S Ct 1970; 56 L Ed 2d 525 (1978): "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things’ to be searched for and seized are located on the property to which entry is sought.” Note, Police practices and the threatened destruction of tangible evidence, 84 Harv L R 1465,1473 (1971). An officer did testify that the police knew of the presence of a police radio monitor in the residence but conceded that "I don’t believe [the defendant] could monitor us.” See Diggs v State, 531 NE2d 461 (Ind, 1988), cert den 490 US 1038; 109 S Ct 1939; 104 L Ed 2d 410 (1989); State v Peardot, 119 Wis 2d 400; 351 NW2d 172 (1984). See United States v Curran, 498 F2d 30, 35 (CA 9, 1974). A search limited to an area immediately surrounding an arrestee to prevent the arrestee from obtaining weapons or destroying evidence does not violate the Fourth Amendment. Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969). In contrast, see Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978), where the Court invalidated as unreasonable a search by police of a defendant’s residence without a warrant which lasted for four days.

Rrickley, J. We decide in this case whether the highway exception to governmental immunity ex poses the defendants to liability for injuries suffered by a cyclist because of a defect in a designated bicycle path on the inner portion of the paved shoulder of a state highway. The Court of Appeals relied on our decision in Roy v Dep’t of Transportation, 428 Mich 330; 408 NW2d 783 (1987), to affirm summary disposition in the defendant’s favor. We hold that governmental immunity does not bar the cause of action set forth in the plaintiffs’ complaint and reverse the decision of the Court of Appeals. i The plaintiff alleged he suffered injuries from a bicycle accident on September 10, 1985. The plaintiff apparently went for a ride that evening on his fourteen-speed racing bicycle. He traveled on the west shoulder of State Highway M-35 in Ford River Township, Delta County, at approximately twenty-seven miles per hour. The plaintiff’s bicycle struck a pothole, and rider and bicycle overturned. Plaintiff’s complaint alleged a litany of injuries resulting from the accident, including head and back injuries, a broken collar bone, and broken ribs. The plaintiff filed a complaint in the Court of Claims, alleging that the state had ownership, jurisdiction, and responsibility for the maintenance of highway M-35, and charging that the state had failed to inspect, repair, and warn users of defects in the bicycle path. The complaint further alleged that these negligent acts and omissions constituted the proximate cause of his injuries. The Highway Department moved for summary disposition asserting governmental immunity and citing our decision in Roy v Dep’t of Transporta tion in support. It contended that, consistent with Roy, its duty to maintain highways did not extend to bicycle paths. The Court of Claims agreed with defendant’s arguments and granted summary disposition. The Court of Appeals affirmed the decision without further analysis, agreeing "that summary disposition was proper in light of our Supreme Court’s recent opinion in Roy v Dep’t of Transportation . . . .” The plaintiff submitted a photograph of the accident scene with his brief, indicating a pothole located within two white lines. The lines demark a bicycle path running parallel to and seemingly between the traveled portion of the highway and its paved shoulder. The defendants have not contested the accuracy of this photograph. Because this case was decided on summary disposition, we agree with the defendant that "the only facts before the Court are those allegations as set forth in the Complaint.” The plaintiff alleged in his complaint that he was injured on a "designated bicycle path on the west shoulder of said highway . . . .” Our analysis, therefore, is based on the assumption that the bicycle path at issue comprised part of the inner portion of the shoulder closest to the roadway. ii A The defendant argues that nonmotorists are not protected parties under §2 of the governmental immunity act and that such protection is afforded only to "vehicular travel.” The defendant notes that the Motor Vehicle Code defines vehicles as motor vehicles. Hence a bicyclist must be excluded from protection under § 2. We think a straightforward reading of the statute clearly and adequately refutes the defendant’s assertions. The statute extends the immunity exception to "[a]ny person sustaining bodily injury or damage to his property . . . .” (Emphasis supplied.) The plaintiff certainly qualifies as one to whom the duty to maintain safe highways extends and the waiver of immunity applies. However, the "vehicular travel” language of § 2 seized upon by the defendant clearly does not limit the class of travelers who may recover damages for injuries due to defects on the improved portion. The words "designed for vehicular travel” describe and define the "improved portion of the highway” to which the duty of the governmental agency "to keep any highway under its jurisdiction . . . safe and fit for travel” applies. MCL 691.1402; MSA 3.996(102). B Defendant also contends that exception to immunity under §2 does not extend to the instant case. In defendant’s view, the path was not de signed for "vehicular travel” because the shoulder of the road exists solely for "emergency accommodation.” In Roy, supra, we held that bicycle paths adjacent to, but not a part of, a highway did not comprise part of the improved portion designed for vehicular traffic and hence did not remove governmental immunity from suit. We concluded in Roy: [T]he exception to immunity found in § 2 of the governmental immunity act does not apply to bicycle paths. The [highway exception to immunity] does not apply to an "installation outside of the improved portion of the highway designed for vehicular travel.” A bicycle path is not designed for vehicular travel, in the common sense of "vehicular” as relating to motor vehicle. [428 Mich 340.] We further stated: [T]he statute does not offer general protection to pedestrians or motorists without regard to location. The statute announces a duty to repair and maintain the highway so that the improved portion designed for vehicular travel is reasonably safe and convenient for public travel. The criterion used by the Legislature was not based on the class of travelers, but the road on which they travel. [428 Mich 341.] The trial court and Court of Appeals erred in granting summary disposition in this case on the basis of Roy. In the instant case, unlike Roy, the plaintiff has alleged the bicycle path and the location of the defect occurred on the shoulder of the highway immediately adjacent to its regularly traveled portion. The defect here did not occur on an installation, as in Roy, separated and "de tached” from the improved portion. The allegedly defective bicycle path in this case unquestionably comprised part of the highway. " 'Shoulder’ means that portion of a highway . . . .” MCL 257.1501(k); MSA 9.3200(l)(k). (Emphasis added.) Neither the defendants nor the dissent contends that this paved shoulder is not part of the improved portion of the highway. However, they do contend that the highway’s shoulder does not comprise that part of the improved portion of the highway "designed for vehicular travel.” Framed this way, the crucial issue involves whether the paved shoulder of the road is "designed for vehicular travel.” The dissent cites Goodrich v Kalamazoo, 304 Mich 442; 8 NW2d 130 (1943), a case decided under a predecessor statute in support of the argument that the Legislature in enacting §2 of the current statute did not intend the shoulder of the road to be excepted from the statute’s general grant of immunity. Goodrich concerned a fourteen-foot-wide paved road bounded by approximately "three-foot” wide "dirt and gravel” shoulders. The plaintiff struck a tree that was "about 30 inches from the edge of the pavement” and therefore a part of the shoulder of the road. Id. at 444. Since the dirt and gravel shoulder was only approximately three feet in width and apparently had at least one tree growing on it, it is not surprising that the court found the shoulder not to be a part of the " 'traveled’ portion of the road.” Id. at 446. We would not disagree that a three-foot-wide dirt and gravel shoulder adorned with an occasional tree is not "designed for vehicular travel” under today’s statute or any statute. As in Goodrich, we would probably conclude that such a shoulder was also not part of the "improved por tion” of the highway. Similarly, it does not seem surprising that when the Court of Appeals began analyzing shoulder-accident cases under our current immunity exception statute, it made no reference to Goodrich. In Johnson v Michigan, 32 Mich App 37; 188 NW2d 33 (1971), lv den 385 Mich 762 (1971), the Court of Appeals observed correctly we think, that the shoulder from which the plaintiff was returning to the traveled portion of the road, like shoulders generally, was "designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway.” Id. at 39. Other Court of Appeals panels, without exception, have followed that precedent. See Van Liere v State Hwy Dep't 59 Mich App 133; 229 NW2d 369 (1975), and McKee v Dep’t of Transportation, 132 Mich App 714; 349 NW2d 798 (1984). The dissent accurately points out that the Legislature has been quick to correct the result of Court of Appeals decisions that have extended the §2 exception to governmental immunity. We find it persuasive that the Legislature has not included in those correcting amendments the result of an uninterrupted line of cases extending from 1971 that conclude that a shoulder is designed for vehicular travel. The dissent points to §59a of the Michigan Vehicle Code, which describes the shoulder of the road, as "not designed for vehicular travel but maintained for temporary accommodation of disabled or stopped vehicles . . . MCL 257.59a; MSA 9.1859(1). Post, p 321. That the Legislature did not in our view intend this to be a definition of vehicular travel under § 2 of the governmental immunity act is made evident by another section of the Motor Vehicle Code which states: "'Shoulder’ means that portion of a highway or street on either side of the roadway which is normally snowplowed for the safety and convenience of vehicular traffic.” MCL 257.1501(k); MSA 9.3200(l)(k). (Emphasis supplied.) Moreover the contention that the Legislature did not intend to include highway shoulders under the § 2 exception has an obvious flaw: it flies in the face of common experience. Any motorist who has ever experienced a highway emergency understands that shoulders are essential to a safe modern highway. To get on or off a shoulder to stop, park, or leave standing a vehicle, motorists must travel on the shoulder. At the high speeds of modern vehicles, such an endeavor often results in significant travel, "in the ordinary sense,” on the shoulder of a highway. Indeed, it seems quite extraordinary, if not fictional, to assume that vehicles do not travel on shoulders or that shoulders are not designed for vehicular travel, albeit of a temporary sort. More technically, the Motor Vehicle Code is quite precise in its definitions. It defines roadway quite narrowly as "that portion of a highway improved, designed, or ordinarily used for vehicular travel.” MCL 257.55; MSA 9.1855. On the other hand, it defines "[h]ighway or street ... [as the] entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” MCL 257.20; MSA 9.1820, and MCL 257.64; MSA 9.1864. (Emphasis supplied.) If the Legislature had intended liability for the failure to maintain safe roadways only, it seems the Legislature would have done just that. It did not. The conclusion that shoulders do not comprise part of a highway’s improved portion, taken to its logical extreme, could lead to illogical results. Such outcomes seem incongruous with a statute that plainly commands highway authorities to safely repair and maintain highways for public travel. Such outcomes surely do not "clearly express[] [the] intent of the Legislature . . . .” Post, p 318. Finally, not only did Roy concern a bicycle path that was separate and apart from the roadway and the shoulder of the highway, but it concerned a path on which motor vehicles would have no occasion to enter for any reason. Furthermore, our analysis of Roy supports the different result in this case. In concluding our analysis in Roy, we said: This interpretation fits within each of the interpretative clues identified above. It satisfies the express wording of § 2 which limits the duty created there to less than the full highway. It does not frustrate the policy announced in other statutes of protecting bicyclists by requiring them to use bicycle paths, where provided, in preference to roads, because bicycles on bicycle paths are not exposed to the hazards which arise from mixing bicycle and vehicular means of travel. [Id. at 341. Emphasis supplied.] The "mixing bicycle and vehicular means of travel” is precisely what has occurred here. The white lines in this case drawn along the border of the road may have been designed to confine bicycle travel, but could not possibly have been designed to prohibit vehicular travel consistent with the shoulder’s statutory purpose of accommodating disabled vehicles. hi Because the plaintiff is one of the "class of travelers” included in § 2 and because the area of the road designated for bicycle travel comprised part of the improved portion of the highway designed for vehicular travel as defined in that statute, we reverse the judgment of the Court of Appeals and remand the case to the Court of Claims for proceedings consistent with this opinion. Levin, Cavanagh, and Archer, JJ., concurred with Brickley, J. Boyle, J., concurred in the result only. MCL 691.1402; MSA 3.996(102) provides in pertinent part: Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel. MCL 257.79; MSA 9.1879 defines a vehicle as "every device . . . excepting devices exclusively moved by human power . . . .” MCL 257.4; MSA 9.1804 defines a bicycle as a "device propelled by human power . . . .” Similarly, and contrary to dicta in Roux v Dep’t of Transportation, 169 Mich App 582; 426 NW2d 714 (1988), the language and purpose of the highway immunity statute implies that the standard of care imposed on highway authorities applies to persons and not the vehicles in which they travel. It allows recovery to "[a]ny person sustaining bodily injury or damage to his property” and requires maintenance of highways "reasonably safe and convenient for public travel.” Therefore, although the exception to immunity limits the duty of the state to "the improved portion of the highway designed for vehicular travel,” the standard of care allows a cause of action for persons — both motorists and nonmotorists — entitled to travel on the improved portion. We distinguished Goodrich in Ballinger v Smith, 328 Mich 23, 27-33; 43 NW2d 49 (1950), a case interpreting a statute requiring parked vehicles to display lamps on a highway. We held in Ballinger that the duty to display lamps on the highway encompassed a vehicle parked on a shoulder "intended for the use of vehicular traffic in an ordinary and reasonable manner.” Id. at 32. The Court rejected Goodrich as controlling, noting that the "fact that [a tree thirty inches from the edge of the pavement] was left in [that] position necessarily leads to the conclusion that the place it occupied was not designed or maintained for traffic.” Ballinger, supra at 32-33. We think this question would be closer if the bike path had been on the outer fringes of the shoulder, thereby making vehicular travel thereon unlikely, especially if the shoulder was wide enough to accommodate both an automobile and the bike path.

Boyle, J. We granted leave to appeal in this first-party action to recover no-fault benefits to determine whether the trial court properly granted plaintiff’s motion for summary disposition on the basis that the reasonableness and necessity of medical expenses incurred by plaintiff did not affect defendant’s liability for those expenses under § 3107 of the no-fault act, MCL 500.3101 et seq.; MSA 24.13101 et seq. We also consider whether the trial court properly concluded that the collateral source rule applied in this case to preclude any evidence of other insurance benefits that plaintiff may have received or been entitled to receive. The Court of Appeals affirmed, the decision of the trial court with regard to both issues. We now reverse the decision of the Court of Appeals. I FACTS AND PROCEEDINGS On April 13, 1982, plaintiff Nasser was involved in an apparently minor automobile accident in a shopping mall parking lot. That afternoon, complaining of pain in his head, neck, chest, shoulder, and both upper and lower back, as well as blurred vision and nausea, he sought medical treatment from Dr. Roberto William, an internist. Dr. William admitted plaintiff to Kirwood Hospital on the following day, April 14, 1982, where he remained until April 30, 1982. Dr. William later hospitalized plaintiff a second time, from May 4 through May 21, 1982, and then again from June 1 through June 18, 1982. All told, plaintiff spent fifty days in the hospital as a result of this parking lot accident. During the three months he was treated by Dr. William, plaintiff underwent a battery of medical tests, all of which returned negative results, except one that indicated that plaintiff had an abnormally slow heartbeat. He also received physical therapy and other treatments, including pelvic traction, during this time. Immediately following his discharge from the third hospitalization, plaintiff returned to work. He sought no further treatment from Dr. William. Plaintiff’s medical expenses as a result of this accident totaled $25,059.29. He applied for no-fault benefits after his first hospitalization, on or about April 30, 1982. Defendant requested an independent examination of plaintiff by a physician of its choice. On July 10, 1982, after plaintiff’s final hospitalization, he was examined by defendant’s doctor, Dr. Mitchell Poliak, who pronounced him able to return to work and in need of no further treatment. After a further examination of Dr. William’s report and plaintiff’s other records, at defendant’s request, Dr. Poliak later submitted his own reports, dated January 12 and January 31, 1983, stating that in his belief all three instances of hospitalization and much of the treatment and testing performed on plaintiff had been unnecessary. On the basis of this opinion, defendant refused to pay any benefits. In February, 1983, plaintiff filed this first-party action, alleging both a breach of the no-fault insurance contract and intentional and outrageous conduct on defendant’s part causing him emotional harm. Defendant answered by denying any liability for plaintiff’s expenses; its eventual position was that the expenses were unreasonable, unnecessary, and undocumented. Prior to trial, plaintiff filed two motions, which were heard on the scheduled date of trial. The first was a motion in limine to bar reference to other insurance coverage. The trial court granted this motion, citing the collateral source rule and MRE 403. The second motion was for summary disposition on the merits of both claims. In his written motion, plaintiff relied on MCR 2.116(C)(9), failure to state a valid defense. According to plaintiff, defendant was "estopped” to claim that any expenses were not reasonably or necessarily incurred, since it had waited more than six months after the bills were submitted to review plaintiff’s medical records. More substantively, however, plaintiff argued that defendant had no legal basis for claiming that the expenses were not reasonable and necessary, since a mere assertion by its expert that he would have treated plaintiff differently is insufficient "as a matter of law” to preclude liability. As plaintiff argued in his brief in support of the motion, summary disposition should have been granted pursuant to MCR 2.116(C)(9), for the reason that a defense predicated solely upon the word of one physician against another that he would not have performed the same medical care and treatment does not, as a matter of law, render such treatment unreasonable pursuant to statute so as to permit the insurer to deny or otherwise avoid personal insurance protection or medical payments. At oral argument, plaintiff amended his written motion to claim additionally that there was no genuine issue of fact to be resolved with respect to liability, and that he was therefore entitled to summary disposition pursuant to MCR 2.116(0(10). On this point, plaintiff essentially restated his argument that a mere assertion by defendant’s expert that there were alternative methods of treatment available cannot defeat plaintiff’s claim. Defendant responded that it had raised a valid defense to plaintiff’s claim by challenging the reasonableness and necessity of the expenses under § 3107 of the no-fault statute, which provides that an insurer is liable only for "reasonable charges incurred for reasonably necessary products [and] services.” Defendant also argued that there were issues of fact to be resolved with respect to liability, since "[wjhether in fact these services, etc., are reasonable and necessary is most definitely a question of fact for the jury to decide.” The trial court granted plaintiff’s motion for summary disposition on both grounds. It found initially that challenging the reasonableness and necessity of the medical expenses was not a "valid defense to a contract action,” or to plaintiff's claim of emotional distress, since those considerations went to the issue of damages, not liability. For the same reason, it found that this stated defense also failed to establish any genuine issue of fact regarding liability. The court did indicate, however, that it was willing to let the issue of damages go to the jury. Apparently believing that the trial court would allow it to contest, under the title "damages,” only the reasonableness of the actual charges for particular products and services and not their necessity as well, defendant indicated that it was willing to waive its right to a jury trial and allow the trial court to hear the evidence on damages. It made clear, however, that it considered this waiver "conditional,” and that it intended to appeal the trial court’s ruling regarding its liability under § 3107; if it prevailed, it would seek a jury trial on all issues. The trial court agreed that defendant’s request for a jury trial would be "reserved.” The issue of damages was then tried, largely on the strength of the depositions of the two physicians. The trial court found for plaintiff in the amount claimed as contract damages, $25,059.29. In so ruling, the court arguably found the expenses not only reasonable, but also necessary. The trial court did not award damages on the basis of defendant’s "intentional” and "outrageous” conduct, although it did award plaintiff attorney fees under MCL 500.3148; MSA 24.13148 and statutory postcomplaint interest pursuant to MCL 600.6013; MSA 27A.6013. It aJ«o declined to award plaintiff interest pursuant to MCL 500.3142; MSA 24.13142, the provision of the act providing penalty interest for overdue payments. Defendant appealed in the Court of Appeals, which, in June, 1988, affirmed the trial court’s grant of summary disposition, but reversed its refusal to grant penalty interest under § 3142. 169 Mich App 182; 425 NW2d 762 (1988) (.Nasser I). The Court first addressed defendant’s contention that it had presented a valid defense to plaintiff’s breach of contract claim. The Court disagreed, concluding that "[t]he reasonableness of medical expenses cannot be used as a defense to liability in a no-fault accident case.” Id., p 186. It relied on "[s]trong policy considerations” to support its conclusion: [A]n accident victim would be held to an impossible standard of medical knowledge if required to determine that his or her doctor’s orders were "reasonably necessary” before accepting treatment. Therefore the defense of reasonableness as to plaintiff’s medical expenses was legally insufficient — so untenable that no factual development would have prevented plaintiff’s right to recovery —and the trial court properly granted summary disposition pursuant to MCR 2.116(C)(9). Karaskiewicz v Blue Cross & Blue Shield of Michigan, 126 Mich App 103, 110; 336 NW2d 757 (1983), lv den 418 Mich 882 (1983). The Court also rejected the defendant’s argument that summary disposition should not have been granted pursuant to MCR 2.116(0(10) because the dispute over the reasonableness and necessity of plaintiff’s medical expenses constituted a genuine issue of fact. It essentially adopted the position of the trial court that the question of reasonableness went not to the issue of liability, but rather to the issue of damages: The disagreement over the reasonableness of the medical expenses did not constitute a genuine issue of material fact. Defendant never disputed that plaintiff was treated by Dr. Williams [sic] for injuries arising from the accident of April 13, 1982, or that plaintiff was billed $25,059.29 for his medical care, and defendant never argued that the charges for these services were excessive. As plaintiff’s no-fault insurer, defendant was liable for payment of beneñts for plaintiff’s injuries, because such injuries arose "out of the ownership, operation, maintenance or use of a motor vehicle,” MCL 500.3105(1); MSA 24.13105(1). Defendant was required to pay such benefits within thirty days of receiving "reasonable proof ” of injury and amount of loss, failure to pay giving rise to a rebuttable presumption of unreasonable refusal or undue delay. MCL 500.3142(2); MSA 24.13142(2); Bradley v DAIIE, 130 Mich App 34, 46; 343 NW2d 506 (1983). As there was no issue of liability, there were no genuine issues of material fact except as to the amount of damages, and the question of reasonableness went not to the issue of liability but to the issue of damages. [Id., pp 186-187. Emphasis added.] The Court concluded, however, that defendant had waived its right to a jury trial on the damages question, and that the trial court had thus properly ruled, "as a matter of law,” that the medical expenses were both reasonable and necessary. Defendant moved for rehearing, which was granted in September, 1988. In October, 1988, the Court issued a second opinion "clarifying” the first, but again affirming the trial court’s disposition of the case. 171 Mich App 741; 431 NW2d 103 (1988) (Nasser II). Nasser II did not repudiate any part of the Court’s earlier opinion, but merely explained in greater detail its initial conclusion that defendant had not stated a valid defense to the breach of contract claim. The Court determined that defendant’s argument "beg[ged] the question of whether at least some liability existed, which it clearly did in this case and which was the issue determined pursuant to summary disposition.” Id., p 745. (Emphasis added.) Given this clear proof that there had been an accident and at least some degree of injury, defendant could not be allowed to defend on the general basis that the expenses were unreasonable or unnecessary. As stated by the Court, [WJhere at least some degree of liability is clear, as in this case, the reasonableness of an insured’s medical expenses may not be used as a defense to all liability in a no-fault accident case. [Id., p 746.] The Court also reiterated its belief that there was no question of fact in this case, at least with regard to liability, and again noted that defendant would have reached a jury on the reasonable and necessity issues in a trial on damages. Since it had waived that right, however, the trial court properly made the determination as a matter of law. The Court ultimately affirmed the substance of its earlier opinion, stating that "we cannot adopt the position, argued by defendant, that the issue of unnecessary or unreasonable medical expenses went to the question of liability.” Id., p 747. II MOTION FOR SUMMARY DISPOSITION A We reject plaintiff’s claim that his motion for summary disposition was intended to resolve, preliminarily, only the question of defendant’s liability for interest on overdue payments under § 3142 of the act in the event it was determined at trial that defendant in fact had breached its duty to pay under the contract. A thorough review of the record clearly establishes that, while plaintiff’s motion contains allegations that the defendant failed to pay benefits within thirty days, thus "violating” § 3142 and entitling plaintiff to penalty interest on any payments found to be due, plaintiff’s primary contention throughout the motion was that defendant had failed to state a defense to liability for the expenses themselves. The defendant insurer defended against the motion as though it were a motion to determine the merits of these claims, and both the trial court and the Court of Appeals treated it as such. Perhaps the best evidence that the motion for summary disposition was not as limited as plaintiff suggests, and was not treated by the lower courts, particularly the trial court, as such, is plaintiff’s own proposed finding of damages, apparently prepared by counsel on March 21, 1986, three days after the March 18, 1986, hearing on the motion for summary disposition and the bench trial that followed, and filed the day before the trial court announced its decision on damages. Plaintiff states: This Honorable Court has, by way of summary disposition, previously found Defendant liable to Plaintiff for expenses incurred by Plaintiff as a result of medical treatment rendered following a motor vehicle accident. Subsequent to the grant of summary disposition, and after waiver of a trial by jury as to damages incurred, this Court held an evidentiary hearing. Plaintiff submits this Proposed Finding of Damages as to the issue of amount of damages. [Emphasis added.] Plaintiff clearly recognizes by this statement that the trial court granted summary disposition with regard to defendant’s liability for the medical expenses themselves, not simply the interest on those expenses should it later be determined that defendant was liable to pay them. B The primary basis for the trial court’s grant of summary disposition was MCR 2.116(C)(9), failure to state a valid defense. That rule provides, in full: (C) Grounds. The motion [for summary disposition] may be based on one or more of these grounds, and must specify the grounds on which it is based: (9) The opposing party has failed to state a valid defense to the claim asserted against him or her. The substance of plaintiff’s breach of contract claim is found in paragraphs 7 through 9 of his complaint: 7. That on said date Plaintiff, Nasr Nasser, sus tained bodily injury caused by an automobile collision and arising out of the ownership, operation or use of an automobile. 8. That as a result of the said bodily injury, Plaintiff, Nasr Nasser was required to expend or become liable for large sums of money for medical and hospital care and treatment; and was caused to loes [sic] income from work he would have performed had he not been injured; and was caused to incur expenses in obtaining ordinary and necessary services from others in lien [sic] of those services that he would have performed for the benefit of himself and his Dependents had he not been injured. 9. That by virtue of the foregoing, and in accordance with the terms of said insurance policy and the said no-fault endorsement, Defendant has become liable to pay over to Plaintiff certain benefits. The defendant answered by denying each of these allegations: 7. In Answer to paragraph 7 of Count I of Plaintiff’s Complaint, Defendant denies the allegations contained therein, as they are untrue. 8. In Answer to paragraph 8 of Count I of Plaintiff’s Complaint, Defendant denies the allegations contained therein, as they are untrue. 9. In Answer to paragraph 9 of Count I of Plaintiff’s Complaint, Defendant denies the allegations contained therein, as they are untrue. A motion for summary disposition under MCR 2.116(C)(9) is tested solely by reference to the parties’ pleadings. "[W]hen, as here, a material allegation of the complaint is categorically denied, summary [disposition] under [MCR 2.116(C)(9)] is improper.” Pontiac School Dist v Bloomfield Twp, 417 Mich 579, 585; 339 NW2d 465 (1983). In this case, the defendant’s answer denied that plaintiff had sustained bodily injury (¶ 7), that he "was required” to expend or become liable for medical and hospital care and treatment (¶ 8), and that defendant was liable for all such expenses (¶ 9). Clearly, by these denials defendant stated a valid defense to plaintiff’s breach of contract claim. The trial court granted plaintiff’s motion pursuant to MCR 2.116(C)(9), however, because it thought that the insurer’s defense as it eventually developed, i.e., as a challenge to the reasonableness and necessity of the expenses, went not to "liability,” but to "damages.” The Court of Appeals essentially agreed. As it stated in Nasser I, supra, p 186, "[t]he reasonableness of medical expenses cannot be used as a defense to liability in a no-fault accident case.” Both lower courts erred in two respects in reaching this conclusion. First, as explained above, merely denying liability is itself a valid defense. The fact that the defense ultimately might be unsuccessful in whole or in part does not render it invalid for purposes of MCR 2.116(C)(9), nor does the fact that it ultimately might be found not to create a genuine issue of material fact to be resolved at trial, thus entitling plaintiff to summary disposition under MCR 2.116(0(10). Somewhat more substantively, the courts below also erred in concluding that the lack of reasonableness or necessity does not affect defendant’s liability for medical expenses. Under § 3105 of the no-fault act, an insurer is "liable to pay [pip] benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” (Emphasis added.) The relevant provision in this case is § 3107, which provides that pip benefits are payable only for "[allowable expenses.” Section 3107 defines allowable expenses as "consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” Under this statutory scheme, an insurer is not liable for any medical expense to the extent that it is not a reasonable charge for a particular product or service, or if the product or service itself is not reasonably necessary. The plain and unambiguous language of § 3107 makes both reasonableness and necessity explicit and necessary elements of a claimant’s recovery, and thus renders their absence a defense to the insurer’s liability. In addition, the burden of proof on these issues lies with the plaintiff. As stated in SJI2d 35.02: In order for the plaintiff to recover no-fault benefits from the defendant, the plaintiff has the burden of proof on each of the following: c. (that plaintiff incurred allowable expenses which consist of reasonable charges for reasonably necessary products, services and accommodations for the plaintiff’s care, recovery or rehabilitation). In Nelson v DAIIE, 137 Mich App 226, 231; 359 NW2d 536 (1984), a different panel of the Court of Appeals clearly recognized the insured’s burden to prove reasonableness and necessity: Under the Michigan no-fault act, an insurer is liable for personal protection insurance benefits including "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery or rehabilitation.” MCL 500.3107(a); MSA 24.13107(a). In order for plaintiff in this case to sustain her burden of proving defendant’s liability for medical expenses incurred . . . plaintiff is required to establish that the expenses were reasonably necessary to her recovery from injuries caused by the automobile accident. [Emphasis added.] See also Kondratek v Auto Club Ins Ass’n, 163 Mich App 634, 637; 414 NW2d 903 (1987). Moreover, it is each particular expense that must be both reasonable and necessary. The concept of liability cannot be detached from the specific payments involved, or expenses incurred: The statute requires that three factors be met before an item is an "allowable expense”: 1) the charge must be reasonable, 2) the expense must be reasonably necessary, and 3) the expense must be incurred. These are the standard requirements for recovery of such expenses under all no-fault plans .... [Manley v DAIIE, 425 Mich 140, 169; 388 NW2d 216 (1986) (Boyle, J., concurring in part).] Where a plaintiff is unable to show that a particular, reasonable expense has been incurred for a reasonably necessary product and service, there can be no finding of a breach of the insurer’s duty to pay that expense, and thus no finding of liability with regard to that expense. The Court of Appeals in Nasser I, supra, p 186 stated that "the defense of reasonableness as to plaintiff’s medical expenses was legally insufficient — so untenable that no factual development would have prevented plaintiff’s right to recovery,” citing Karaskiewicz v Blue Cross & Blue Shield of Michigan, supra, p 110 (emphasis added). We do not question the Court of Appeals formula tion of the standard to be applied; rather, we disagree with its application in this case. While the situation may be rare, as this one is, it cannot be said as a matter of law that contesting the reasonableness and necessity of medical expenses can never defeat all liability. In other words, it is possible for there to be cases in which the factual developments establish that none of the medical expenses incurred were reasonable or necessary, and that therefore there is no insurer liability. The fact that this may not turn out to be such a case in no way diminishes the validity of the "reasonableness defense” for purposes of MCR 2.116(C)(9). The Court of Appeals opinion on rehearing did not cure this fundamental misconception of § 3107. In Nasser II, the Court found that defendant, as plaintiff’s no-fault insurer, must be liable for at least some benefits, since there was "clear proof” of the accident and "some degree” of injury. It thus restated its conclusion to provide that where at least some degree of liability is clear, the reasonableness or necessity of medical expenses cannot be a defense to all liability. Again, the Court of Appeals misconstrued § 3107. The fact that the defendant may be liable for some of the expenses, i.e., those reasonable charges incurred for products and services that were necessary, does not necessarily establish its liability for all of the expenses, including any unreasonable charges for unnecessary services. Once it is recognized that § 3107 is a liability provision, rather than a damages provision, the error on the part of the lower court in granting summary disposition pursuant to MCR 2.116(C)(9) is apparent. c In fairness to both the Court of Appeals and the trial court in this case, we must acknowledge that, while they concluded that the reasonableness and necessity of the expenses did not affect the defendant’s "liability” for those expenses — again, it was liable for all these expenses merely by virtue of being plaintiff’s no-fault insurer — they were nonetheless prepared to allow defendant to contest the amount of "damages” to which plaintiff was entitled as a result of the breach of its duty to pay those expenses. In fact, the trial court in this case did conduct a trial at which defendant had the opportunity to challenge both the reasonableness and the necessity of the expenses. Defendant, however, chose to conditionally waive its right to contest those issues before a jury in a proceeding styled as a trial on damages alone, apparently to speed the resolution of the case and its appeal to the Court of Appeals on the imposition of liability. It could be argued that defendant was not harmed by the trial court’s grant of summary disposition with regard to liability in this case in light of the court’s willingness to allow the defendant to contest reasonableness and necessity in a damages trial. Not surprisingly, plaintiff argues that, whatever else happened in this case, defendant had its day in court on these issues; the court simply ruled against it. We decline to apply this sort of "harmless error” rule to these facts. As a practical matter, we are precluded from doing so in this case by defendant’s reservation of its right to a full jury trial on the questions of reasonableness and necessity, i.e., liability, in the event it prevailed on its appeal of the trial court’s grant of summary disposition. It has prevailed, and it is therefore entitled to a jury trial on the issue. In addition, we disagree with the argument that defendant cannot possibly have been harmed by the lower courts’ misinterpretation and misapplication of § 3107, or by its own waiver of the right to a jury trial. In our view, a trial on damages, even a "full” trial with regard to that issue, cannot be equated with a full trial with regard to both liability and damages. The issues addressed, obviously, are not exactly the same; thus, the evidence that the court or jury will consider or find relevant is not exactly the same. We cannot fault defendant in this case for concluding that the scope of the trial might not have been as wide, and its right to present evidence as extensive, as in a full trial on both liability and damages, and thus we cannot fault it for asserting its right to challenge the imposition of liability against it by way of summary disposition. D We recognize that undoubtedly what troubled both the trial court and the Court of Appeals in this case was the fact that, while some of the products and services received by plaintiff might have been either unreasonable or unnecessary, there were bound to be some expenses that were both reasonable and necessary, such as the expense of an initial visit to a doctor immediately following the accident. Indeed, defendant’s own expert acknowledged that he also would have treated plaintiff, albeit on an outpatient basis, with physical therapy. Yet, defendant chose to withhold payment on all expenses. The lower courts may simply have been reluctant to award defendant a chance to contest its liability regarding any clearly allowable expenses. It was unnecessary, however, for the lower courts to declare defendant liable for all of plaintiff .’s expenses, including any unreasonable or unnecessary expenses, in order to accomplish the goal of precluding defendant from contesting any clearly allowable expenses. While there was certainly a genuine factual dispute in this case regarding whether almost all of the $25,000 in expenses consisted of reasonable charges for reasonably necessary products and services, to the extent that there were some clearly allowable expenses among those sought, the trial court simply could have granted partial summary disposition in plaintiff’s favor with regard to those expenses, pursuant to MCR 2.116(0(10) (not under MCR 2.116[C][9]). While the question whether expenses are reasonable and reasonably necessary is generally one of fact for the jury, Nelson v DAIIE; Kondratek, supra, it may in some cases be possible for the court to decide the question of the reasonableness or necessity of particular expenses as a matter of law in much the same way that under certain circumstances it may decide whether a plaintiff has sustained a threshold injury under § 3135 of the act. DiFranco v Pickard, 427 Mich 32; 398 NW2d 896 (1986). Thus, if it could be "said with certainty” that an expense was both reasonable and necessary, the court could make the decision as a matter of law. Id., p 51. As always, the determination would be made after viewing the evidence in the light most favorable to the non-moving party. Id., p 52; Gallagher v Parshall, 97 Mich App 654, 658-659; 296 NW2d 132 (1980). As for the Court of Appeals determination that "strong considerations” of public policy compel its interpretation of § 3107, we disagree. That section as written requires only that an insurer pay reasonable charges incurred for reasonably necessary products and services. While policy considerations may indeed cause some reluctance on the part of courts to allow insureds to be "stuck” with unnecessary expenses that they might not reasonably be expected to avoid incurring on the advice of their physicians, that determination was made by the Legislature when it drafted § 3107 and restricted pip benefits under a rule of reasonableness. Moreover, we fail to see the logic behind the Court of Appeals conclusion that it is proper to impose liability upon insurers for unreasonable and unnecessary expenses, in light of its lack of objection to, or, more specifically, its endorsement of, the trial court’s decision to allow defendant to fully contest those issues in a trial on "damages.” Even plaintiff seems to agree that defendant should have a chance to challenge the reasonableness and necessity of incurred expense under § 3107. Yet, how can imposing "liability” upon insurers for all medical. expenses, regardless of whether they fit within the definition of allowable expenses under that section, at all benefit insureds if insurers are nonetheless allowed to attack those expenses at a full trial on "damages”? Of course, the Court of Appeals and plaintiff could hardly argue against that right, for to preclude defendant from contesting the propriety of the medical expenses incurred would make it a virtual guarantor of those expenses, something not contemplated by either the no-fault act or, presumably, the parties’ insurance contract. We also disagree with plaintiff’s argument that our reading of that section will deter prompt payment of no-fault benefits by insurers, one of the goals of the act. An insurer still runs the risk of sanctions under § 3142 of the act if its liability ultimately is established and payments are found to be overdue, a risk which subjects it to an even greater rate of interest on overdue payments if both § 3142 interest and postcomplaint interest under MCL 600.6013; MSA 27A.6013 are awarded. Johnston v DAIIE, 124 Mich App 212; 333 NW2d 517 (1983); Butler v DAIIE, 121 Mich App 727; 329 NW2d 781 (1982). Our reading of §3107 merely guarantees that where defendant opts to run that risk, it is entitled to a jury trial on both liability and damages, to the extent that questions of fact are found to exist. E Our conclusion that the trial court erred in granting plaintiff’s motion on the basis of defendant’s failure to state a valid defense requires that we also conclude that the court erred in finding that there was no issue of fact as to defendant’s liability and that summary disposition pursuant to MCR 2.116(0(10) was proper. That conclusion hinged on the initial determination by the court that "liability” was established simply by showing that plaintiff had been in an accident and incurred expenses. As explained above, the question of defendant’s liability for particular expenses in this case was still very much in issue since it was apparent when the motion was granted that defendant planned vigorously to contest most, if not all, of the expenses incurred as unreasonable or unnecessary. There were indeed questions of fact to be determined in this case._ III MOTION IN LIMINE Defendant also claims that the trial court erred in granting plaintiff’s motion in limine to exclude all evidence of other insurance coverage plaintiff may have received or been entitled to receive. The trial court found that such evidence was barred by both the collateral source rule and MRE 403. The Court of Appeals agreed. The collateral source rule bars evidence of other insurance coverage when introduced for the purpose of mitigating damages. As we explained in Tebo v Havlik, 418 Mich 350, 366; 343 NW2d 181 (1984), "[t]he common-law collateral-source rule provides that the recovery of damages from a tortfeasor is not reduced by the plaintiff’s receipt of money in compensation for his injuries from other sources.” (Emphasis added.) The rule is not an absolute bar to the admission of such evidence, however. Most jurisdictions, for example, recognize an exception to the general rule of exclusion where the evidence is sought to prove malingering or motivation on the plaintiff’s part not to resume employment or to extend the disability. In such cases, the decision to allow the evidence is within the sound discretion of the trial court: Most courts . . . have refused to adopt ... an inflexible exclusionary rule and have instead chosen to regard the admissibility of collateral source benefits evidence for the purpose of establishing malingering, as being a matter at least to some extent within the discretion of the trial judge. [Anno: Admissibility of evidence that injured plaintiff received beneñts from a collateral source, on issue of malingering or motivation to extend period of disability, 47 ALR3d 234, 239-240.] In Michigan, this exception was expressly adopted a number of years ago by the Court of Appeals in Blacha v Gagnon, 47 Mich App 168, 171; 209 NW2d 292 (1973). While the Court in Blacha discussed the rule in the context of wage-continuation benefits, its rationale applies equally as well to situations involving other sources of medical benefits: Evidence introduced in mitigation of damages continues to be inadmissible. However, there are circumstances where evidence may be introduced to show a motive for failure to resume regular employment within a reasonable period of time. Sufficient facts must be adduced which raise serious doubts in the minds of the jurors as to the extent of the injury actually suffered. This foundation established, the proposed evidence must refute the fact that plaintiff actually lost the wages or salary claimed. Taken together, should the trial judge in the exercise of his discretion determine that the evidence affects the weight of testimony introduced to show that plaintiff was disabled from working due to the injury, it will be deemed admissible. [Id., pp 177-178.][ ] Thus, the evidence should be admitted "only if it appears to the trial judge from other evidence that there is a real possibility that plaintiff was motivated by receipt of collateral source benefits to remain inactive as long as he did.” 22 Am Jur 2d, Damages, § 967, p 1004. Moreover, once it is determined that the evidence is being offered for a competent purpose — i.e., as proof of malingering or motivation, rather than in mitigation of damages —the trial court must determine whether, even though relevant, the evidence nonetheless should be excluded as being more prejudicial than probative. MRE 403. In this case, defendant sought the admission of evidence of other insurance coverage to prove plaintiff’s motive for submitting to protracted hospitalizations and extensive medical testing and treatment despite the truly minor nature of the accident. It was defendant’s theory that this was not a case in which a prudent plaintiff wisely had invested in a number of insurance policies to ensure full coverage in the event tragedy struck. Rather, defendant sought to establish a deliberate and fraudulent abuse of the no-fault insurance system. Recognizing the requirement in Blacha that there be a "foundation” for such evidence, defendant presented the trial court with evidence that the minor parking lot accident in which plaintiff allegedly suffered these very severe injuries, which occurred while he was driving a rented automobile, resulted in "almost nonexistent” physical damage to the automobile. Defendant also noted that the plaintiff did not require emergency treatment after the accident, and in fact drove himself not only to Dr. William’s office on the afternoon of the accident, but also to the hospital the next day. At the hospital, every test performed on plaintiff returned negative results except one, which was unrelated to the accident. Immediately after his final hospitalization, plaintiff returned to work, requiring no further treatment. Most important to defendant, however, was its proffered expert testimony that all three of plaintiff’s hospitalizations were unnecessary, as was most of the testing and other treatment received by plaintiff. According to defendant, "the circumstances here involving the likelihood of such a motive [to extend the period of disability] are quite clear, or at least should be . . . available to the jury.” The trial court found that the collateral source rule "applied” to bar the evidence. Although it briefly mentioned defendant’s motive argument, as well as the MRE 403 balancing test, it is apparent from a review of the trial court’s opinion that it believed this case to be a straightforward application of the collateral source rule. The trial court found that plaintiff had every right to "double-dip,” since he had paid for an uncoordinated no-fault policy and for the excess insurance coverage. It made no attempt to examine the circumstances presented by defendant to determine whether they established a real possibility that plaintiff was motivated to remain hospitalized or under treatment by his continued receipt of collateral source benefits. Nor did it elaborate in any way upon its conclusion that MRE 403 precluded this evidence because its possible prejudicial effect outweighed its probative value. Since we have reversed the decision of the trial court with respect to its grant of summary disposition as to liability, thus requiring the case to return to that court for further proceedings, we need not resolve the application of the above-stated "exception” to the collateral source rule in this case. We do observe, however, that the trial court’s decision on plaintiff’s motion to exclude this evidence was quite summary. On remand, we suggest that it reconsider defendant’s argument that the evidence of the collateral sources of insurance is offered to prove malingering or exaggeration of injuries by plaintiff, rather than in mitigation of damages. It would not be inappropriate for the court to supplement its findings in light of our discussion above. CONCLUSION We conclude that the trial court improperly granted summary disposition with regard to liability in this case. The reasonableness and necessity of the particular expenses incurred by plaintiff are relevant to the question of defendant’s "liability” under §3107. Thus, defendant did state a valid defense to plaintiff’s breach of contract claim, and genuine questions of material fact did therefore exist with respect to its liability. The decision of the Court of Appeals is reversed, and the cause is remanded to the trial court for a new trial on plaintiff’s breach of contract claim. On remand, the trial court should reconsider the admissibility of the evidence regarding plaintiff’s collateral sources of insurance in light of our discussion of the above-stated exception to the collateral source rule, where the evidence is offered for a purpose other than mitigating damages. Riley, C.J., and Levin, Brickley, Cavanagh, and Griffin, JJ., concurred with Boyle, J. Defendant thought that plaintiff had received duplicate medical benefits from Blue Cross and Blue Shield, and was covered under perhaps as many as four other insurance policies as well. See below, post, pp 58-63. I do believe that, after reading the deposition of Dr. Pollack [sic], who, basically, through his deposition enlightened the Court that he would have given different types of medical treatment, I do not believe that the medical treatment rendered to this particular plaintiff was unreasonable medical treatment, but I do believe it to be reasonable. I do also believe that the amount of medical expenses that were incurred to this plaintiff in the amount of $25,059.29 were, in fact, reasonable. [Emphasis added.] Plaintiff had cross appealed the trial court’s refusal to grant interest pursuant to § 3142. The Court of Appeals concluded that such interest was mandatory so long as plaintiff had submitted timely reasonable proof of injury and the amount of loss sustained, citing Bradley v DAIIE, 130 Mich App 34; 343 NW2d 506 (1983). Plaintiff did not, however, appeal the trial court’s failure to find damages on the basis of the defendant’s "outrageous” conduct in refusing to pay the expenses. We note, however, that Justice Archer’s dissenting opinion adopts the position taken by plaintiff with respect to the posture of this case. While we cannot quarrel with many of the propositions stated by Justice Archer, we find that they are of little or no relevance to our resolution of this case in light of our vastly different reading of what actually happened in the courts below. Defendant also specifically denied each of the claims contained in the second count of plaintiff’s complaint, alleging emotional distress. See, e.g., 7 Callaghan’s Michigan Pleading & Practice (2d ed), §43.04.30, p 23, stating that "[t]he test on a motion for summary disposition based on the failure of the defendant to state a valid defense is whether the defenses are so clearly untenable as a matter of law that no factual development could possibly deny the plaintiff’s right to recover.” Our reading of § 3107 as a liability provision is supported, in our view, by § 3110(4) of the act, which states that pip benefits "accrue not when the injury occurs but as the allowable expense ... is incurred.” (Emphasis added.) Restated, § 3110(4) provides that pip benefits accrue only for allowable — i.e., reasonable and necessary — expenses. To the extent that any expense incurred is not allowable, no benefit has accrued to the claimant and no liability can attach to the insurer. Defendant also argues that it waived its right to a jury trial on the assumption that the trial court would only allow it to contest the reasonableness of the charges, and not the actual necessity of the products received and services rendered. While we need not address this argument, given our resolution of this case, we do note that the relative lack of evidence it presented at the trial on "damages” tends to confirm this belief, as does the trial court’s perfunctory conclusion that the medical treatment rendered was "reasonable,” with no discussion of the necessity of particular products or services. We would not fault defendant, for example, for questioning whether the evidence regarding plaintiff’s alleged participation in fraud would be admissible to the same extent in a trial limited to damages issues as in a trial on liability; i.e., whether it would be able to present to. the jury the evidence that the car had been rented, that there was almost no physical damage to it, that plaintiff drove himself to the hospital on the day after the accident, or that he returned to work immediately after his last hospitalization, without ever returning to see Dr. William for so much as a checkup. We question, in any event, the Court of Appeals apparent conclusion that if the insurer is not made liable for even unreasonable and unnecessary expenses it will inevitably fall to plaintiff to pay those expenses. To the extent that plaintiff has any liability for these expenses in the event his insurance does not pay, it is presumably contractual. It seems unlikely that plaintiff would have an express agreement with Dr. William or the hospital to pay unreasonable and unnecessary medical expenses, and equally as unlikely that he would have an implied contractual duty to do so. See 61 Am Jur 2d, Physicians, Surgeons, and Other Healers, § 158, pp 290-291. And, while we need not resolve the issue in this case, it seems unlikely that medical expenses found to be unreasonable or unnecessary in a no-fault action would be found recoverable in a contract action against plaintiff. Arguably, it is the Court of Appeals reading of the statute that would tend to deter prompt payment of medical expenses by insurers. The Court of Appeals opinions in this case suggest that where liability for at least some of the expenses is established the insurer can no longer contest its liability with regard to any other expenses. It would certainly seem to be against the insurer’s best interests, therefore, to pay even those medical bills that it might otherwise not contest if to do so would preclude it from challenging its liability for others. See also McMiddleton v Otis Elevator Co, 139 Mich App 418, 430; 362 NW2d 812 (1984) (the plaintiff’s receipt of workers’ compensation insurance benefits was admissible to prove that he had "little incentive to return to work”); Cole v DAIIE, 137 Mich App 603, 611; 357 NW2d 898 (1984); Gallaway v Chrysler Corp, 105 Mich App 1, 7; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982) ("[w]here the introduction of evidence concerning collateral benefits has bearing on some purpose other than the question of mitigating benefits, it is admissible”). It is, of course, possible for the trial court to reduce the prejudicial effect of the evidence through a curative instruction. As the Court in Blacha, supra, p 178, indicated, the trial court must be careful to "instruct the jury as to each of the theories of recovery advanced by the opposing parties, clearly advising that if plaintiff’s contention is believed,” the other evidence may not serve "to mitigate damages.” The trial court’s opinion on plaintiff’s motion in limine states, in relevant part: I do believe, after reading both the motion and the response and both briefs, that due to this Court’s understanding of the collateral source rule, and due to defense counsel’s request to show motive as a result of the allegations and the counts that plaintiff has made in this particular case, I do believe that the collateral source rule should, in fact, apply in this particular instance. This Court is going to preclude the injection of the issue of simultaneous coverage. I don’t think it makes apy difference whether another insurance company paid for the benefits; whether a good Samaritan came along and paid for the medical expenses of this particular plaintiff. I think if this Court looks at the 403 balancing test, in dealing with the prejudicial effect outweighing the probative value, I think that this particular jury would look at this as a mitigation issue, even though this Court might attempt to cure that particular issue by giving a non-mitigation instruction. I think that this jury would be of the impression that since all the expenses were, in fact, paid for him, that there is no harm and this particular plaintiff should not be entitled to any of the benefits that he went out and paid for. It is my understanding that this particular contract between the plaintiff and aaa is one that is not of coordinated benefits. That both plaintiff and aaa went into this contract negotiations [sic] with open eyes; that the plaintiff paid certain sums of money for this particular contract. This defendant received the benefits of the premiums and now the defendant has found out that there is, in fact, another policy out there, that the benefits, the medical benefits, the medical expenses were, in fact, paid by another policy and now this defendant wants to take advantage of this particular policy and let this particular jury know about that. When using the term "double-dipping,” I think that that is, in fact, a term that should be applied to this particular issue; that the plaintiff wanted to have the best possible coverage; that he went out and did, in fact, get two insurance policies. That he had the right, if I can use the word, to "double-dip.” He paid for this particular request of double-dipping. I don’t think that aaa should now rely on Blue Cross and Blue Shield, just because Blue Cross and Blue Shield has paid these particular medical expenses. Based on your arguments today, gentlemen, this Court is going to invoke that collateral source rule and preclude aaa from mentioning, or bringing up, the fact that Blue Cross-Blue Shield paid these benefits.

Fellows, J. Plaintiff is a corporation organized for the purpose of building and maintaining a Masonic Temple in the city of Kalamazoo. Its officers were authorized to sell its stock to members of the fraternity only but they were authorized to accept donations from others. On September 11, 1914, Edmund S. Rankin was president of the association, Washington W. Olin its treasurer, and deceased, Hutson B. Col-man, a member of its board of directors. Mr. Col-man was prominently identified with the Masonic fraternity and the association and owned considerable stock in the corporation. William S. Lawrence was in his lifetime also a prominent member of the Masonic fraternity. He was deceased at the time of the building of the temple. His widow, Malinda J. Lawrence, lived at Galesburg, a short distance from Kalamazoo. On the day above noted Mr. Rankin, Mr. Olin and Mr. Colman went to Galesburg to solicit a donation to the association from Mrs. Lawrence in memory of her deceased husband. In the presence of Mr. Rankin and Mr. Olin, president and treasurer of the association, Mr. Colman stated to Mrs. Lawrence that if she would donate $1,000 to the association in memory of her deceased husband he would increase his subscription in the same amount. • Mrs. Lawrence made the donation. After Mr. Colman’s death this claim for $1,000 was filed against his estate. It was allowed by both the probate court and circuit court, the trial in the circuit being before the court without a jury. It is first insisted that the testimony of Mrs. Lawrence as to the transaction is incompetent under section 12553, 3 Comp. Laws 1915. No question of the statute of frauds is involved, nor is any claim made that Mrs. Lawrence was the agent of the association. What is claimed is that she was the “opposite party” within the meaning of the section above cited. Counsel for the estate thus state their position: “The opposite party does not necessarily mean a party to the record, but it means any person whose interests are as a matter of fact antagonistic to the interests of those for whose benefit the statute was passed. Perkins on Evidence by Survivor, p. 18; O’Neil v. Greenwood, 106 Mich. 572; Laird v. Laird, 115 Mich. 352; Chaddock v. Chaddock, 134 Mich. 48; Ayres v. Short, 142 Mich. 501; Abbott v. Jones, 164 Mich. 598. “The real test is as to whether the witness will gain or lose financially, directly or indirectly, by the judgment in the pending case.” We do not take issue with counsel as to the rule. Judge Perkins, at the page cited, says: “An ‘opposite party’ may be defined to be one whose personal and financial interests, either immediate or remote, are in antagonism to the like interests of a protected party to the controversy. A protected party is one named in the statute as a person entitled to its protection. Where both parties are protected, and have such adverse interests in the result as indicated, each is an ‘opposite party’ to the other, and neither can testify to prohibited matters.” The cases from this court cited by counsel are somewhat typical of the several hundred cases in which we have considered this statute. O’Neil v. Greenwood, supra, was a suit prosecuted against the assigns of decedent by the representatives of his estate. It was held that the heir at law was not a competent witness. The financial interest of the heir at law was opposed to that of the assigns. In Laird v. Laird, Chaddock v. Chaddock and Ayres v. Short, supra, real estate was involved and it was held in each case that the wife by reason of her inchoate right of dower had such' a financial interest in the controversy as to preclude her from giving testimony of facts equally within the knowledge of the deceased. In Abbott v. Jones, supra, the dower interest had been fixed by the death of defendant’s husband and it was held that she could not testify. But in the instant case we fail to perceive that Mrs. Lawrence has any financial interest in the result. She is not a stockholder of plaintiff, did not and could not become a stockholder. Her contribution to the building of the temple was a donation, and her interest, if she has any in the outcome of this suit, is purely sentimental. Such interest is not within the purview of the statute. She was a competent witness. But it is insisted that assuming all that Mrs. Lawrence testified to took place still plaintiff is not entitled to recover, that if deceased made the promise testified to by her, it was a promise to Mrs. Lawrence for the benefit of plaintiff, the consideration for which was furnished by her and that under such circumstances plaintiff being a third party, a stranger to the consideration, cannot recover under the holding in Knights of Modern Maccabees v. Sharp, 163 Mich. 449 (33 L. R. A. [N. S.] 780), and cases there cited. Upon the argument counsel were asked to file briefs on the question of whether the rule contended for had been changed by section 2, chapter 12 of the judicature act (3 Comp. Laws 1915, § 12353). Such briefs have been filed but upon a full consideration of the case we do not deem it necessary to decide that question to dispose of the case. We are all agreed that the case of Preston v. Preston, 207 Mich. 681, is controlling. An examination of this case together with the original opinion (205 Mich. 646) discloses that the promise there relied upon was made to the mother of the plaintiff and that the mother furnished the consideration. The plaintiff was a blind girl and the promise was for her benefit and was made in her presence. We there said: “It thus appears that when the agreement was made the party for whose benefit it was made was present and that it was in her hearing and within the confines of a small room. She was unable to see, but she clearly heard her father say in her presence that he would agree to the proposition as stated by the mother. Can it be said that under these circumstances the plaintiff was not privy to the contract? And was not, in effect, in the situation thus created, the promise made by the father directly to the blind girl? “We are of the opinion that the plaintiff was, under these circumstances, a party to the contract and that the situation comes under the exception to the rule referred to in the Maccabee Case, supra, and announced by this court in the case of Palmer v. Bray, 136 Mich. 85. For a recent discussion of the New York rule, with reference to exceptions of this kind, see Seaver v. Ransom, 224 N. Y. 233 (120 N. E. 639, 2 A. L. R. 1187).” This case was cited and followed in Bassett v. Publication Society, 215 Mich. 126 (15 A. L. R. 213). In the instant case the promise was made in the presence of the president and treasurer of plaintiff; it was made by and in the presence of the deceased who was a director of the association. It was as much of a promise to the association as though Mr. Colman had said to the officers: “I will increase my subscription $1,000 if Mrs. Lawrence will donate $1,000.” It was such a promise under the holding in the Preston Case as authorized a recovery in the instant case. The trial judge found that it was made. The testimony of Mrs. Lawrence which supports such finding being competent, and there being no other evidence on the subject, we must affirm the judgment. Wiest, C. J., and Clark, Bird, Moore, and Steere, JJ., concurred. McDonald and Sharpe, JJ., did not sit.

FELLOWS, J. (after stating the facts). But two questions require consideration. The trial judge instructed the jury: “If you find for the plaintiff you will proceed to estimate his damages. The measure of the plaintiff’s damages will be the highest market value of the stock at any time during which it was wrongfully withheld from him.” This instruction is not in accordance with the rule adopted by this court in Vos v. Child, Hulswit & Co., 171 Mich. 595 (43 L. R. A. [N. S.] 368), and followed in Wallace v. H. W. Noble & Co., 203 Mich. 58. The rule there announced and which is applicable here is that the plaintiff was entitled to recover on the basis of the highest market price reached by the stock between the time of its conversion and the expiration of a reasonable time to enable him to purchase other shares in the market. The instruction in the instant case was erroneous, went beyond this rule and allowed a recovery on the basis of the highest market price during all the time the stock was withheld from plaintiff and evidence was admitted showing the highest market price over an extended period, which period can not be said as matter of law to be a reasonable time within which to repurchase the stock in view of the dispute as to the time plaintiff learned of the conversion. The cases cited fully discuss the rule and the reason for the rule and render it unnecessary to repeat what will be there found. Defendant’s counsel by preferred requests sought to limit defendant’s liability to that of a gratuitous bailee. We think these requests were properly refused. If the defendant’s theory of the case was true, defendant was not the bailee of the plaintiff but the bailee of Ludwig; if plaintiff’s theory was true, defendant was not a gratuitous bailee, there was a consideration moving to it for the bailment. The claim of the plaintiff, if true, established the fact that the stock left with the bank on May 9th became additional security to the bank for plaintiff’s loan; it was not to be surrendered except upon payment of the purchase price to the bank, which purchase price was to be -applied on plaintiff’s note. Under these circumstances there was a consideration moving to the defendant and the rules appropriate to the liability of a gratuitous bailee are not applicable. For the error pointed out the case must be reversed with a new trial. Defendant will recover costs of this court. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Sharpe, J. In 1906, George H. Purchase, defendant’s husband, induced a number of persons to pay to him certain moneys for the purpose of acquiring a lease on land then being prospected for oil in the Province of Ontario. In Mast v. Purchase, 163 Mich. 35, a decree declaring the moneys so paid to the amount of $11,092.30 to be a trust fund and finding that Purchase had unlawfully appropriated such moneys to his own use was affirmed by this court. Purchase died February 10, 1914. On June 21, 1919, plaintiff, who had been appointed by the court a receiver to collect such moneys, filed this bill of complaint, claiming that such trust funds were used by Purchase in the purchase of certain premises in Detroit known as the Alhambra apartments, the title to which had been taken in his name and that of defendant, his widow, as tenants by the entireties, and praying that such property be impressed with the trust and defendant be required to account for the same. It further appears that Purchase had, in his lifetime, been imprisoned under an execution against the body, issued on the decree in the Mast Case. The trial court held that such imprisonment paid the decree and dismissed the bill. On appeal, this holding was reversed ■ and the cause remanded. Stephenson v. Purchase, 214 Mich. 95 (14 A. L. R. 496). Proofs were thereafter taken. It appeared in the proofs that plaintiff had, some time after the death of Purchase,' been appointed administrator of his estate. The trial court held that plaintiff had failed to trace any part of the trust fund into the moneys with which the Alhambra apartments were purchased; that as receiver he had no authority after the death of Purchase to file a judgment creditors’ bill, and that the bill filed could not be so treated. He denied the petition of plaintiff to amend the bill so as to make himself as administrator a party thereto. From a decree dismissing the bill plaintiff appeals. The decree against Purchase to recover these trust funds has not been paid and if, under the facts established by the proofs, we may compel payment out of this property in which Purchase had invested a large sum of his own money, without violating well-established legal or equitable rules, we should do so. The Trust Fund. The trial court found, as already stated, that there was no proof that any part of the trust fund was used in the purchase of the Alhambra apartments. The defendant produced the books kept by or for Purchase which related to his business matters after such trust moneys were received by him in 1906. The Alhambra apartments were purchased from Fred Slocum and wife on January 9, 1908. Ralph J. Meyering acted as agent for the Slocums in making the sale. He identified an unsigned memorandum which purported to show how the consideration was paid by Purchase. While differing in some particulars, it is in effect the same as the following entries pertaining thereto found in Purchase’s books: Field avenue $10,000.00 Lafayette .. 10,000.00 Pitcher .................................... $3,500.00 Trumbull .................................. 7,500.00 Dime Savings Bank mortgage......•.......... ' 35,000.00 Ducy mortgage ............................. 13,000.00 Cheseman and Slocum mortgage,............. 5,000.00 Maybury note ................ 877.50 Taxes paid ................................ 1,059.78 Cash paid.................................. 3,998.82 Credit to Purchase on adjustment of rents, etc. 1,263.90 $91,200.00 It is defendant’s claim that plaintiff’s proofs not only fail.to show that any of the trust moneys entered into this purchase, but that the proofs as a whole clearly establish that they did not. The Field avenue property was acquired in 1904, the title having been taken in the names of Purchase and his wife. On January 9, 1908, the day the purchase of the Alhambra apartments was made, they mortgaged this property to Ida Morris for $5,000 and turned it in to Slocum for $10,000 subject to the mortgage. The Lafayette property was acquired by deed on October 29,1907. This and the Maybury note listed above were taken in exchange for the Linfield apartments, which had been acquired on September 13, 1907. As a part consideration on the purchase of the latter he paid $13,000 in cash; $10,000 of this he borrowed from the People’s State Bank on collateral furnished by Mr. Ostrander, his father-in-law, and $2,000 from Mr. Ostrander personally. For these and other loans made by Ostrander, Purchase deeded to him as security the Pitcher and Trumbull properties and Ostrander deeded them to Slocum when the Alhambra apartments were purchased. The Pitcher property was acquired on June 1, 1906, in exchange for lots , which the Purchases had owned for several years. The Trumbull property was also acquired on June 1, 1906. The money paid as a cash payment was a part of that secured from the Morris mortgage on the Field avenue property. It is clear from the opinion in Mast v. Purchase, supra, that all of the trust fund, was received by Purchase in August, 1906, and later. We are unable to find any proof from which a finding could be made that any of the trust moneys entered into the consideration paid on the purchase of the Alhambra apartments. Plaintiff’s counsel claims that the proofs do show that considerable sums were expended in taxes and repairs upon the properties turned in, “running into hundreds of dollars,” and counsel says that a part of these trust funds may have been used for such purpose. The proofs must justify a finding that such moneys were so expended and the amount thereof. The conclusion reached renders it unnecessary to discuss the claim of plaintiff’s counsel that if Purchase mingled the trust fund in his business with moneys otherwise obtained, the whole thereof, or any investment made therewith, would be impressed with the trust. Plaintiff’s Rights as a Judgment Creditor. No claim is made that plaintiff as receiver has any greater or other rights as a mere creditor of the estate of Purchase than any of his other creditors. The fact that he represents several creditors, and of a particular class, gives him no rights other than those which every individual creditor possesses. Under section 13859, 3 Comp. Laws 1915, it is made the duty of an administrator, where there is a deficiency of assets, to take proper proceedings for the recovery of any property which has been conveyed by the deceased in his lifetime in fraud of his creditors. On his refusal to do so, any creditor, on complying with certain prescribed conditions, may bring such proceeding in the name of the administrator. There was no refusal on the part of the administrator. In fact, it appears in the record that he now has a judgment creditors’ bill pending against the defendant in which such relief is sought. If we should treat the bill filed herein as a judgment creditors’ bill, as urged by plaintiff’s counsel, he would not be entitled to relief thereunder. Should the Petition of the Administrator asking to be made a Party have been Granted? The power of a trial court to permit amendments under sections 12478 and 12364 is very broad, and such amendments should always be permitted when the ends of justice so require. If plaintiff as receiver had no right to file a judgment creditors’ bill, it would be novel in court procedure to permit an administrator to be joined either as plaintiff or defendant and claim rights to which the plaintiff is not entitled. Moneys or property recovered by the administrator would accrue to the estate for the benefit of general creditors. Plaintiff’s claim rests on his right to recover in preference to such creditors. The amendment would in effect substitute the administrator for the receiver as plaintiff. We do not think the statute, liberally as it has always been construed, justified the amendment asked for. The decree is affirmed, with costs to appellee. Wiest, C. J., and McDonald, Clark, Bird, Moore, and Steere, JJ., concurred with Sharpe, J. Fellows, J., concurred in the result.

Wiest, C. J. In July, 1919, the common council of the city of Detroit adopted the following ordinance: “An ordinance to regulate and license the business of selling jewelry, other than second-hand jewelry, in the city of Detroit. “Section 1. No person, firm or corporation shall engage in the business of selling jewelry, other than second-hand jewelry, without first having obtained a license from the mayor of the city of Detroit. “Sec. 2. Any person, firm or corporation desiring to engage in the business of selling jewelry shall make application in writing to the mayor of the city of Detroit, stating the location in which he desires to engage in business, and containing an agreement on the part of the applicant that he will accept the license, if granted him, and that it may be revoked at the will of the mayor. ■ “Before granting a license it shall be the duty of the mayor to require a sufficient surety bond in the amount of two hundred ($200) dollars to cover any loss or damage to any citizen doing business with such licensee. A fee of one ($1.00) dollar shall be charged for the issuance of this license which shall be granted for •& period of one year, but all licenses shall expire July first of each year. “When complaint is made to the mayor that property has been lost or misrepresented by said licensee, or any person acting in his behalf, it shall be his duty to make inquiry into the circumstances surrounding such loss or misrepresentation and adjust same or revoke such license if such action' is warranted by the facts. No licensee under this ordinance shall by virtue of one license maintain or conduct more than one place of business for the selling of jewelry as mentioned in section 1. < “Sec. 3. If any licensee operating under the provisions of this ordinance shall violate or fail to comply with' any of the provisions of said ordinance applicable to such licensee, such act mentioned on the part of such licensee shall be cause for revocation of such license. _ “Sec. 4. Any person, firm or corporation who shall violate any of the provisions of this ordinance or shall fail to comply with same, shall, upon conviction thereof be punished by a fine of not less than twenty-five ($25) dollars or more than one hundred ($100) dollars or by imprisonment in the Detroit house of correction for a period of not less than thirty days .or more than ninety days or by both such fine and imprisonment, in the discretion of the court. “Sec. 5. This ordinance does not in any way affect Ordinance No. 617-A entitled An ordinance to regulate and license the buying and selling of second-hand jewelry and similar articles,’ which said ordinance shall remain in full force and effect as heretofore.” Plaintiffs, as copartners, are now and for some time have been engaged in the retail jewelry business on Woodward avenue in the city of Detroit. They are not engaged in selling second-hand jewelry. They have no license, and have been complained against, in the recorder’s court for the city of Detroit, for conducting their business without a license. They filed the bill herein to restrain the officials of the city from prosecuting the pending complaints and from illegally causing detectives to enter and remain in their store to talk with and discourage customers from making purchases; They claim the ordinance is void. This ordinance was before us in Samuels v. Couzens, 215 Mich. 328, where a majority of the court held that its validity- was not then up for consideration. The learned circuit judge held: “The ordinance states no standard for the guidance of the mayor and prescribes no requirements or conditions under which a license may issue. By the construction placed upon it by the Supreme Court, the ordinance delegates uncontrolled licensing power to the mayor, and so long as it cannot be said that his action is unreasonable, he is bound by no limitations or restrictions. The jewelry business is not a public business in the sense that in itself it is subject to regulation under the police power. On this record, it is admitted that plaintiffs are conducting their business in a lawful and legitimate manner. There is no proof in the case which would justify the regulation of this business any more than any other mercantile pursuit. There is nothing in it hostile to the comfort, health, morals or even convenience of the community. There may be dishonest persons selling jewelry as there may be dishonest sellers of shoes and hardware. I question very seriously the power to regulate it at all unless it can be said that every business and occupation are subject to license and regulation under the police power. Certainly there should be some showing of some out of the ordinary conditions attending the sale of jewelry which affects the public health, peace or safety before an ordinance of this kind is sustained. * * * “Because the ordinance does not define these conditions and requirements, and because there is nothing in the nature of the business involved which, in my opinion, justifies the ordinance under the police power, I am constrained to hold it invalid. A decree may be entered in favor of plaintiffs as prayed.” We find no occasion to determine whether the city, under the police power, may place the operation of jewelry stores under license, nor to take up the question of the extent of the police power delegated to the city. Considering, for the purposes of this case, that all the police power of the State, over the subject of regulating trades, occupations and professions, to be in the city, the ordinance must be held void. This ordinance is too indefinite to send any authority to the administrative officers of the city; it declares no policy to be carried out in the interest of the public health, peace, morals or welfare; provides no regulations, and grants, without curb or declaration of legislative purpose, arbitrary power to./the mayor under which he may license or refuse to license at will. In undertaking to regulate a trade or business an ordinance should, at least, express an idea upon the subject of regulation and not leave to an administrative officer the formulation of a policy wholly legislative in origin and nature. This ordinance is no more than a delegation of an exercise of the police power to the arbitrary will of the mayor; because it defines no public policy or purpose, does not speak in regulatory terms, conveys no idea of an end desired, avows no object to be accomplished by way of means prescribed, saves no rights to persons wanting to engage in the legitimate business of retailing jewelry, for it fixes no conditions to be met, and so offends against elementary principles governing delegated administra tive functions under the police power as to render it wholly void.' Authority supporting this holding is set out in the minority opinion in Samuels v. Couzens, supra, and need not be repeated here. The decree entered in the circuit is affirmed. The question being one of public moment, no costs will be awarded. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Clark, J. Defendant has appealed from a decree for divorce. The parties were married in December, 1918, and separated nearly four years later. They have no children. Plaintiff filed a bill for divorce in April, 1918, on the ground of extreme and repeated cruelty. In July, 1918, after answer and hearing, the bill was dismissed. Three years later the present bill was filed. It sets up new ground of extreme and repeated cruelty that defendant had made a false affidavit for the purpose of procuring the indictment of plaintiff for his having unlawfully and feloniously conspired with another that plaintiff should evade the requirements of an act of congress and the regulations of the President respecting selective service. The bill also charged the spreading and the causing to be spread of false and malicious propaganda against plaintiff as regards his patriotism and loyalty. There are over 300 pages of testimony relating principally to the claimed activities of defendant and her brother in this regard. Space forbids a review of such testimony. Plaintiff was indicted. The indictment was quashed. The matter was given publicity. Plaintiff says that he has been injured in his business and has suffered shame and humiliation and mental anguish. He was called to the service and at the time of his honorable-discharge had been commissioned second lieutenant. A careful reading of the record satisfies us that the trial judge was right in stating in an opinion filed: “Plaintiff has established by a preponderance of the evidence sufficient acts of cruelty charged in his present bill of complaint to entitle him to an absolute divorce from defendant. These acts of cruelty consist in the making of the affidavit in evidence (defendant’s affidavit). * * * “It was, in my judgment, voluntarily and unnecessarily made and contained statements purporting to be facts which were not true and made to injure, degrade and humiliate plaintiff. “I am satisfied defendant made this affidavit intending that it should be used against plaintiff, and made it to be used with other alleged facts that were to be furnished by her brother, Harry, through certain investigators, to the United States district attorney as, the basis of an indictment to be brought against plainiff charging him falsely with unlawfully evading the. selective service regulations of the government in 1917' and 1918 and with a conspiracy with one Howard F.. Johnson and others to commit an offense against the-government of the United States as charged in a. certain indictment against plaintiff in March term of the United States district court for the western district of Michigan, southern .division. “Defendant’s activities in other ways against plaintiff during the time plaintiff was under investigation respecting the charges against his loyalty to his government jn 1917 and 1918 were, in my judgment, of a character properly characterized as extreme cruelty.” In finding ground for divorce we think the opinion of the trial court is sustained by authority. Whitmore v. Whitmore, 49 Mich. 417; Menzer v. Menzer, 83 Mich. 319, 321 (21 Am. St. Rep. 605); Campbell v. Campbell, 149 Mich. 147 (119 Am. St. Rep. 660); Palmer v. Palmer, 45 Mich. 150 (40 Am. Rep. 461); Delor v. Delor, 159 Mich. 624. Defendant complains of the award of permanent alimony which was, in gross, the sum of $5,000. It seems that plaintiff at one time owned shares of stock and other property in an aggregate of about $99,000. But later, he testified, to meet the requirements of a decree against him and certain corporations in which he was interested and other stockholders, his holdings were adjusted so that at the time of decree he owned as follows: Stock in the Grand Rapids Dry Goods Company: Preferred .................................$19,100.00 Common .................................. 27,320.00 Liberty bonds ............................... 650.00 •Summer cottage ............................. 2,100.00 Stock in the Highlands Golf Club............ 200.00 ‘Two automobiles ............................ 1,350.00 ■Contracts (on houses in Grand Rapids)...... 5,385.44 Equity in farm ............................. 8,360.00 Notes of Grand Rapids Dry Goods Co......... 20,000.00 Note of Grand Rapids Dry Goods Co.......... 2,300.00 Total ...................................$86,765.44 The corporation named was regarded by plaintiff, it seems, largely as his personal enterprise. He was liable as indorser upon its notes and upon the obligations of other corporations in a sum approximating -$117,000 to secure the payment of which much of his .property has been pledged. He has personal debts 'in the sum of several thousand dollars. The evidence covers the financial condition of these 'corporations. The probability of plaintiff’s having to pay the notes so indorsed is discussed by counsel. It was the opinion of the trial judge: “Such indorsements are upon such claims of indebtedness as to make it very certain that such liabilities are more than the ordinary contingent liabilities.” Defendant was employed at the time of the hearing as a stenographer and received $100 per month. But plaintiff’s income has been such that sums in excess of $1,000 have been required annually to pay his income tax. The defendant’s right of dower in his lands is a considerable item. With due regard for the hazards of plaintiff’s business and upon full consideration of his financial affairs, we think the award insufficient. It will be increased to $10,000. Defend ant will recover costs of this court including an attorney fee of $500, but plaintiff will have credit for $600 expense money heretofore allowed in this court. The decree, so modified, is affirmed. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Fellows, J. (after stating the facts) '. The conflicting testimony took the question of defendant’s negligence to the jury. We do not understand this to be controverted. Two important questions require consideration; they are: (1) Should the court have held as matter of law that plaintiff was guilty of contributory negligence? and (2) Did defendant owe plaintiff the statutory duty when approaching him in the highway required by section 4818, 1 Comp. Laws 1915? Numerous decisions of courts of last resort hold, and we think they should be followed, that one injured while momentarily standing in the highway and when not in motion is not per se guilty of contributory negligence, and that the offending party is not exonerated from all duty and from liability by the fact that he is not in motion. Among them see Dervin v. Frenier, 91 Vt. 398 (100 Atl. 760); Wells v. Shepard, 135 Ark. 466 (205 S. W. 806); Kathmeyer v. Mehl (N. J.), 60 Atl. 40; Deitchler v. Ball, 99 Wash, 483 (170 Pac. 123); Bursaw v. Plenge, 144 Minn. 459 (175 N. W. 1004); Kaminski v. Fournier, 235 Mass, 51 (126 N. E. 279); Walden v. Stone (Mo. App.), 223 S. W. 136; Reisinger v. McConnell, 265 Pa. 565 (109 Atl. 280); Regan v. Cold Storage Co., 46 Cal. App. 513 (189 Pac. 474); Posener v. Long (Tex. Civ. App.), 156 S. W. 591; Humes v. Schaller, 39 R. I. 519 (99 Atl. 55, L. R. A. 1917B, 316). Nor do we think it can be said as matter of law that plaintiff under the facts of this case was guilty of contributory negligence. He testifies that before going out into the' street he looked both ways to ascertain if any vehicle was coming and that less than a- minute before he: was struck he looked both ways a second time. If ■defendant was driving as fast as some of the witnesses ^ay he was, he doubtless was out of plaintiff’s line ■H)f vision when he looked the second time. The trial judge did not err in declining to direct a verdict for the defendant on the ground of plaintiff’s contributory-negligence. Under the proofs that question was for the jury. Various acts of negligence were counted on in plaintiff’s declaration, including defendant’s claimed breach of duty to pedestrians under the statute above cited, and the ease was submitted to the jury upon the question, among others, of whether defendant had breached such statutory duty to pedestrians, and the jury were told that if they so found plaintiff could recover if they also found that he was free from contributory negligence. It is insisted on behalf of defendant that inasmuch as the statute uses the word “walking,” it should be limited in its application to persons in motion and that plaintiff, not having been in motion but standing still beside the truck when struck, is not within its protection. We think such construction too narrow. It overlooks the rights of pedestrians in the highway and is subversive of the plain purpose of the legislature. In the case ' of Dervin v. Frenier, supra, the defendant had run over plaintiff, a boy 16 years of age, who was playing in the street, but who at the time of the accident was temporarily standing still. It was there said by the court: “True it is that streets and highways are not established for playgrounds, and such use of them is not to-be encouraged; but children always have and always will put them to that use to some extent, and they do not thereby become outlaws -or trespassers, or necessarily forfeit their rights therein as travelers.” In Smethurst v. Barton Square Church, 148 Mass. 261 (19 N. E. 387, 2 L. R. A. 695, 12 Am. St. Rep. 550), the following significant language was used: “In order to be a traveler, it is not necessary that one should be constantly moving, if he is a pedestrian, or that the vehicle he drives, or that in which he is conveying goods, if he is using one, shall be continuously in motion. It would certainly be impossible to use the highways conveniently for the ordinary purposes of business or social life with teams or lighter carriages, if occasional stops- were not permitted to enable those using them to load and unload teams, to receive and deliver goods, to enter shops and stores, and to make brief calls of business or even of a social character. During these stops, if reasonable in duration, one should not lose his rights as a traveler, and the protection thus afforded to his person or property.” In the recent case of Hanser v. Youngs, 212 Mich. 508, this court had before it the construction of another provision of the automobile law designed for the safety of the public. We there declined to give it a narrow, limited construction but held that it was to be liberally construed, and following the holdings of the supreme courts of Washington, Massachusetts, and Connecticut (Jaquith v. Worden, 73 Wash. 349 [132 Pac. 33, 48 L. R. A. (N. S.) 827]; Commonwealth v. Henry, 229 Mass. 19 [118 N. E. 224, L. R. A. 1918B, 827]; Stroud v. Water Commissioners, 90 Conn. 412 [97 Atl. 336]), and declining to follow the supreme court of Iowa (City of Harlan v. Kraschel, 164 Iowa, 667 [146 N. W. 463]), we held, quoting from the syllabus: “1 Comp. Laws 1915, § 4812, requiring every motor vehicle operated and driven upon the public highways to display front and rear lights, construed, and held, to apply to a disabled truck temporarily standing in the traveled portion of the highway and not under motion.” The provisions of the automobile law regulating their use upon the highway are largely designed to protect life and limb and should not .receive too narrow a construction. Plaintiff “walked” upon the highway as he had a right to do, and momentarily stopped to negotiate a ride to Birmingham. We are not persuaded that by momentarily standing still he put himself without the protection of the statute. The instructions of the court on this branch of the case were not erroneous. The other assignments of error have been considered but need not be discussed. There is no reversible error on the record, and the judgment will be affirmed. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Moore, J. This is a suit to restrain the use of property for business purposes in violation of restrictions. Prior to 1916 plaintiffs owned land at and near the cornor of Parkview and Jefferson avenues in the city of Detroit, as follows: (1) The southeast corner of Parkview and Jefferson avenues with a frontage on Parkview of 400 feet and with a frontage on Jefferson avenue of about 100 feet. (2) The Joseph H. Berry subdivision at the southwest corner of Parkview and Jefferson avenues and running from Jefferson avenue to Detroit river, containing 118 lots, and which is directly across the street from the apartment house later erected by the defendant. Seventy-three of these lots were still owned by the plaintiffs when this suit was begun. (3) The entire frontage on the north side of Jefferson avenue from Parkview avenue to McClellan avenue. The property referred to in paragraph one has been sold by plaintiffs as follows: September 13, 1916, to Arthur C. Treadway the south 100 feet on Parkview avenue. October 6, 1919, plaintiffs conveyed to James R. Blackwood the remainder of the property at the southeast comer of Parkview and Jefferson avenues. This deed was duly recorded October 10th, and contained the following, restrictions: “The said party of the second part expressly covenants and agrees with the said parties of the first part that all buildings to be erected on said premises shall be for residences purposes only and same to be constructed with exterior of brick, stone or concrete and to be at least two stories high. Said buildings shall be located not nearer than twenty-five feet to the front line (that is to say the Parkview boulevard line) of said premises. “Each building to be erected on said premises to cost at least seven thousand five hundred dollars each. . “These covenants shall run with the land and be binding on every owner and occupant of said premises as well as upon said second party, his heirs and assigns.” March 17, 1921, Mr. Blackwood and wife conveyed the same property to the defendant. The grantors covenanted in the deed “that they are free from all incumbrances whatever except as to liens, restrictions and incumbrances of record at the date hereof.” On or about March 1, 1921, defendant started the erection of a building containing 35 apartments and one store on the property deeded to him by the Blackwoods. The building was completed about September 1, 1921, and was first occupied by a store about the middle of November, 1921. Plaintiffs did not know that it was contemplated that defendant’s building should be used in part for business purposes until after the basement' was occupied as a grocery store. Complaint was made by the plaintiffs, to which no attention was paid by the defendant, and this suit was brought. After the filing of the bill, Flora Benoit occupied another part of the basement with a dressmaking establishment and she was made a party to the case. Her default was entered for want of an appearance. The defenses urged by the defendant are: (1) That the property at the southeast corner of Parkview and Jefferson avenues, formerly owned by plaintiffs and of which the property by defendant is a part, was separate and distinct from the Berry subdivision, and that plaintiffs having parted with their interest in all this parcel, they cannot maintain the suit. (2) That the condition of the neighborhood is such that it would be inequitable to enforce this restriction. (8) That the plaintiffs are guilty of laches. The trial judge held that upon this record defenses 1 and 3 were not available to the defendant, but that defense 2 was. He viewed the premises and in a written opinion expressed himself in part as follows: “The defendants’ property and the plaintiffs’ property is at the present time surrounded by business, manufacturing, theatre and boat wells. The property to the west, the Webber property, is filled with the shacks of boat wells, etc., that will not be removed for three years. There is nothing to prevent the owner of that property, even when these are removed, from using it for business. The property on the east is owned by the witness Treadway and leased by him to the Belle Isle Boat & Engine Company, American Boat Company and for boat wells, and the lease there has sixteen years to run. And with the other theatre ana store property in the neighborhood, * * * I do not believe that it would be equitable at this time to enforce the restriction. The small basement business places do not damage anyone. Now that they are located and doing business, and were when this bill was filed, I think that justice and equity would be better done if they are permitted to remain and continue. If the defendant Fine seeks to enlarge the space used for business, or when the condition of the surrounding locality is improved so that it would .be more equitable to enforce the restriction, plaintiffs may apply for relief as against this or any other violation of the restriction. “The bill will be dismissed, but without costs.” A decree was made accordingly and the case is brought here by appeal. There is no pretense that the character of the property owned by the plaintiffs prior to 1916 has changed except for the better. No violation of the restrictions has been made by the plaintiffs or by any of their grantees, except the one which is now attempted to be made by defendants in violation of their contract. The case in these respects is unlike Windemere-Grand, etc., Ass’n v. American State Bank, 205 Mich. 539, where the condition was wholly changed after the restrictions were made. The question is not a new one in this State. Some of the cases are Reilly v. Otto, 108 Mich. 330; Moore v. Curry, 176 Mich. 456; Baxter v. Ogooshevitz, 205 Mich. 249; McQuade v. Wilcox, 215 Mich. 302 (16 A. L. R. 997); Goodlove v. Hamburger, 218 Mich. 156; Benzing v. Harmon, 219 Mich. 532. It is clear the plaintiffs by the restrictions were endeavoring to create a high class residential district, and have never given up that idea. They were also by other activities trying to extend the area of this high class residential district. If the defendant had consulted the record he would have known all about the restrictions which run with the land, and which it was his duty to observe. No act of the plaintiffs has waived the restrictions. The plaintiffs should have been given a decree as prayed in their bill of complaint. The decree is reversed, and one will be entered in accordance with this opinion, with costs to appellants. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

McDonald, J. In October, 1898, the plaintiffs, Alexander T. Fischer and Mary Fischer, his wife, became the owners of a farm consisting of about 329 acres on the Gratiot road in the county of Wayne. In May, 1907, they mortgaged it to the Northwestern Mutual Life Insurance Company to secure a loan of $17,000. Afterwards, Mr. Charles E. Greening obtained a lien on it for a debt of $17,000. There were still other liens against it when the insurance company foreclosed its mortgage and Greening bid it in for $41,980. The defendants Anthony C. W. Lauhoff and Anna Lauhoff, his wife, advanced $25,000 to Mr. Fischer to assist him in redeeming it. A further loan of $16,000 was obtained from a savings bank in Mt. Clemens secured by a mortgage on the farm, exclusive of 20 acres which had previously been mortgaged to a Mrs. Brown. With the money secured from the Lauhoffs and the bank, and with other money provided by Mr. Fischer himself, the plaintiffs were able to pay to Mr. Greening the sum of $42,873.86, and a conveyance of the farm was made by him to Mr. and Mrs. Lauhoff on the 25th day of February, 1910. Previous to this time the Fischers and the Lauhoffs had had a long course of dealings in which Fischer had become indebted to them in a large amount for loans. On the 16th of November, 1909, they had a settlement, in which it was de termined that the total amount of Fischer’s indebtedness was $27,365.01. It was then agreed between them that Mr. and Mrs. Lauhoff should make an additional loan of $10,000, which would make Fischer’s indebtedness to them $37,365.01. In anticipation of this additional loan, which, however, Mr. Fischer never received, he executed a note to Mr. and Mrs. Lauhoff for $37,365.01, and gave them a mortgage on the farm as security for its payment. As the Lauhoffs were unable to make the additional loan of $10,000, it was decided that the note and mortgage should be surrendered. The mortgage had not been recorded and could not be found at this time, but the note was returned to Mr. Fischer. A new note was then given by Fischer for $29,878.89, which was secured by a mortgage on the farm, except the 20 acres which had been previously mortgaged to Mrs. Brown. This note and mortgage were dated back to November 16, 1909, which was the date of the settlement. When Fischer first applied to the Lauhoffs for assistance in redeeming the farm, he gave them a deed of it as security for whatever sums of money they might advance. This deed was dated May 10, 1909, and recorded December 20, 1909. Afterwards the Lauhoffs were not able to raise the full amount required to redeem. When the mortgage had been satisfied and the whole transaction closed, Mr. and Mrs. Lauhoff, who then held the title, conveyed to Mr. and Mrs. Fischer on the 4th day of March, 1910, an undivided one-half interest in the farm, including the 20-acre parcel covered by the Brown mortgage. The day following a memorandum was indorsed on the $29,878.89-note to the effect that the note with the mortgage “was paid in full by one-half interest in the old Butler farm, so we have no claim against it whatsoever of said mortgage.” This memorandum was signed by Mr. and Mrs. Lauhoff. On the same day an indorsement was made on the $37,365.01-note to the effect that the note “was returned to A. T. Fischer and not to be used; the mortgage was mislaid and cannot be found; if found to be returned to A. T. Fischer because it was paid by a deed in full, and we have no claim against it because it was paid in fulL’j This memorandum was also signed by Mr. and Mrs., Lauhoff. On the same day the deed of the 20 acres included in the Brown mortgage was recorded. It had previously been conveyed by Mr. and Mrs. Fischer to Mr. and Mrs. Lauhoff, but was withheld of record. On the 31st day of December, 1919, Mr. and Mrs.. Lauhoff sold the farm to the Woodward & Watson Realty. Company by warranty deed purporting to convey the entire interest. This deed was recorded: January 9, 1920. The incumbrance on the farm at that time' consisted of a mortgage of $55,000. The Woodward & Watson Realty Company took the farm subject to this mortgage and were to pay Mr. and Mrs. Lauhoff $100,000 in certain securities and subject to certain conditions. The securities were delivered to a Mr. Maurer to be held in trust. He still held the securities at the time of the trial, except $8,000 which had been agreed to be paid to him as a. commission. At the time of the making and delivery of the deed by the Lauhoffs, an agreement was executed between Mr. Lauhoff and Mr. Higgins on behalf of the realty company whereby Lauhoff agreed to secure a three-year extension of the mortgage. It further provided that in default of the extension,, $52,000 of the bonds should be used to procure another loan to take care of the mortgage, and that $50,000' of the bonds should be deposited with Mr. Maurer until the renewal was accepted. The deed of a half interest in the farm from the Lauhoffs to the Fischers made on the 4th day of March, 1910, had not been put on record and was not on record at the time of the sale to the Woodward & Watson Realty Company. When the company went into possession Fischer put his deed on record and filed this bill to remove the cloud which he claims was put on his title to an undivided one-half interest. The claim of the defendants Anthony Lauhoff and Anna Lauhoff is stated by the circuit judge as follows: “Defendants Lauhoff deny that the deed of March 4, 1910, to plaintiffs of a one-half interest in the Butler farm is a valid deed; they admit their signatures to said instrument but claim they have never acknowledged it before a notary public; they claim that this deed is fraudulent and must have been signed :by them before any description was written in the «deed.” These defendants also claim that plaintiff Alexander T. Fischer acted as their agent in handling this farm and other property for them, and that as such he has come into possession of large sums of money belonging to them for which he has made no accounting, and they ask that an accounting be ordered by the court. The defendant Woodward & Watson Realty Company claims that it was a purchaser in good faith, that it had no notice of plaintiffs’ rights in the property; that they had no rights; that the deed under which they claim title to an undivided half interest is invalid and inoperative, and constitutes a cloud upon its title and asks that the court remove it. Upon the hearing the circuit judge found that the deed of March 4, 1910, was a good and valid conveyance and vested in the plaintiffs an undivided one-half interest in the farm; that the deed from Lauhoffs to the Woodward & Watson Realty Company was a cloud upon plaintiffs’ title; that Woodward & Watson Realty Company was not a bona fide purchaser, but had notice of plaintiffs’ rights; and that an accounting should be had between the plaintiffs and the de fendants Anthony- Lauhoff and Anna Lauhoff. From the decree entered all parties have appealed. We think the circuit judge was correct in his conclusion that the deed of March 4, 1910, is a good and valid deed of conveyance, and that it vested in the plaintiffs an estate in fee simple to an undivided one-half interest in the land in question. The history of the dealings between the parties both before and after the conveyance, as well as the written evidence, amply supports this conclusion. The important question involved is whether the Woodward & Watson Realty Company was a boma, fide purchaser. The plaintiffs claim that their possession of the property at the time of the sale was notice of their interests sufficient to put the purchaser on inquiry. “Open, notorious and exclusive possession of real estate, under an apparent claim of ownership, is notice to those who subsequently deal with the title, of whatever interest the one in possession has in the fee.” Wade on Notice (2d. Ed.), § 273. Plaintiffs were not maintaining this sort of possession at the time of the sale. The character of their possession is correctly stated in the opinion of the circuit judge as follows: “Prior to the time of the purchase and sometime during December, 1919, Mr. Higgins and Mr. Jacobs, agents for defendant Woodward & Watson Realty Company, visited the property to inspect it with a view to purchase; they found the land covered with snow; no one lived in the place and no animals of any kind were there; there was no barn on the premises ; the windows of one of the buildings on the farm were boarded up and the blinds were closed on the windows of the other building. There were some advertising signs of merchants along the Gratiot road; there were one or more ‘for sale’ signs, one followed by ‘phone Market 1230, Detroit;’ there were no tracks in the snow indicating there was anyone on or about the farm; there was nothing on or about the premises giving notice to Messrs. Higgins- anil Jacobs of plaintiffs’ interest in the property.” From this evidence it is clear that plaintiffs’ possession was not such as to constitute notice to the buyer of their interest in the property. It is also claimed by. the plaintiffs that the Woodward & Watson Realty Company was not a bom fide purchaser because the records in the register of deeds’ office show four mortgages covering the land in question, in which the plaintiffs have joined as mortgagors with Anthony Lauhoff and Anna Lauhoff, and that the presence of these mortgages on the records was notice to the company of the plaintiffs’ title. After the Lauhoffs had acquired title to the land by deed from the plaintiffs, the following mortgages were given in which the plaintiffs joined as mortgagors. One for $20,000, given on March 12, 1912, and recorded March 13, 1912, to-the Ullrich Savings Bank. Another for $16,000, given February 8, 1910, and recorded February 25, 1910, and a third was for $32,000, given March 11, 1915, and recorded March 15, 1915, the fourth was for $55,000, given December 28, 1917, and recorded December 29, 1917. At the time of the purchase by the Woodward & Watson Realty Company, all of these mortgages had been paid and discharged except the fourth. Of this mortgage the defendant had actual knowledge. The abstract which was examined by its attorney showed that the plaintiffs formerly owned the land and had deeded it to the Lauhoffs on May 10, 1909. That thereafter they joined in these mortgages. Were these mortgages and the plaintiffs’ former ownership of the title sufficient to put the purchaser on inquiry as to the interest of the mortgagors in the premises? A similar question was indirectly before this court in Peters v. Cartier, 80 Mich. 124 (20 Am. St. Rep. 508). Mr. Peters had title to the land in question, but it was not of record. He had; however, executed two mortgages which were of record. While the decision of the case turned on the fact that Cartier purchased the property with actual knowledge of Peters’ title, the court, speaking of the mortgages, said that they were an assertion of title in the mortgagor, that “Cartier had actual knowledge of these mortgages, and this alone should have been sufficient in morals, if not in law, to have caused him to investigate the title.” Mr. Peters had no record title to the land in question and never had. It may be doubted whether a recorded mortgage by a grantee not in the chain of title would be sufficient notice to require a purchaser to make further inquiry, but we think there can be no question as to its sufficiency where, as in the instant case, the mortgagors were not strangers to the title, and the purchaser had knowledge of the mortgage. “The rule has always been that the grantee or mortgagee must search for conveyances and mortgages made by any one who has held the title.” Pyles v. Brown, 189 Pa. St. 164 (42 Atl. 11, 69 Am. St. Rep. 794). “Any conveyance which under these laws is entitled to be recorded, should be held to be constructive notice to all persons of the interest conveyed by any person in the chain of title from the government to the last purchaser.” Edwards v. McKernan, 55 Mich. 520. Before the Woodward & Watson Realty Company parted with the consideration and received a deed of the premises in question, it knew that there was a recorded mortgage for $55,000 covering the property; that the plaintiffs were mortgagors in this mortgage and that they were in the chain of title. The facts were sufficient to put a prudent man upon inquiry as to their interests. A knowledge of such facts must be held to be equivalent to knowledge of plaintiffs’ unrecorded deed. As all of these parties lived in the city of Detroit, it would not have been a difficult matter to have inquired of plaintiffs as to their interests. In view of these facts, we think it cannot be said that the defendant company was a bona fide purchaser. It must be held to. have had notice of plaintiffs’ unrecorded deed. Accounting. The defendants Anthony C. W. Lauhoff and Anna Lauhoff in their pleadings ask for an accounting from plaintiff Alexander T. Fischer of all moneys received by him in his various transactions with them. On March 4th and 5, 1910, a settlement was had between the parties, and any indebtedness from Fischer was discharged in consideration of an undivided one-half interest in the farm. The accounting should be confined to all transactions between them subsequent to the- date of that settlement. In this respect, the decree will be modified. In all other'respects it is affirmed. Plaintiffs will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Bird, J. Plaintiff sued defendant for a balance of $125 and interest, which, it is claimed, was due on a $400 • note given to plaintiff’s intestate for a piano player. The note was what is termed a contract note, which retained the title in plaintiff’s intestate until the note was entirely paid. Plaintiff had judgment and defendant assigns error. It appears the defendant and his wife lived at Jessieville, a suburb of Ironwood. Both are Italians, and defendant is employed in a near-by mine, and has been for 15 years. He cannot read or write English and speaks and understands it somewhat imperfectly. His wife, Agata, runs a candy store and the family lives above the store. The wife has charge of and manages the store. Plaintiff’s intestate made the sale of the piano player to her on the installment plan. When she was about to sign the note plaintiff’s intestate said to her: “Sign your husband’s name.” In response to this, after some hesitation, she did so. Following this she made all the payments that were made until the balance due was reduced to $125. She refused to pay more because she claims the piano was out of repair and plaintiff would not repair it, as her intestate had agreed. At the close of plaintiff’s case defendant moved for a directed verdict on the ground that plaintiff had not made a case which would support a verdict. The proofs up to this point showed the wife signed the note, but no agency was shown, neither was any ratification by defendant shown. The trial court denied the motion for the time and suggested to counsel “he had not rested his case.” Counsel insists that under the following provisions of the statute he was entitled to a directed verdict at that time: “Upon the trial of any case in any of the circuit courts in this State the defendant, upon the conclusion of the plaintiff’s testimony, may request the court to direct the jury to bring in a verdict for the defendant, or make demurrer to the evidence, without resting his case absolutely.” 3 Comp. Laws 1915, § 12628. “Upon the refusal of the court to grant such motion, the defendant shall have the benefit of an exception as in ordinary cases, and without waiving such exception may then introduce testimony to make his defense upon the merits.” 3 Comp. Laws 1915, § 12629. We are impressed that this exception is well taken. At the close of plaintiff’s case there was no question of fact in the case and we are also satisfied, from a study of the record, that there was no case for the jury at the close of all the proof, so it is not very important whether a directed verdict should have been had at the close of plaintiff’s proof. There was no authority shown upon the part of the wife to sign defendant’s name to the note. It appears without contradiction that defendant did not know his name was signed to the note until the suit was begun. It appeared defendant gave his consent that his wife might engage in the business of running a candy store, and the proofs show that she did manage and control the business. It further appeared defendant did not know plaintiff’s intestate until long after the sale, and that he never talked with him concerning it. It appeared from the testimony of defendant that he had no interest in the store and the wife testified to the same thing, and admitted she was not authorized to sign the note for defendant, and that she signed defendant's name instead of her own only because of the suggestion of plaintiff’s intestate. The question of ratification was submitted to the jury. There was no testimony to support a finding of ratification. Defendant could not ratify an act of which he was ignorant. He did not know until suit that his name was signed to the note. He assumed that his wife made the purchase on her own account. We have examined the testimony which, it is claimed, was sufficient to submit to the jury on the question whether defendant ratified her act. Without taking the time to review it here, it will suffice to say we think it fell very far short of making a question for a jury. We think the trial court should have granted defendant’s motion at the close of the plaintiff’s case, and we are of the same opinion as to the motion to direct a verdict at the close of all the proofs. The judgment will be set aside and a new trial ordered. Defendant will recover his costs in both courts. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

Bird, J. The defendants owned certain real estate in the city of Detroit and were desirous of erecting thereon an apartment building. They had .some money but not sufficient to finance the project. They applied to plaintiff to secure for them a mortgage loan of $125,000. The matter was talked over, an agreement reached and a written contract made, one section being as follows: “The party of the second part agrees that it will counsel and advise with and give the borrower the benefit of its wide experience concerning the matters in connection with the proposed construction in general, and said party of the second part further agrees that, to the extent of the loan hereby applied for, it will pay, on behalf of the borrower, those persons entitled to compensation who have been engaged in the erection of the building proposed to be constructed under this application, and, to the extent of such payments, to take such steps as the party of the second part may deem practical and necessary to protect the borrower’s interests from lien claims, irregular payments and unjust demands; but it is expressly understood and agreed .that said second party does not hereby incur any liability for any mistake by it or its agents while acting as aforesaid. In consideration of the aforesaid and in consideration, further, of the services of the said second party in procuring and negotiating said loan, inspecting said buildings when necessary, for the protection of the borrower’s interests in connection with the payments aforementioned, and for various and sundry clerical expenses incident thereto, the borrower agrees to pay the parties of the second part a commission of eight (8%) on the total amount of said loan, which commission shall be considered as earned upon the signing of this agreement by the parties hereto.” In reliance on the agreement plaintiff went, for ward with the bond issue and sold, in advance of their issue, $23,100 worth and gave interim certificates. After considerable time and money had been expended defendants, by reason of certain disagreements, refused to execute the mortgage and repudiated the contract. By reason of this refusal plaintiff was obliged to repurchase the interim certificates at a premium of one per cent, and make payment of interest which had accrued on the certificates. To compensate it for its loss plaintiff brought this suit and recovered at the hands of a jury the sum of $8,750. The defense in the main was that plaintiff was a money loaner and that the provision for services to be rendered defendants in the erection of the building and looking after the payments for material and labor was a mere subterfuge for the purpose of exacting and collecting an illegal rate of interest on the loan. The written contract provided for a charge of 8 per cent, for procuring the mortgage loan and rendering certain services in connection therewith. Considerable testimony was taken bearing on this question. We are not impressed with defendants’ claim in this respect. Plaintiff, like many other companies of its kind doing business today in the large cities, assumes the attitude in the contract of an agent of defendant to float a mortgage loan with itself as trustee. For its services in connection with the matter it charged 8 per cent, of the loan. This may have been more than the services were worth, but we see nothing in the contract which leads us to conclude that the agreement was an usurious one, or that plaintiff posed in the contract in the attitude of a money loaner. This method of raising money to finance large and expensive structures in the cities has become so common that we may take notice of the relative position of trust company and client in deals of this character. It will not be necessary, however, for us to dwell'further upon this phase of the case, as the court submitted defendant’s theory of usury to the jury, and they found against their contention. While there are some other questions raised we think the meritorious question raised is whether the instructions of the court upon the question of damages were proper. The rule of damages given to the jury by the court was as follows: “The alleged illegality relates solely to the commission of 8 per cent., or the sum of $10,000, and this is the question for you to consider and determine: Whether it was a bona, fide contract, or whether it was, _ in fact, an illegal transaction — void because usurious. If you should find that this was a legal transaction, as it appears upon its face, then plaintiff is entitled to recover the sum of $10,000, the amount stated in the. contract, less the expenses to which it would have been put in preparing and issuing and carrying to a conclusion the sale of the bonds, less the permanent overhead charges and expenses. Only those expenses which would have been incurred by the plaintiffs in the issuing and in making the sale of these bonds are to be deducted.” The general rule of damages in cases of this character is stated as follows: “If the proof shows that profits would have been realized had the party not been prevented from performing the contract, they are recoverable; and the measure of profits as damages is the difference between the cost of doing the work and the price agreed to be paid. In considering items of profit or expense the courts are inclined to regard the magnitude of the contract and other elements of loss that may affect the defendant as well as the release from the care, trouble, risk and responsibility attending a full execution of the contract on the part of the plaintiff.” 13 Cyc. p. 161. This rule has been followed in the Michigan cases: Greenwood v. Davis, 106 Mich. 230; Scheible v. Klein, 89 Mich. 376; Rayburn v. Comstock, 80 Mich. 448; Leonard v. Beaudry, 68 Mich. 312. We think the trial court stated the true rule, but fell into error in directing the jury what items they should not include in making their deductions from the contract price. Upon this phase of the case the jury were instructed: "In determining the damages in this case you are not to consider the expenses of the issue of the interim certificates, if you find for the plaintiff. These interim certificates, I have no doubt, were issued in good faith. The testimony of Mr. Gross is that he had permission from the securities commission, but in this case as submitted the proof was not sufficient for this court to submit this question to you for your consideration. The commission could not act through a mere verbal order given by its secretary or some other individual member; it must act as a commission, and the evidence of its action must be in writing and appear of record somewhere, and there is no evidence in this case that such permission was given. I, therefore, withdraw from your consideration the question of the issuance of the so-called interim certificates, and you will not allow any damages to plaintiff for the issue of the same.” The jury were instructed that plaintiff was entitled to recover the contract price less what it would necessarily have cost plaintiff to float a loan and perform the services agreed upon. A part of the expense of plaintiff in floating the loan was to advertise the loan and go to selling bonds at once. If it did this it would have to issue interim certificates. This appears to have been its habit in floating a loan and, therefore, would have been one of the incidental expenses in carrying out the contract, and should have been considered as a part of the cost of floating the loan. The mere fact that this particular loan was not authorized by the blue sky commission could not affect this ques tion one way or the other. The jury was trying to find out what it would have cost plaintiff, following its. ordinary practice, to float this loan and render the services contracted for, and if this were one of the steps taken to float the loan, in the usual course of business, they would not be prevented from considering -the cost of issuing interim certificates, simply because the particular certificates issued were unauthorized. The items paid as premium to repurchase, and the interest accrued on the interim certificates, were not proper items to consider, because that expense would not have been incurred in the ordinary course of floating a loan. We are also of the opinion that the trial court was in error in instructing the jury that, in considering what it would have cost plaintiff to carry the contract to completion, they should not consider the item of overhead expense. This appears to be based upon the testimony of plaintiff that its overhead would have been the same whether they did or did not carry out the contract. If this particular contract had been executed according to its terms it would have required a certain amount of time and service, and this would have required a proportionate amount of overhead expense. While the office force were performing services in executing this contract it could not have performed like service on another contract. A certain amount of overhead expense for the year is incurred and, when occasion requires, this should be apportioned upon a percentage basis among the several contracts executed. The testimony in the present case estimated the proportionate overhead expense the present contract would have required. It was one of the items of expense that plaintiff would have incurred in carrying out the contract, and, when ascertained, should have been deducted from the contract price. By reason of these errors the judgment must be reversed and set aside. It will be unnecessary to consider any of the other questions raised. A new trial will be ordered and defendants will recover their costs in this court. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Clark, J. From the plaintiff, the Central Mill & Lumber Company, bankrupt, was a contract purchaser of the real estate used in its business. The printed matter prepared by the Security Trust Company, trustee, for a public sale of the property of the bankrupt and for the convenience of bidders, divided the property into parcels. An important item was the stock of lumber. In one parcel was the entire property, including the equity in the land contract. Bidders were given full information of the amounts paid, due and to become due on the contract, and of taxes unpaid on the real estate. Plaintiff, vendor in the contract, wrote a letter to the trustee consenting to the sale and transfer of the bankrupt’s interest in the contract, “providing that all amounts due at the time of indorsing such consent shall have been paid up and providing the buyer of the equity formally undertakes by indorsement on the contracts to carry out the same.” This letter was read to bidders assembled at the time and place of the sale. It was announced that a purchaser of the personal property alone, desiring to occupy the real estate, would have to consult the owner in regard thereto. Defendant purchased the entire property, paid for it, entered into possession of the real estate, used it as a lumber yard to dispose of the stock, and at the time of the trial such possession had continued for nearly a year. The trustee delivered to the defendant, with other papers, an assignment of the bankrupt’s interest in the land contract containing an undertaking that the defendant assume and agree to carry out the same, which undertaking the defendant signed. The trustee then assigned this undertaking to plaintiff and in consideration thereof plaintiff released all claims against the bankrupt. Plaintiff sought payment of the amount then due on the contract. An employee of plaintiff testified that defendant’s president said to him: “That he wanted a little more time. He asked for a week or ten days longer in which to give his answer as to when he would pay this money.” At a later interview defendant stated that it intended turning the real estate back to plaintiff. On July 13, 1921, the bill was filed for specific performance. Later an amended bill was filed. Defendant made a motion to dismiss. It filed an answer. Later it answered the amended bill. On February 4, 1922, it filed a cross-bill and there claimed that it had not assumed the obligations of the land contract, that its signature to such undertaking had been made under mistake, and that, when it purchased the property of the bankrupt, it understood that it had the choice of assuming or refusing the land contract and prayed that such undertaking be set aside. Defendant’s president, and several others who attended the sale, gave testimony of an announcement at the sale that the assuming of the contract obligations would be at the option of the purchaser. This testimony was flatly contradicted by the agents of the trustee and by the auctioneer who attended the sale. Defendant’s president testified of having signed such undertaking carelessly and without reading. Defendant had decree. Plaintiff has appealed. Counsel for plaintiff discuss the facts. They also' discuss the legal effect of defendant’s signing the undertaking even if signed as claimed by it, of accepting and keeping the original contract and the assignment thereof, of taking possession of the premises, of retaining possession after demand for performance of the contract, and of retaining and continuing in possession after the filing of the bill for specific performance, but we need not consider such questions. The great weight of the evidence establishes clearly the fact that defendant purchased the bankrupt’s equity in the land contract, and lawfully assumed the obligations thereof. The decree is reversed. Plaintiff will have decree for the relief prayed, with costs of both courts. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. The plaintiff filed his information in the nature of a quo warranto to oust the defendants, who are holding the public office of trustees of the township school district of Van Burén township, Wayne county, Michigan. The township of Van Burén contained five whole school districts and nine fractional school districts. On June 24, 1921, a special election was called for the purpose of submitting to the voters the question of organizing the township into a single school district. The vote being in favor of the proposition, the township board called another special election to be held on July 11, 1921, for the purpose of electing five trustees. At this election the defendants were elected and thereafter filed their acceptance of office with the township clerk. The information charges that both of these elections are invalid and that the defendants are unlawfully holding the offices of school trustees of the school district of the township of Van Burén, which was never legally organized. On the hearing the circuit judge determined that the election of June 24, 1921, was invalid and entered a judgment of ouster. A motion for a new trial was made. ■ Thé circuit judge then vacated his former judgment of ouster and entered a judgment for the defendants. From this judgment the plaintiff brings the cause to this court on writ of error. The record presents many interesting propositions which we do not discuss because the case must be disposed of on a question of jurisdiction. The defendants, raising the question for the first time in this court, claim that the action was not brought within the proper time nor against the proper parties, and should therefore be dismissed. The proceedings are controlled by sections 13551,13552 and 13553, 3 Comp. Laws 1915. Section 13552 provides that the petition shall be filed within thirty days after the election and that it shall be filed against the municipality. In the instant case it was not filed within thirty days after the election and was not filed against the municipality. For these reasons the action cannot be maintained. The case is controlled by Youells v. Morrish, 218 Mich. 194, and Anderson v. Levin, 218 Mich. 225. It is claimed, however, that as this question was not raised in the circuit court, the defendants are precluded from raising it here. The question is jurisdictional and may be raised at any time, though good practice requires that it be raised as soon as it is known. The judgment of the circuit court is affirmed, with costs to the defendants. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Wiest, C. J. Plaintiff is a Massachusetts corpora tion and, upon its application, was duly licensed under the so-called blue sky law of this State to carry on the business of buying and selling stocks for customers on commission. In this proceeding plaintiff reviews, by certiorari, an order of the Michigan securities commission revoking its license to do business in this State. March 8, 1922, the commission suspended plaintiff’s license, designating reasons therefor, in substance as hereinafter stated, and cited it to appear before the commission on March 16th, and show cause why such suspension should not be made permanent. Hearings, were had before the commission and testimony of' many witnesses taken. April 20, 1922, the commission found the following charges sustained by the. proofs so taken and revoked plaintiff’s license: “1. For failure to deliver stocks in accordance with contract. “2. For unreasonably delayed deliveries of stocks and securities. “3. For failure to furnish statements to customers showing the time, place, price and name of person to whom stocks were sold or from whom bought, as required by law. “4. For misrepresentation of stocks offered to customers. “5. For fraud practiced upon the public and upon its customers by reason of the basis of compensation between the company and its salesmen.” And: “In addition to the foregoing facts so established, the commission finds, from the testimony of the defendant, submitted by it in its own behalf, that it has been guilty of negotiations and trading in stock unapproved for negotiation and trading in the State of Michigan.” We are asked to determine under what circumstances a dealer’s license may be revoked. As usual we will confine determination to the case before us. It is contended that:- “Under the law, as it now stands, there appears ■to be no statutory right to revoke a dealer’s license.” The attack here made is against the provision in section 11955, 3 Comp. Laws 1915, authorizing the commission to revoke a license for “good cause” upon notice to the dealer and a hearing .duly had, and the particular point urged is the indefiniteness of the term “good cause,” in its relation to the business authorized by law and in which one may engage under license duly obtained. It is insisted that: “The Michigan securities commission is an administrative body and only on the aground of fraud can it revoke this license.” The questions so presented will be considered to-. gether. The law requiring license and providing for revocation thereof is an exercise of the police power inherent in the State. We do not accept the broad contention of the attorney general that: “Wherever the police power of the State seeks to regulate a trade, occupation or profession, it confers upon the regulatory board or commission wide discretionary powers, sometimes directing the lines along which this discretion shall be exercised, but always leaving open a wide field for the exclusive exercise of the discretion of .the board or commission administering the act.” Nor do we have to approve of such a doctrine in afiirming the action of the commission. The ambit of the power of the commission is in a field, meted and bound by the express provisions of the law. The law under which the commission acted designates with as much particularity as is consistent with public policy and the rights of all concerned, the power vested in the commission and the reasons for exercising the same. While the police power, inherent in the State, is incapable of being defined and subjected to limitations in the abstract, its exercise in any given direction, such as the regulation of trades, occupations and professions, is capable of definite expression, and must, if delegated to a commission or administrative board, define its purpose and the means of attainment thereof, and do this in language leaving no wide administrative discretion, and no discretion at all of a legislative nature. The power to carry out a legislative policy enacted into law under the police power may be delegated to an administrative board under quite general language, so long as the exact policy is clearly made apparent, and the administrative board may carry out in its action the policy declared and delegated, but it cannot assume it has been vested with power beyond expressed legislative delegation, and must ever seek its way in the light shed by the legislative mandate. This marks the line between arbitrary officiousness and the exercise of delegated power to carry out a designated policy under the police power. Is the determination of the commission consistent with the policy of the State declared in the •law? We think it is. If the law states with' certainty the policy intended by way of control over a licensee then the term “good cause” for revocation takes its sense from such policy, to be applied to a transgression thereof, and we do not have the uncertainty in the term, pointed out in the use thereof in a mere contract between private parties, as in Cummer v. Butts, 40 Mich. 322 (29 Am. Rep. 530), where the term “good cause” in a contract was characterized as wanting in sense, incapable of being reduced to lawful certainty by judicial effort and ineffective on account of its radical uncertainty. The term “good cause” for revocation, as employed in the statute, relates so clearly to the conduct of the licensed business, within the limits fixed by law, as to negative any arbitrary official action, and is so comprehensive of unlawful, irregular, fraudulent, unauthorized and forbidden business management and transactions conducted as to demand no more particular specification of its meaning and its application. Must the law map out, for the guidance of the licensee, a code of ethics and post danger signals against inhibited and dishonest practices? The plaintiff had no right to have the conduct of its business charted by specifications of forbidden practices involving revocation of the license. The general scope and expressed purpose of the law, together with open and fair dealing, entered the license and transgression thereof constituted good cause for revocation thereof. When the legislature granted judicial review of the action of the commission, by certiorari, it thereby imparted to the meaning of the term “good cause” such cause as would stand judicial test in its application to a given case, and this also negatives all idea of wide discretionary power delegated to the commission. Revocation of a license for good cause constitutes no penalization of the business licensed; it strikes down the power of those engaged in the business to employ the license contrary to declared public policy or common honesty. In Caldwell v. Stock Yards Co., 242 U. S. 559 (37 Sup. Ct. 224), it was urged against the South Dakota blue sky law that: “There is no standard fixed to guide the commission in granting the permit, nor is there any standard prescribed as to the reason for the revocation of the permit.” This was answered by the court, and the law sustained, in the opinions in the so-called blue sky cases, Caldwell v. Stock Yards Co., supra; Hall v. Geiger- Jones Co., 242 U. S. 539 (37 Sup. Ct. 217, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643); Merrick v. Halsey & Co., 242 U. S. 568 (37 Sup. Ct. 227). It was said in Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230 (35 Sup. Ct. 387, Ann. Cas. 1916C, 296): “Undoubtedly the legislature must- declare the policy of the law and fix the legal principles which are to control in given cases; but an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principles apply. If this could not be done there would be infinite confusion in the laws, and in an effort to detail and particularize, they would miss sufficiency both in provision and execution.” Answering the contention there made that the statute left decision to arbitrary judgment, whim and caprice and to the different views which might be entertained, the court further said: “But the statute by its provisions guards against such variant judgments, and its terms, like other general terms, get precision from the sense and experience of men and become certain and useful guides in reasoning and conduct. The exact specification of the instances of their application would be as impossible as the attempt would be futile.” See, also, Douglas v. Noble, U. S. Adv. Ops. 1922-23, p. 305. We are of the opinion that the term “good cause” for revocation of the license, relating, as it does, to the conduct of the business regulated by the policy declared in the statute, is sufficiently definite. This brings us to the question of whether the findings of the commission constitute good cause for revocation of the license and whether such findings are supported by evidence. We are of opinion that the findings justify revocation of the license. The printed record of 603 pages has been read with care to determine whether there is support to the findings of the commission. It must be borne in mind that we are not triers of the facts, neither do we weigh the evidence; we do no more than review the evidence and if it supports the findings of the commission we cannot disturb such findings. We have reviewed the evidence and are persuaded that the findings are supported by the proofs. It would be of no benefit to the profession to enter upon a discussion of the evidence and it would unnecessarily prolong this opinion. The action of the commission is affirmed, with costs to defendant. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Bird, J. Plaintiffs exchanged their equity in an apartment building, number 270 Frederick street, in the city of Detroit, for defendants’ equity in an orange grove in Redlands, California. Both properties were carrying mortgages equal to a very large per cent, of their value. Defendants lived in Detroit. Plaintiffs were in Berkeley, California, when the trade was made, and were represented by Frederick Zeigen, a real estate dealer in Detroit. After the trade was consummated plaintiffs went to Red-lands and examined the property and were not pleased with conditions. After waiting about five months they commenced this suit, praying rescission, on the ground of misrepresentation and fraud. After a hearing the chancellor disposed of the issues, as follows: “The bill of complaint in this cause was filed for the_ purpose of obtaining the return of a contract assigned by plaintiff to defendant Antona upon a fiat building located at 270 Frederick avenue in the city of Detroit, which property plaintiff had acquired some six months previous to the transfer to defendant Antona. Defendants Antona were the owners of an orange grove in Redlands, California, which they acquired by transfer to one Saly Saulson of a land contract for $23,000, receiving in return for said land contract the sum of $12,000 in cash and the equity of Saly Saulson in the orange grove. The orange grove, at the time of the transfer to Antona, had upon it a mortgage of $9,500, so that the equity of defendants in the orange grove is estimated to be $11,000, which was exchanged for plaintiffs’ equity in the property at No. 270 Frederick street in the city of Detroit. “Defendant Fred H. Zeigen acted for the parties in making the exchange. The grounds for cancellation of this exchange are alleged to be fraud and misrepresentation and inadequacy of consideration. The questions are questions of fact and the burden of proof rests upon the plaintiffs to show any misrepresentation or fraud or inadequacy of consideration upon the part of the defendants. Defendants Antona owned the orange grove for approximately one year previous to the sale. The record does not- disclose that either of the defendants knew anything about orange groves. There were no communications between defendants and plaintiffs. The negotiations were carried on by correspondence between the defendant Zeigen and the plaintiff Vernon, and began October 20; 1919, when defendant Zeigen wrote a letter to plaintiffs as follows: “ ‘We have the offer of inclosed orange grove subject to $9,500 for your 270 Frederick street property subject to $28,000. Know nothing about the orange grove but think you have some dope on it.’ “To this letter plaintiffs reply as follows: “ ‘Feed H. Zetgen, “ ‘Detroit. “ ‘Dear Sir: I am sending night letter same time I send this. I had Mr. Antona’s orange grove put upj to me one year ago and we went to see it at that time. I would not consider it at the price he gave us, but would be glad to exchange apartment for it if he would take our equity, whatever the amount is, and he he responsible for the $1,000 payment on or before Mbrch,’ etc. “In their testimony plaintiffs deny that they had seen the orange grove. I am constrained to find that they did see it and knew of its location and something of its condition. I have examined the evidence carefully and nowhere do I find any direct evidence of any fraudulent act or misrepresentation on the part of the defendants. In fact, it may be said from the record that the plaintiffs and defendants Antona were not even acquainted with each other, business being done through defendant Zeigen. They allowed him to represent them in the trade and urged him very strongly to make it. There was no representation as' to value whatever, the exchange was made, equity for equity, and if Antona’s conduct is to be questioned at all in respect to his good faith, it could only rest upon inference or suspicion. That fraud is not to be presumed or lightly inferred is the well established law of this State. There must be some fraudulent conduct upon the part of defendants to warrant the court rescinding a contract lawfully made by the parties with their eyes wide open who insisted upon making the contract and who are in a position to determine for themselves all of the facts as to the value of the property being acquired and their legal rights. I cannot find from the record that there was even an expression of opinion by the Antonas as to value, nor do I find that defendant Zeigen, individually, or in conjunction with Antona, ever made any .representations whatever. In fact, in his correspondence he. expressly stated that he knew nothing about the orange groves. “It is insisted upon the part of the plaintiffs that the court should set aside "the transfer on the grounds •of gross inadequacy of consideration. I am satisfied that no fraud is manifest in this case unless it is to be presumed from lack of consideration. I have carefully examined the cases cited by counsel bearing upon this question and I find that they do not apply to the case at bar. I do not believe that the court should interfere with the valuation placed by the parties on the subject-matter. Where they have the opportunity and ability to exercise their independent judgment as to its value, I do not believe that a court of equity is designed to aid people who make bad bargains where no fraud or misrepresentation is shown. “Plaintiffs allege in their bill that they tender a deed of the orange grove and are capable and will put the Antonas in statu quo in case the contract is rescinded. The evidence shows on the contrary that the orange grove had passed by foreclosure proceedings beyond their control; that Vernon for the payment of $200 consented to a foreclosure of his interest and sold the irrigation stock to Halsey T. Allen, agent and attorney for Saly Saulson. They are then in no position to place the Antonas in statu quo in any .particular. “I am constrained to hold that plaintiffs have not sustained the burden of proof and therefore the bill should be dismissed with costs to defendants. There are other reasons why plaintiffs should not prevail in this action, but inasmuch as the matter has been disposed of as above I think it needless for me to go into other questions. “Defendant Zeigen has filed a cross-bill asking affirmative relief, viz.: That his lien be restored to the Frederick street property acquired by the defendants Antona. I do not think this position tenable from the evidence. Mr. Zeigen, himself, testified that Mr. Antona was very fair in all his statements and that, as I recall it, also says that Mr. Antona made no representations whatever, that it was to be an exchange of equity for equity. In view of this testimony Mr. Zeigen’s position now, that his lien be restored to the Frederick avenue property is hardly in keeping with his testimony. I find, further, that Mr. Zeigen knew that the mortgage on the orange grove was to be foreclosed several months before proceedings were instituted. That if he had desired to do so, he, himself, could have protected his mortgage by bidding the property in or by taking up the first mortgage. Inasmuch as he neglected to do this I do not believe that the court should compensate his negligence ; therefore, I feel that the cross-bill of defendant Zeigen should be dismissed and the parties left in the position they placed themselves in at the time the transaction was made, for to transfer to the Frederick avenue apartment the second mortgage of $2,150 as claimed by Mr. Zeigen, I would also have to find that Mr. Antona was guilty of fraud. This I cannot find from the evidence. The cross-bill will, therefore, be dismissed without costs.” It appears that the deal was closed the last days of November, 1919. The latter part of January, 1920, plaintiff went from Berkeley to Redlands and examined the orange grove. He was dissatisfied. He concluded at that time that he had been defrauded, but he did not promptly tender a reconveyance to Antona, and insist upon a rescission, but instead disposed of the water rights connected with the grove for $300. This act was in affirmance of the exchange. He had it in his power to place defendants in statu quo had he acted promptly, but instead he sold the water rights and delayed his rescission until foreclosure proceedings made it impossible to restore to defendants what they had conveyed to them. This should prevent plaintiffs from obtaining any relief on the ground of rescission. Merrill v. Wilson, 66 Mich. 232; Galvin v. O’Brien, 96 Mich. 483; Draft v. Hesselsweet, 194 Mich. 604. The foregoing opinion by the chancellor so well expresses our views of the evidence that we adopt it as the opinion in the case. The decree is affirmed, with costs to defendants. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Fellows, J. The accident out of which this lawsuit arose occurred in Fruitland township, Muskegon county, on a highway known as the Michigan Pike. The pike is of concrete construction 9 feet wide, and there is about 15 feet of level road on each side of the concrete. Plaintiff, with a team and farm wagon, accompanied by his wife, was on his way home, driving north on the right hand side of the road off the cement part of it. Defendant coming from the south overtook and struck the rear end of plaintiff’s wagon, breaking the reach and shoving the wagon onto the horses. Plaintiff and his wife were thrown out, the horses becoming detached ran some distance. There was evidence of damage to the horses; plaintiff suffered some inconvenience but no serious injury and was awarded a judgment for $250. Defendant testified that he was coming up behind plaintiff at a moderate rate of speed, started to go past him, when he discovered a machine coming from the opposite direction and turned to the right behind plaintiff’s wagon, applied the brake and had practically stopped when he was run into from behind, driving his car onto the wagon of plaintiff. Defendant’s counsel conceded' in the court below and concedes here that under section 1, Act No. 236, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 4865 [5]), plaintiff made a prima, facie case of negligence on the part of defendant by establishing that the rear end of plaintiff’s wagon was struck by defendant’s machine proceeding in the same direction, but he insists that such prima facie case can not stand where direct, positive and credible evidence rebuts it; that the presumption created by the statute can not be weighed against the evidence; and that defendant’s testimony brought the case within this rule. Counsel’s contention as to the rule of law is sound. See Gillett v. Traction Co., 205 Mich. 410; In re Cochrane’s Estate, 211 Mich. 370; Union Trust Co. v. American Commercial Car Co., 219 Mich. 557. The trial judge did not disagree with the contention of defendant’s counsel as to the rule of law, but was of the opinion that the facts were sufficient to take the question of defendant’s negligence to the jury. In so holding he applied the well-recognized rule that, upon ¿i motion by the defendant to direct a verdict in his favor, the testimony and legitimate inferences to be drawn from it most favorable to plaintiff must be accepted. We are not persuaded that the trial judge was in error. The statute (1 Comp. Laws 1915, § 4818) provided: “Upon approaching a person walking in the road way of a public highway, or a horse or horses, or other draft animals being ridden, led or driven thereon, a person operating a motor vehicle shall slow down to a speed not exceeding ten miles an hour and give reasonable warning of its approach and use every reasonable precaution to insure the safety of such person or animal, and in case of a horse or horses or other draft animals, to prevent frightening the same.” Whether defendant used “every reasonable precaution to insure the safety” of plaintiff was, we think, a question for the jury. Defendant does not claim to have taken any observations to see if anyone was coming from the north before he turned out to pass plaintiff and it does not appear that had he looked ahead he would not have seen the car coming from that direction; he claims to have looked to the south and to have seen the car coming from that direction, but his testimony fairly interpreted indicates that this was after he turned out to pass plaintiff. If the car was coming from behind at the speed the parties seem to agree it was, it would have been most hazardous to get in its way; whether defendant sounded his horn is in dispute and there is no evidence that he signaled those following him that he was about to turn out to pass plaintiff who, it should be remembered, was not on the cement roadway where automobiles usually travel. Under all these circumstances, the court properly submitted to the jury the question of defendant’s negligence. See Wilkowski v. Grant Iron & Metal Co., 219 Mich. 535; Budnick v. Peterson, 215 Mich. 678; Benjamin v. McGraw, 208 Mich. 75. The charge of the court fairly presented the case to the jury and protected defendant’s rights. The judgment will be affirmed. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Wiest, C. J. This is a companion case to that of Elizabeth Charvat y. Gildemeister, ante, 286, in which an opinion is handed down herewith. The facts and questions of law are so near alike in both cases that the briefs in Elizabeth Charvat’s Case are the briefs in this. The case is governed by the opinion in Elizabeth Charvat’s Case, with the exception of one 'question. In this case no witness had seen defendant write or 'sign his name. The contract, like those in the other case, purported to be signed by defendant, also letters about the matter received by plaintiff and his attorney. The attorney testified he wrote defendant and received the letter offered in evidence in reply. The contract and letters were received in evidence over the objection of defendant. This action being in tort defendant was not called upon to deny the contract and letters under Circuit Court Rule No. 33, as this rule is applicable only to the paper sued on (Oceana Canning Co. v. King, 195 Mich. 628). Plaintiff testified that he received a communication from defendant about a year before the trial, and he had compared the signature to that letter with the signature on the contract and they were alike. While the question, on this record, is a close one (Pinkham v. Cockell, 77 Mich. 265), and without approving of the method here adopted, we think the technicality is rendered abortive by section 14565, 3 Comp. Laws 1915. It does not affirmatively appear that the error complained of has resulted in a miscarriage of justice. The judgment is affirmed, with costs to plaintiff. Fellows, McDonald, Clark, Bird, Sharpe, Moore,, and Steere, JJ., concurred.

Sharpe, J. The defendant company and its assignors have maintained a dam on Prairie river, also called Hog creek, in the township of Nottawa in St. •Joseph county, about one mile from the village of Centerville, since the year 1857. It was originally constructed of wood and earth. In 1904 it was rebuilt of concrete. Plaintiffs, who own farm lands up the stream, claiming that their low lands have been flooded to a much greater extent since the new dam was built, filed their bill of complaint herein, praying that defendant be enjoined from raising, the water to a greater height than was permitted by the old dam. The answer of defendant is a general denial. In a cross-bill it asked that, if damage to plaintiffs’ land had been so occasioned, it should be determined and decree máde therefor. Plaintiffs at the hearing announced that no claim for damages would be made. The hearing was begun before the late Judge Knowlen and continued before the present circuit judge. No opinion was filed. The decree, however, states the facts found at some length. He determined that the crest of the old and the new dam was of substantially the same height, each raising the water 819.4 feet above sea level. A single flashboard was maintained on the old dam, by which the water was raised 820.9 feet above sea level. There are two flashboards on the new dam and their use permits the raising of the water about two feet above the crest. In the decree he limited the right of the defendant to raise the water to 820.9 feet above sea level. Plaintiffs have appealed: They claim that under the proofs the height of the dam and flashboards should have been restricted to 818.73 feet above sea level. But one question is presented. Does the decree permit the raising of the water to a greater height than it was maintained prior to 1904? The burden of proof is on plaintiffs to establish the affirmative by a preponderance of the evidence. Plaintiffs’ testimony is very convincing that their lands have been flooded to a greater extent in recent years than they were before. But three of them, Mr. Balk, Mr. Michaels and Mr. Schermerhorn, owned their • lands prior to 1904, when the new dam was constructed. Mr. Balk testified .that the water was higher in 1905 and that he then made complaint to defendant’s manager. Mr. Michaels testified that he first noticed the rise of the water seven or eight years before the hearing. Mr. Schermerhorn testified: “I have observed an increase in the height of the water over my land since 1900.” The other plaintiffs testified to a gradual increase in the fioodage since they purchased. Mr. Templin, who bought in 1919, but who was familiar with the land before that date, testified: “I noticed an increase of water over my land since seven or eight years ago.” Mr. Shiveley, who purchased in 1918, testified: “Right now my marsh is drier than when I bought it.” This testimony is also convincing that the increased fioodage has, in part at least, been due to other causes than the maintenance of the dam. When the dam was constructed in 1857, fioodage rights were secured over the lands below the Cox bridge, which is 1.5 miles by land above the dam. These deeds do not appear in the record, but Mr. Balk, who owns lands in this area, testified that in his deed, executed in 1899, fioodage was reserved “at the present height of the dam, and no higher.” It is apparent that it was then understood that the dam did not appreciably affect the waters up the stream beyond the Cox bridge. We think the proofs also support this conclusion. This is not important as plaintiffs concede the prescriptive right to flood to the extent the water was raised by the old dam, except in its bearing upon the proofs offered by defendant to show that the new dam does not affect the water above the Cox bridge. Plaintiffs’ case rests upon their observations of the condition of their lands from year to year. Were not these conditions affected by other causes, they might be strongly relied upon. But the proofs show (and aside from the proofs we may take judicial notice of the fact) that there were wet and dry seasons and these would much affect the amount of water on these low lands. There is also proof that a number of drains have been constructed since 1904 leading into this stream, some of them draining the waters of lakes of a considerable size. Frank Cummings, who had had charge of the dam for defendant since 1890, testified: “I measured the old dam before it was rebuilt in 1904; both before and after. The measurements showed the heights of the two dams nearly the same, the new dam being possibly an inch or an inch and a half lower. We were satisfied the dams were of the same height.” Several witnesses, called by the defendant, who were familiar with the stream before the new dam was constructed, testified that, in their opinion, it raised the water no higher than the old one did. Measurements made and levels taken by an engineer tend to support this claim. We are convinced, as was the trial court, that the crest of the new dam is no higher than the old one was. By the decree, the defendant is enjoined from maintaining flashboards which will raise the water higher than the one on the old dam did. This is all the relief to which plaintiffs are entitled under the proofs. The decree is affirmed, with costs to defendant. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steeke, JJ., concurred.

Sharpe, J. The defendant company is a Michigan corporation, with its principal place of business at the city of Niles. The books of the company were kept by its secretary and treasurer, W. D. Johnson, in Chicago. In May and June, 1918, certain parties living in Pittsburgh, Pennsylvania, had given their notes to the company in payment of stock certificates issued to them. Johnson negotiated a sale of these notes to plaintiff. Its officers required the defendant company and its officers individually to guarantee payment. Johnson and Nordquist, the vice-president, signed guarantees typewritten on the back of the notes by plaintiff’s counsel, reading as follows: “For valuable consideration payment guaranteed.” The name of Bonine as president of the company and individually was written thereon by Johnson, who testi fied that Bonine had authorized him to do so in a conversation over the telephone. The notes were then delivered to plaintiff. They amounted to $7,900, and bore interest at 6 per cent. Johnson received therefor a check, payable to the order of the defendant company, for $5,530.35, and a second-hand automobile, valued at $1,500. More than $900 was allowed as discount. The notes were not paid when due, and plaintiff brings this action against the defendant company, Bonine and Nordquist to recover on the guaranty. Johnson was not made a party. The company and Dr. Bonine appeared, the latter with his plea denying the execution of the guaranty. At the conclusion of the proofs, the trial court directed a verdict for the defendants, for the reason that, as a part of the consideration paid therefor was an automobile delivered to Johnson for his personal use, the sale was void and plaintiff “acquired no title to these notes as against these defendants.” This action is not brought to recover on these notes. It is planted on the contracts of guaranty written on the back of the notes and signed by the guarantors. The declaration avers: “Plaintiff refused to purchase any of said notes without this guarantee of payment and required this guarantee of payment to be indorsed upon each of said notes and signed by each of said guarantors prior to the purchase of any of said notes by the plaintiff. “Plaintiff did purchase each of said notes because of the guarantee placed upon each of the notes by the said defendants.” The statute and rules of law pertaining to negotiable instruments, therefore, have no application. That such contracts were written on the backs of the notes has no significance. The undertaking of the guarantors to make payment was absolute. They did not guarantee that collection might be made, but pay ment. While these contracts were made in reference to the notes, they constituted an independent promise to pay them and could be sued thereon, as was done, without making the makers of the notes parties to such action. The rights and liabilities of the parties must therefore be determined by the terms of the contracts, supplemented by such parol evidence as the law permits. The consideration for the undertaking of the guarantors was the benefit which the corporation would receive as a result thereof. In its dealing with Johnson, as secretary-treasurer of the defendant corporation, plaintiff is charged with notice of the power and authority which he possessed, as a matter of law, to act for the corporation in disposing of its assets. He had no legal right to dispose of these notes for anything except cash or other property reasonably necessary for the use of the corporation in its business. To the extent to which the corporation benefited by the sale, we think it and its officers who individually guaranteed payment are liable on the guaranties. The sale of the notes to plaintiff was not a void transaction. It might have been ratified by the corporation. To the extent to which the corporation received and retained the benefit, ratification is presumed. The consideration of a contract, unaffected by the statutes or rules of law pertaining to negotiable instruments, may always be inquired into. The guaranties sued on were not entered into for the benefit of the makers of the notes, nor did they pass to plaintiff by indorsement. They were simple contracts under which the guarantors agreed to make payment of the notes when due in consideration of the advance to them by plaintiff of the face of the notes, less any reasonable deduction in the way of additional interest or discount as might be agreed upon. When the guaranties, accompanied by the notes, were delivered to plaintiff by Johnson, it was its duty to make payment to the corporation in accordance with such implied understanding and agreement with the guarantors. It- did not do so in full. To the extent to which it did, the corporation and the individual, guarantors are liable. Courts have no right in construing contracts to' make new ones between the parties. But when a contract is sought to be enforced, the court has a right, when it appears that there has been a partial failure of consideration, to refuse to enforce it, except as to that part which is valid. Plaintiff is not here seeking to enforce payment of notes which it-purchased at less than their face value. It is seeking to collect the damages it sustained by reason of defendants’ failure to perform their contracts of guaranty. Such damages are restricted to compensation for the loss sustained. That loss under the facts here presented is the amount of the money which the defendant corporation received as the consideration for the execution and delivery to plaintiff of the contracts of guaranty. The payments credited on® the notes appear to have been made by Johnson personally. If so; the defendants may not have the benefit thereof. It is insisted that the defense here considered was not admissible under the pleadings. This we need not discuss as they may be amended in the court below. The personal liability of the defendant Bonine is dependent upon a question of fact which the jury must determine. The judgment is reversed and a new trial granted, with costs to appellant. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

Sharpe, J. On December 24, 1915, defendant’s general manager, C. F. Wade, wrote plaintiff: “We are pleased to advise that effective January 1, 1916, your salary will be increased from its present $45; per week to $2,500 per year.” Plaintiff, who was at that time in the employ of defendánt, testified that within a few days after December 24th he wrote and signed an acceptance, reading, “I hereby acknowledge and accept your contract for the year 1916,” and handed it to Mr. Wade. He continued work after January 1, 1916, and was paid therefor at the rate stated in this letter. He was discharged on January 31st, though paid for services for the month of February. This action was brought to recover the balance of his salary for 1916. Defendant’s manager denied that plaintiff accepted the offer contained in the letter of December 24th, and relied on¡ the statute (3 Comp. Laws 1915, § 11981), which renders void all such contracts not to be performed within one year. This question was submitted to the jury, who found for plaintiff. The, judgment is here reviewed by writ of error. Defendant insists that the offer contained in the letter was not one for employment for'a year, but an offer to pay plaintiff at the rate of $2,500 per year for an indefinite time and that plaintiff’s acceptance could not change the meaning of the language of the offer. Plaintiff testified that prior to December 24th there were negotiations between Mr. Wade and himself relative to his continuing in the service of defendant; that on the 24th Mr. Wade presented to him a written contract (Exhibit 1), providing for payment at the rate of $2,500 per year for an indefinite time; that he refused to sign it, saying, “I want a year’s contract;” that Mr. Wade then dictated the letter in his presence and he thereafter accepted the offer contained therein as already stated. Mr. Wade, called by defendant, denied that plaintiff’s letter of acceptance was received by him. On cross-examination he testified: “Jackson and I had had some discussion previous to December 24th, with reference to his staying with the company in 1916. Mr. Jackson wanted a contract. That is correct. I can’t recall that he did tell me he had an opportunity to locate elsewhere under a yearly contract. He had an opportunity to go elsewhere under an advantageous arrangement. “Q. And he insisted that you make a year’s contract for 1916? “A. Yes. “Q. And you agreed to give him a contract? “A. Not at first. “Q. For 1916, not at first? “A. No, sir. “Q. But you did later? “A. I did later. “Q. It was in accordance with this agreement covering a year’s contract that you prepared this Exhibit 1? “A. Yes.” That on plaintiff’s refusal to accept the agreement first prepared, for the reason that it did not provide for a yearly hiring, he dictated the letter of December 24th. This testimony was received without objection. The letter purported to change the compensation plaintiff should thereafter receive from the weekly sum' theretofore paid to a fixed yearly amount. If the language contained in it is ambiguous or uncertain, the testimony of Mr. Wade makes it certain that he intended by the letter to,offer plaintiff employment for a year. Plaintiff’s acceptance was unequivocal. We cannot but agree with the trial court that, if plaintiff accepted in the manner claimed by him, a binding contract for employment for the year 1916 resulted. The judgment is affirmed., Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

Sharpe, J. The defendant, while assorting waste paper at the plant of the Michigan Carton Company in Battle Creek in January,- 1919, found therein 26 bonds of the Wellsville Telephone Company, a cor p oration organized under the laws of the State of New York, of the face value of $500 each. These bonds were all dated January 1, 1902, and would mature in 20 years. All of the interest coupons were attached. They were a part of a $30,000 issue duly authorized by the company, secured by a mortgage on its property, in which the City Trust Company of Cleveland was named as trustee. Though duly executed, the bonds were never issued. In 1904 they were sent by the telephone company to the trust company for cancellation and discharge of the mortgage. This the trust company neglected to do and the bonds in some way became mixed in with its waste paper. At the request of the defendant, the Central National Bank of Battle Creek wrote the plaintiff, the successor of the Wellsville Company, asking the value of one of the bonds. Plaintiff’s treasurer in reply informed the bank of the facts above stated. Investigation developed the further fact that the trust company had failed and, after the final accounting had been had, its worthless papers and documents had been sold as waste paper. Plaintiff, on July 23, 1919, filed its bill of complaint herein, alleging the facts stated and that defendant was attempting to dispose of some of the interest coupons, and prayed that defendant be enjoined from disposing of the bonds and be ordered to deliver them to plaintiff. A temporary injunction was issued. A copy of this and a copy of the summons issued were served on defendant on July 23, 1919. On July 28, 1919, defendant, accompanied by his counsel, Judge Palmer, went to the office of plaintiff’s attorneys and, after a conference, a stipulation was prepared and signed by Mr. Onen, representing the plaintiff, and the defendant personally, reciting the finding of the bonds by defendant and, providing that they should be deposited with the county clerk to abide the result of the suit and, if the owner was therein determined, they should be turned over to him and, if found to be of no value, the clerk should destroy them, and that no costs should be taxed against the defendant. No appearance was entered by the defendant. On November 10, 1919, an order pro confesso was duly entered and an affidavit of regularity filed. On February 27, 1920, plaintiff filed a petition asking that a commission issue to take testimony in the State of New York. A commission was issued and testimony taken. Thereafter, and on August 25, 1920, Mr. Hamilton entered his appearance as attorney for defendant and on the 28th filed an answer for him. On October 17, 1921, Mr. Cobb was substituted by stipulation. On November 17th a motion was made to set aside the default and for continuance over the term. No order setting aside the default was entered, but Mr. Cobb was permitted to take part in the trial and submitted a brief to the court. The defendant was cross-examined as an adverse witness by plaintiff’s counsel and also examined by his own counsel. The trial court entered a decree providing that the bonds, then in the hands of the clerk, be delivered to the plaintiff. No costs were allowed. From this decree defendant appeals. On this appeal defendant’s counsel insists: (1) That the stipulation was in effect an appear*ance on the part of the defendant, and, (2) That the allegations in the bill are not sufficient to support the decree. No claim is made that any injustice has been done to defendant in the decree made. He testified, “I do not claim to own these bonds, except as a finder of abandoned or lost property, and to hold them for the proper owner.” His counsel at the hearing stated to the court, “I am going to admit that there is no title and no defense from the standpoint of the defense of Mr. Robinson’s possession.” The undisputed proof shows that the bonds, never having been issued, have no value and the only purpose of their preservation is, by their production and cancellation, to procure a discharge of the mortgage executed to secure their payment. We are, therefore, only concerned in whether the court had jurisdiction to make the decree. Without discussing whether the stipulation was in legal effect an appearance, it is sufficient to say that it was not so intended. When its terms were discussed by Mr. Onen, representing the plaintiff, and Judge Palmer, representing the defendant, Mr. Onen asked Judge Palmer “if he would appear in the case,” and he said: “No, there was no necessity of any appearance in the case. That he had advised Mr. Robinson that he had no defense.” The provision in the stipulation that no costs should be taxed against the defendant is also strongly suggestive that he did not intend to contest plaintiff’s claim. The bill alleged the issue of the bonds, that they were sent to the trust company for cancellation, that defendant had found them and had them in his possession, that he had attempted to collect some of the interest coupons then due, and that plaintiff was apprehensive that defendant, unless enjoined from doing so, would sell and dispose of the bonds to persons who might claim to be innocent purchasers of them for value. It also alleged that plaintiff had conveyed a part of the property described in the trust mortgage securing payment of the bonds to the New York Telephone Company a'nd had covenanted that such property was free and clear of all incumbrances, etc. These allegations, established as they were by the undisputed proofs, justified the decree made. It is affirmed, with costs to plaintiff. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steers, JJ., concurred.

Wiest, C. J. The sole question in this case is whether the evidence of sale of a car load of potatoes satisfies the statute of frauds. Defendants are co-partners, engaged in business' at Marquette, and plaintiff is located at Escanaba. Defendants asked plaintiff, by telephone, if it could furnish them with potatoes and were advised that a car load in transit could be diverted to them 'at Marquette. The learned circuit judge, in entering judgment for defendants notwithstanding the verdict in favor of plaintiff, so well covered the questions involved that we quote freely therefrom: “The plaintiff purchased in Minnesota from Geo. B. Higgins & Co. a car load of potatoes-. They were shipped in a car initialed A. T. S. F. and numbered 8644, to Escanaba, Michigan, under billing to Pliggins & Co. but for delivery to the plaintiff, upon taking up the bill of lading. The plantiff’s claim is that before the car arrived at Escanaba they sold the contents to the defendants and thereupon diverted the car, en route, to Marquette, Michigan, where the defend ants are engaged in business. Upon the arrival of the car at Marquette the potatoes were refused by the defendants. ' Their claim is they bargained for seed potatoes, for distribution at cost, for wartime planting, and that the potatoes which the plaintiff offered to deliver were wholly unsuited for the purpose. Upon the refusal of the defendants to accept the potatoes the plaintiff ordered the car forwarded to Escanaba where, upon its arrival, the potatoes were unloaded and sold by the plaintiff. “It has long been settled that, to satisfy the statute, the essentials of the contract need not be set forth in a single writing over the signature of the party to be charged. A contract sufficient to satisfy the statute may be found from letters or other writings part of which only are signed by the party to be charged, provided the writing not signed by him is clearly recognized, identified and adopted in the writing signed by him, and provided further that the essentials of the contract may be definitely collected from the writings when they are brought together. “This doctrine is ancient and simple and amounts to no more or less than this: That a proposition containing the essential elements of á contract, definitely presented in writing and definitely accepted in writing, constitutes a contract binding on the party so accepting. But, in the promulgation and application-of the rule that various writings may be examined in search of a memorandum sufficient to satisfy the statute, no disposition will be found on the part of the courts, to accept anything less than full and definite assurance from the face of the writings themselves, unaided by parol, that the party to be charged obligated himself over his own signature, to the contract claimed. To that end it is essential the writing signed by the party to be charged contains a clear reference to such other writings as are presented, and as are necessary to establish the alleged contract. The writings signed by the party to be charged must so identify such other writings as to make of their contents a part of the writings signed by him. See Francis v. Barry, 69 Mich. 313; Paul v. Graham, 193 Mich. 447; Graham v. Elevator Co., 60 Ind. App. 697 (111 N. E. 332). '“The test must be whether, laying the writings side by side, and without any parol aid or explanation whatsoever, the court can find that the party to be charged, signed his name to the terms of the alleged contract, with the same degree of certainty and assurance it could so find, wasi the undertaking of the party contained in a single writing. Applying this test to the writings in this case and a memorandum adequate to take the transaction out of the statute cannot, in the opinion of the court, be found. “The letters and writings relied on by the plaintiff to establish the contract sued upon, are as follows; May 26, 1917. Hewett to Spear. Letter: ‘“Confirming our plione conversation |oday, we have entered your order for one car load of potatoes to be shipped to you at Marquette at $3.25 delivered. “ ‘The car will be made up of assortments as follows: “ ‘About 50 bags Round Whites, ” 50 bags Early Ohios, ” 50 bags Burbanks, ” 70 bags Kings. “ ‘This is the only car we know of in Minnesota for sale and we have, had the destination of this car changed to Marquette, Michigan, and we will give you the car number and initials the fore part of the week as soon as we receive same from our loader. “‘We have a good supply of Early Ohios as well as Minnesota stock at Escanaba in case you should need any more for immediate shipment. The stock is moving very fast as farmers in our locality are coming in very fast today and buying seed stock in large amounts. We thank you for this business and hope to hear from you when again in the market.’ “May 29, 1917. Hewett to Spear. Letter: “ ‘We are enclosing herewith invoice covering ATSF car No. 8644 ear of Minnesota potatoes shipped on the 28th. This car should reach you within the next few days. “ ‘These average 2 yz bushel to the sack. “ ‘In case you should need any Early) Ohio potatoes, we have some in stock at Escanaba in which we are getting $3.60 per bu. We would make you a special price on a limited quantity of $3.45 for these early Ohios f. o. b. Escanaba, in case you should have any call for them.' “The invoice referred to in the foregoing letter is dated May 28, 1917, and reads: “ 'Sold, to F. B. Spear & Son, Marquette, Mich., F. O. B. Cars. Initial ATSF Car No. 8644. “ ‘Articles Weight Price Amount. 214 Sacks Minnesota Round White......525 bu.......$3.25......$1738.75 Sacks..............214...........10...... 21.40 $1760.15/ “May 31, 1917. Hewett to Spear. Letter: “ ‘We took up the bill of lading at our bank today covering ATSF car No. 8644 car of potatoes shipped to Marquette from Minneapolis, Minn. This ear is billed to the order of George B. Higgins & Co., notify the Hewett Grain & Provision Co., Marquette, Mich. Wish you would be on the lookout for this car as we are not certain over which road it will arrive at Marquette. We have today drawn another draft on you with the bill of lading attached to cover this ear.’ “June 1, 1917. Spear to Hewett. Letter: “ ‘We have your letter advising that you shipped the potatoes under bill of lading. We will not accept goods shipped under bill of lading, we must have open billing. “ ‘In any event you should not have made the draft on us for full amount as you owe us $158.00 on invoice of April 9th. Will you please let us have your check for this amount.’ “June 2, 1917. Spear to Hewett. Telegram: “ ‘Potatoes here billed Higgins Railway refuses allow inspection. We refuse car.’ “June 2, 1917. Hewett to Spear. Letter: “ ‘We are enclosing herewith letter giving agent of Railroad Co., authority to allow you to inspect ATSF car 8644.’ “June 29, 1917: Spear to Hewett. Letter: “ ‘Your bill is long past due which your Mr. Hewett promised when here to send us a check as soon as he got home. We cannot allow the $40.82 freight on the car of potatoes as he positively stated he would not off set any claim which he might have against the. amount then due us and then past due. If we do not hear from you by return mail, will make draft on you for the full amount of our account and shall expect you to pay same.’ “Overlooking the discrepancy between the letters relating to.the car numbers, and between the letter and invoice relating to the car initials, the letters of May 29th and 31st related to the same car A. T. S. F. number 8644, which, for brevity, may be referred to as the Higgins’ car. But there is no reference in either of these letters to the letter of May 26th, nor in the letter of May 26th to the Higgins’ car. “The letter of-May 26th related to a car load of potatoes to be inferentially forwarded from Minnesota, but in a car which was in no manner identified by initials, number, or otherwise, and, speaking from the face of the letters, which must control here, they did not relate to the same, but to different transactions; not to the same car load of potatoes but to two car loads of potatoes. The letter of May 26th’ had reference to a car load of potatoes to be made up of about 50 bags of ‘Round Whites,’ 50 bags of ‘Early Ohios,’ 50 bags of ‘Burbanks,’ and 70 bags of ‘Kings,’ while the proposition of the letter of May 29th and the invoice that accompanied it, was for the sale of 214 sacks of ‘Minnesota Round Whites,’ and for the sale also of 214 containers or sacks. It is undeniable that a third party, upon reading these letters and the invoice would, in the absence of oral explanation, at once conclude there were two transactions, the subject-matter of one being a car load of potatoes to consist of about 50 bags of a variety known as ‘Round Whites’ and 170 bags of other varieties, at $3.25 a bushel or bag including the bags, and the subject-matter of the other transaction being 214 sacks of potatoes of a single variety known as ‘Minnesota Round Whites,’ at $3.25 a bushel or sack, and 214 sacks at 10 cents each. “To entitle the court to inspect the Hewett letters, or either of them, in connection with the Spear letter of June 1st, in search of a contract in writing on the part of the defendants to purchase the potatoes described in either of the Hewett letters, it must first appear, and in writing over his signature,- that the Hewett letters were received by Spear. It is not enough to show by parol they were mailed to him, or even by parol they were actually'received by him. Their receipt by him must be found in his letter, either by express admission, or by necessary implication from the language of this letter. Unless this rule is strictly applied defeat of the statute would be a simple matter, and would often result where it is sought to establish a contract in writing by letters sent and received. “That the Spear letter of June 1st does not refer to, and that it contains no language whereby it might, by implication, be connected with the Hewett letter of May 26th, or with his letter of May 29th, is unquestionable and unquestioned. Therefore, as an aid in the search for a contract in writing based in part on the Spear letter of June 1st the Hewett letters of May 26th and May 29th, must be eliminated. “It is argued the Spear letter, which states: ‘We have your letter advising that you shipped the potatoes under bill of lading/ could have had reference only to the Hewett letter of May 31st which concludes: ‘We have today drawn another draft on you with bill of lading attached to cover this car/ On the contrary, this quotation from the Hewett letter adds emphasis to the position that on the face of the letters two transactions are indicated and that, without the aid of parol testimony, it cannot be ascertained to what car, to what shipment, or to what bill of lading, the Spear letter had reference. This letter speaks of ‘another draft with bill of lading attached.’ This language justifies the inference ■ that there were two drafts and two bills of lading. It may be supposed there would not be two drafts, certainly not two bills of lading, for the same car. “The Hewett letters present two propositions, one for the sale of about 220 bag's of potatoes to consist of various specified varieties and the other for the sale of 214 sacks of potatoes of a single variety, and contain the suggestion that, to cover these transactions, two drafts and two bills of lading had been forwarded. The Spear letter does not single out either of the Hewett letters, or either of the Hewett propositions. It merely admits receipt of a letter concerning a shipment of potatoes, but whether of the potatoes described in the Hewett letter of May 26th or in the Hewett letter of May 29th, or of potatoes not described in either of these letters, cannot be known without the aid of parol testimony; nor without the aid of parol testimony can it be known whether the bill of lading referred to in the Spear letter, was the bill of lading mentioned in the Hewett letter, or was another bill of lading of another car forwarded by the plaintiff from Minnesota, or out of its Escanaba stock. “But, if the Spear letter had reference to the Hewett letter of May 31st a contract on the part of the defendants to purchase the potatoes in the Higgins car would not result. No invoice accompanied that letter and it neither specifies the subject matter or the terms of sale. It does not state the quantity or variety of the potatoes offered, or the price at which they are offered. Furthermore the Spear letter is a distinct refusal, not an acceptance, of the proposition of the letter (whichever letter it was) therein referred to. “The Spear telegram of June 2d related to the Higgins’ car. But it made no reference to any proposition, written or otherwise, received from the plaintiff and it was not an acceptance of a proposition of any sort, but a direct, positive refusal of the car. “It was a sale to the defendants of the potatoesin the Higgins’ car the plaintiff claimed and upon which claim it sued and recovered. Assuming the Hewett proposition for a sale of the potatoes in the Higgins’ car was sufficient as to subject-matter and price, it was a proposition for the sale and delivery to the defendant, of the potatoes in that car on condition, that, without opportunity for inspection, of the shipment, they first paid the draft which was forwarded, presumably, through the banks, with the bill of lading attached. The proposition was to deliver the defendants the contents of the Higgins’ car, said to be potatoes of a certain kind, provided the defendants, without right to examine the shipment to ascertain the quantity or the quality of the potatoes, would first pay the amount of the draft which the plaintiff sent forward with the bill of lading. Such advance payment was one of the terms of sale proposed by the plaintiff. Unless this term, as well as the price and other terms of the offer, was accepted by the defendants, there could be no contract binding on either the plaintiff or defendants. The Hewett proposition that the defendants must pay the draft and take up the bill of lading, before being at liberty to look into the car to ascertain whether the quantity of potatoes represented to be there was there, and if they were, whether they were sound or rotten, was refused by Spear in and by both his letter and telegram. Consequently a contract binding on either the plaintiff or defendants, did not result. “Following the receipt of the Spear telegram refusing the car, the plaintiff undertook to modify its proposition to the extent of allowing the defendants the right of inspection before payment of the draft and to that end they mailed Spear an order on the railroad to allow the inspection but to the proposition as thus modified, Spear made no response either by letter or telegram. “That Hewett understood his proposition for a sale and delivery of the potatoes in the Higgins’ car, upon payment of the draft and without right of inspection, was refused, is evidenced by his offer of modification. And that Spear accepted the proposition as modified, there is no claim and no room to claim. The only communication in writing, from Spear to Hewett, following the Spear telegram of June 2d refusing the car, is his letter to the plaintiff of June 29th. This letter was written long after the Higgins’ car had been re-shipped to Escanaba and its contents removed and disposed of by the plaintiff. It speaks of a freight item of $40.82 on a car load of potatoes but whether on the Higgins’ car, or on some other car, it is impossible from the letter, or from any other writing in the case, to tell. Nothing can be claimed for this letter. “Clearly these writings, in and of themselves, do not show a contract in writing on the part of the defendants to purchase the Higgins’ car, or any other car of potatoes from the plaintiff, and for that reason the verdict should have been directed.” We had occasion, in Wagner-White Co. v. Co-operative Ass’n, ante, 58, handed down March 22, 1923, to pass upon the principal question here involved, and the opinion of the court, written by Mr. Justice Bird, supports the conclusion reached by the circuit judge in this case. Plaintiff claims there was a legal acceptance of the potatoes and the statute of frauds does not apply. An examination of the record does not disclose an acceptance of the potatoes by defendants. It is true defendants were given access to the car and examined the potatoes, but they rejected the shipment. Having in mind the correspondence and the testimony relative to such claimed delivery we do not find an acceptance thereof by defendants. The statute of frauds provides that: “A contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards shall not be enforceable by action, unless the buyer shall accept part of the goods or choses in •action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agént in that behalf.” 3 Comp. Laws 1915, § 11835, subd. 1. The note or memorandum mentioned in this statute is not, of course, the contract, but it is the only evidence by which a contract is to be proved. The statute is a rule of evidence wholly excluding parol evidence and requiring a note or memorandum signed by the party to be charged, either within itself sufficient or made so by reference to other writings so clearly adopted by the party to be charged as to render parol proof of what the contract really was unnecessary. An examination of the record and authorities upon the subject leads us to agree with the circuit judge. The judgment is affirmed, with costs to defendants. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Bird, J. Defendant Louis Brodsky and his wife, Sadie Brodsky, made contracts for the erection of an apartment and business building on their lots in the city of Detroit, described as lots 21 and 22, Grosman and Cushing’s subdivision, and which are known in this record as “the Warren avenue property.” They arranged for á mortgage loan thereon of $46,650, but, under the terms of the loan, no money was to be advanced thereunder until the roof was on the building. It took considerable money to finance the building up to that point. Brodsky and wife had only $4,000. That was soon expended. They very soon had to have more money. Brodsky applied to his brother-in-law, Max Weinstein, one of the defendants herein, for a loan. Weinstein had no money to loan, but he conveyed to Brodsky lot 3, Bolton’s subdivision, known in the record as the “Mack and LeMay property,” with the permission to place a mortgage loan thereon. Brodsky made a short loan thereon for $5,000. It soon became due and the party wanted his money. Brodsky could not pay it and, besides, he needed more money, so he applied to Sam Shapero, his attorney, to obtain for him a loan of $10,000. This loan Shapero secured from his mother and sister and they insisted upon having security, not only on the Mack and LeMay property, but also on the Warren avenue property. Both were conveyed to them by deed as security for their loan. This $10,000 loan was not sufficient to take care of Brodsky’s creditors and contractors. The workmen quit work just as the building was nearly finished. This severely embarrassed Brodsky. Soon afterward he was forced into bankruptcy proceedings and declared a bankrupt. Plaintiff, who was one of his creditors, was elected trustee of the bankrupt’s estate. He filed this bill, claiming fraud and collusion between Brodsky and the other defendants with whom he had been doing business. The principal point of attack was the deed of both properties which was made to Bune Shapero and her daughter, Lillian Stiglitz, to secure the $10,000 loan. The issue was tried out and a decree made, providing that the Warren avenue property should be turned over to the trustee to satisfy the liens and claims in the following order: “ (a) The mortgages thereon in the aggregate amount of $46,650 and all accrued interest. “(b) The allowable claims of the creditors of the estate of defendant Louis Brodsky and interest thereon at five per cent, per annum from date of allowance by referee in bankruptcy. “(c) The balance then remaining, to the extent of seven thousand five hundred ($7,500) dollars with accrued interest, be deposited in this court for the use and benefit of defendants Lillian Stiglitz and Bune Malke Shapero, and all over such sum, if such there be, be deposited in this court for the use and benefit of defendant Louis Brodsky. “(3) That in case there should be any deficiency in taking care of the claim of Lillian Stiglitz and Bune Malke Shapero up to the sum of seven thousand five hundred ($7,500) dollars out of the funds available for that purpose from the West Warren avenue property, then the balance remaining of said $7,500 may be a lien upon the Mack and LeMay property. “ (4) That the defendants Lillian Stiglitz and Bune Malke Shapero are hereby ordered and decreed to execute and deliver to the plaintiff the necessary conveyances of the said West Warren avenue property, in trust, however, for the purposes herein above mentioned; and they are further ordered and decreed to convey and transfer to defendant Max Weinstein the Mack and Le May property, at such time as the claim of said defendants Lillian Stiglitz and Bune Malke Shapero to the amount of seven thousand five hundred ($7,500) dollars, shall have been satisfied out of the Warren avenue property primarily and any deficiency out of the Mack and LeMay property, or by cash in lieu thereof.” One of the first objections made to this decree is that the two lots which constituted the Warren avenue property were owned by Brodsky and his wife as tenants by the entirety, and that they being so held could not be subjected to the payment of Brodsky’s individual debts. This appears to us as a very serious question. We h'ave no opinion by the chancellor nor any brief from the appellee and, therefore, are deprived of their views on the question. The testimony shows that certain moneys of Sadie Brodsky went into the purchase price of the lots, and the conveyance was made to her and her husband. They being tenants by the entirety, the premises could neither be involuntarily sold nor incumbered for the debts of either. Vinton v. Beamer, 55 Mich. 559; Lewis’ Appeal, 85 Mich. 340 (24 Am. St. Rep. 94); Dickey v. Converse, 117 Mich. 449 (72 Am. St. Rep. 568). See, also, Beihl v. Martin, 236 Pa. St. 519 (84 Atl. 953, 42 L. R. A. [N. S.] 555); Meyer’s Estate, 232 Pa. St. 89 (81 Atl. 147, 36 L. R. A. [N. S.] 205, Ann. Cas. 1912C, 1240); In re Beihl, 197 Fed. 870. It was not alleged in the bill, and the testimony does not show, that the tenancy was created for a fraudulent purpose, nor was Sadie Brodsky made a party to the suit. Any finding by the decree that Louis Brodsky was the sole owner of the Warren avenue property would not be binding on Sadie Brodsky. Under this view, subdivision “b” of the decree heretofore quoted relating to the general unsecured claims would be of no force or effect. The balance of the claims are secured. Considerable discussion is had between the defendants as to the readjustment made by the decree of the security of defendants Bune Malke Shapero and Lillian Stiglitz. In view of the conclusion we have reached in the case it will be unnecessary to discuss that matter. Speaking generally of the allegations of fraud, it may be said that no fraud was shown in the several transactions. Brodsky never claimed to own the Mack and LeMay property, except for a qualified purpose, to which Weinstein, the owner, had consented. There was no claim by Mrs. Shapero and her daughter Lillian that they owned the Mack and LeMay property or the Warren avenue property. They had deeds thereof, but those were taken by them to secure their $10,000 loan. Brodsky was turning and twisting in every conceivable way to obtain loans and get his building finished. He traveled some very rough roads, as people usually do who get themselves info the position he was in, but the record fails to show any fraud upon his part in his dealings with the other defendants. Whenever he secured money on the several loans he applied it on claims for materials and labor. The only evidence of questionable or fraudulent conduct we find in the record was the act of Brodsky’s attorney, charging him $2,500 for securing a loan of $10,000. The attorney had no difficulty in obtaining this loan, as it was made by his mother and sister. This charge was very properly disallowed by the decree. The decree will be reversed and the bill dismissed, with costs to the defendants who have appeared and filed briefs in this court. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

On Rehearing. Per Curiam. This case involved a claim for damages charged to defendant as terminal carrier in the transportation of an interstate shipment of a car load of horses. In the original opinion (219 Mich. 665) the case was held properly submitted to a jury on the theory that the terminal carrier was presumptively liable for damages to the consignment resulting from negligence during transportation from the initial point. In the opinion Georgia, etc., R. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541), was cited as authority and quoted from. In their motion and brief for a rehearing counsel for defendant contend: “The court erred in holding that the liability of this defendant, the terminal carrier of the shipment of horses, is to be determined by the Blish Milling Company Case, 241 U. S. 190 (36 Sup. Ct. 541). The late case of Oregon, etc., Nav. Co. v. McGinn, 258 U. S. 409 (42 Sup. Ct. 332), decided by the Supreme Court of the United States, since the instant case was submitted to, this court, holds that the language from the Blish Case quoted by this court, does not apply to a terminal carrier.” The McGinn Case also involved the question of damages to a car load of horses during interstate transportation in which it was sought to hold the terminal carrier. There, as here, the initial carrier issued a standard form bill of lading. It was for transportation of horses from Grand Island, Neb., to Spokane, Wash., routing the shipment over the Union Pacific line to Granger, Wyoming, thence over the Oregon Short line to Huntington, Or., and thence over the defendant terminal carrier’s line to its destination at Spokane. A judgment directed for defendant in the United States district court of appeals was reversed by the circuit court of appeals (265 Fed. 81), which cited and apparently relied on the Blish Case. On appeal the United States Supreme Court reversed the court of appeals holding that court had apparently misinterpreted the Blish Case in arriving at its decision. The portion of the opinion in the Blish Case said to have been misinterpreted by the court of appeals is quoted as follows: “The terminal carrier takes the goods under the bill of lading issued by the initial carrier, and its obligations are measured by its terms; and if the clause must be deemed to cover a case of misdelivery when the action is brought against the initial carrier, it must equally have that effect in the case of the terminal carrier which in the contemplation of the parties was to make the delivery.” The court then said (in the McGirni Case): “What was decided in the Blish Case was that the terminal carrier was liable for failure to make delivery, just as the initial carrier would have been if it had been sued for misdelivery, because by the terms of the bill of lading each was under obligation to make final delivery. The suit before us is not for misdelivery or other fault of the carrier sued, but for the fault, as alleged, of a prior connecting carrier.” Manifestly no question of presumption or burden of proof was involved in the McGinn Case, since it was alleged in plaintiff’s pleading that the damage sought to be recovered for was the fault of the Oregon Short Line, a prior connecting carrier, caused by giving the horses unwholesome food and water at a named station on its line in Idaho, which resulted in the death of several of them. Here the action is for negligence of the carrier sued, directly so charged in plaintiff’s declaration. The McGinn Case in no way disturbs numerous former decisions that the Carmack amendment has not changed the common-law doctrine of liability of a common carrier for loss occurring on its own line through its negligence. Hutchinson in his work on Carriers (Bd Ed.), vol. 3, § 1348, has summed up that rule as follows: “But a connecting carrier, who has completed the transportation and delivered the goods to the con signee in a damaged condition or deficient in quantity, will be held liable in an action for the damage or deficiency, without proof that it was occasioned by his fault, unless he can show that he received them in the condition in which he has delivered them. The condition and quantity of the goods when they were delivered to the first of the connecting carriers, being shown, the presumption will arise that they continued in that condition down to the time of their delivery to the carrier completing the transportation and making the delivery to the consignee, and that the injury or loss occurred while they were in his possession;” citing many decisions. In Chicago, etc., R. Co. v. Produce Co., 258 U. S. 369 (42 Sup. Ct. 328), handed down on the same date as the McGinn Case, the above statement of the common-law rule is quoted with approval. That opinion concludes with the statement: “Nothing in the (Carmack) amendment indicates a legislative purpose to abrogate the accepted common-law doctrine concerning presumption. The suggestion that by imposing additional liability upon the initial carrier the amendment provides an adequate remedy for shippers, and thereby removes the necessity for any presumption against the terminal one and impliedly abrogates the rule, is unsound. There are adequate reasons why shippers should have the benefit of both; and we think congress so intended.” After carefully considering this record, in the light of the brief and argument of counsel on rehearing, we find no further material point not before presented and considered, or anything misleading in the former opinion which calls for change or reversal. The judgment will stand affirmed.

Moore, J. This is a divorce case. The parties were married in 1912, and separated in 1918. The bill of complaint alleges cruelty and failure to support, and among other things counts upon the defendant’s attentions to his cousin and the neighborhood gossip and embarrassment to her on account thereof. The court granted the divorce and awarded by way of alimony $3,000; also expenses which defendant had incurred in the amount of $122, and an attorney fee of $250. The answer filed in this case was very short. It admitted some things averred in the bill of complaint were true, but contained a general denial of the averments of failure to support, of cruelty and of the value of defendant’s property. The court found the defendant had admitted to his wife that he was worth $15,000 and upwards, and that there was enough evidence to fairly support the admission. The defendant appeared in court by counsel, but did not himself appear, and produced but one witness who testified concerning the making of a deed by the mother of the defendant. The defendant does not question that a decree of divorce should be granted, but his counsel says the amount of alimony awarded is more than the defendant is worth, and closes his brief by the statement: “We contend that five hundred dollars as a lump sum together with the household furniture and one hundred dollars attorney fee was adequate under the record in this case.” The case was tried in open court. The chancellor filed a written opinion of considerable length, from which we quote. Speaking of the testimony of the plaintiff the court said: “I think the record ought to show I do accept her testimony substantially as correct, and in so doing, I must necessarily find cause for divorce, and, as far as the husband is concerned, it is a most aggravated case. She was nearly twenty years of age when married, so she has spent with him ten years of the best part of her life. Her opportunities for marriage and other opportunities in life are considerably diminished by this marriage. * * * “Now it appears that the defendant told his wife that he was worth fifteen thousand dollars and upwards. There is, in my judgment, enough evidence in the case that will support and corroborate that. The court should not award alimony upon surmise, but from the testimony from which the inference may be legitimately drawn. It seems to me that there is enough in this record to sustain the finding that the defendant was worth at the time he talked to his wife about this matter approximately fifteen thousand dollars. While the defendant was looking forward to taking life more or less easy, his wife, during that period was working hard. The amount to be allowed must be based on the gravity of misconduct and the breach of the marriage contract on his part. We must keep that in mind. If he was willing to give three thousand dollars, and it appears that he was, he knew his own circumstances better than anybody else did. The evidence was all in his possession, knowing his own circumstances, knowing his financial worth, as he must have known it, if he considered it fair to give her three thousand dollars,. I don’t know why the court should hesitate to consider it fair. * * * “The defendant is not here, and no effort is made to account for his absence; he is wilfully absent. His failure to controvert the testimony of his wife or explain or account for it and give his version of it justifies the court in drawing any legitimate conclusions that may be drawn from the evidence against him and in favor of his wife.” Counsel argues that the testimony as to his client’s effort to settle with his wife was incompetent as he had a right to buy his peace if he could. The important question in the case was one of fact. The defendant knew whether he made the statements to his wife as testified to by her. He also knew what property he had and its value. It would have been a good time for him to help the chancellor in his effort to arrive at a conclusion by telling him about it. He did not do so. Upon this record we are not satisfied that the court erred. The decree is affirmed, with costs to the appellee. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

McDonald, J. Plaintiff brings this action to restrain the defendant from interfering with her possession of certain real estate in the city of Grand Rapids, Michigan, and to compel him to convey to her any interest which he may have acquired in the property by virtue of certain tax deeds for city taxes. Her bill alleges that she was the wife of James M. Graham, who died intestate on August 20, 1904, leaving as his sole estate the property in question consisting of a house and lot in Grand Rapids. They had no children. The property was their homestead. After his death she continued to reside on the premises until June, 1915, when she was adjudged an inebriate and mentally incompetent, placed under guardianship and committed to the Michigan asylum at Kalamazoo by the probate court for the county of Kent. She is still there and under guardianship. The guardian has done nothing to conserve the property. It was sold by the city for taxes for the years 1915, 1916 and 1917. Defendant having acquired the title commenced proceedings in the superior court of Grand Rapids for a writ of assistance, whereupon plaintiff brought this action. On the hearing the superior court judge dismissed the petition for a writ of assistance, canceled the tax sales and permitted the plaintiff to redeem on the payment into court of $84.45 together with taxable costs, including an attorney fee of :$50. From the decree entered the defendant has appealed. It is first urged by counsel for the defendant that plaintiff being mentally incompetent and under guardianship could only maintain her suit by a next friend or by her guardian. This objection was not raised in the lower court. It was not called to the court’s attention by the pleadings or by motion to dismiss. The statute, section 28, chapter 12 of the judicature act (3 Comp. Laws 1915, § 12379), provides that in such cases before the declaration or bill of complaint is filed or any process is issued, the circuit judge shall appoint a competent and responsible person to appear as next friend for such plaintiff. “But it does not necessarily follow that a strict compliance is indispensable to the validity of the proceedings.” Kees v. Maxim, 99 Mich. 493. See, also, McDonald v. Weir, 76 Mich. 243; Sick v. Aid Ass’n, 49 Mich. 50; Dillon v. Howe, 98 Mich. 168. “It is not an absolute prerequisite to jurisdiction of an action by an infant that he should sue by guardian ad litem or next friend; but a failure to appoint a guardian ad litem or next friend for an infant plaintiff merely affects the regularity of the proceedings, and the defect is one which before verdict is amendable, and after verdict and judgment is cured.” 22 Cyc. p. 644. The guardian, who should have looked after the interests of his ward, abandoned the plaintiff and her property. The court should have appointed some other competent person to represent her in prosecuting her suit and undoubtedly would have done so if the matter had been called to his attention. If counsel desired to raise the question he should have done so seasonably by motion to dismiss. Not having done so, he is now in no position to complain. However, he has not been prejudiced. So far as the defendant’s interests are concerned the purpose of the appointment of a next friend is that there may be some responsible party to whom he may look for his costs in case he prevails in the suit. As the trial court directed the plaintiff to pay the amount of the taxes, interest and costs into court as a condition to the canceling of the deed, the object of the statute is secured to the defendant as effectually as it would have been if a responsible party had been appointed. In this respect the decree cured any defect in the proceedings. It is next contended by counsel for the defendant that the property belongs to the estate of James M. Graham, that the plaintiff was not the wife of Graham and has no interest upon which she can maintain her suit. Counsel bases this contention on the claim that Graham had a wife in Buffalo, New York, from whom he was never divorced, and who lived until December, 1895. This claim is not supported by the evidence. There is no proof of such a marriage. There is evidence that he had two children, now living in New York State. Nineteen years have elapsed since their father’s death, a fact of which they had knowledge, and no claim has been made by them to any part of his estate. If they are lawful heirs with any interest in the property there is no satisfactory proof of it in this record. For eleven years after Graham’s death the plaintiff continued to occupy the premises as her home, paid the taxes, made improvements and claimed to be the sole owner. For many years previous to that time she and Graham lived on this property, claiming to be husband and wife. So far as the record shows there was no break in their relations until his death in 1904. The record does not show that any attempt has been made to administer the estate'. The guardian appointed to look after her interests has abandoned both the plaintiff and the property. She is the only person, except the defendant, who is asserting any title or right to possession. There is no merit in defendant’s claim that she is without interest sufficient to maintain this suit.- It is conceded that, at the time of the assessment of the taxes and the acquiring of a deed by the defendant, the plaintiff was mentally incompetent and under guardianship. This fact settles the question of. her right to equitable relief under authority of section 4066, 1 Comp. Laws 1915, which provides: “In case of the sale of lands belonging to any infant, idiots, minor heirs, insane, or incompetent persons, if it shall appear to any court that it is necessary to protect the rights of such incompetent person, to order any sale canceled, or deferred, it may so order, and in such case, all proceedings may be stopped, sale canceled or actions stayed until’ the proper proceedings can be had to protect the rights and property of such incompetent person or persons.” In Foegan v. Carpenter, 117 Mich. 89, it was held that this statute applied to infants and to incompetent persons under guardianship as well as to those who had no guardians. • And in Young v. Blanchard, 165 Mich. 340, it was said: “Under the power given to this court under this section to cancel any sales of lands of incompetent persons and others, if necessary to protect them, such cancellation may be decreed after a deed of the tax land has been made' by the State to the purchaser and after a conveyance by him to another, and that said statute is not affected by the provisions of the tax law limiting the time to move to sét aside the tax sales to one year in- certain cases and providing that in others no sales shall be set aside after confirmation. The court also held that the owner will be compelled to do equity by refunding to the tax purchaser, who did not know of the owner’s incompetency, the purchase price and payment made by the former to the State with interest, less the net revenue, if any, that he may have received from the property.” Under authority of these decisions and the section of the statute above quoted, the superior court judge made a correct disposition, of the case. Plaintiff was equitably entitled tó a cancellation of the deeds, and defendant was entitled to reimbursement for money expended in the payment of her taxes. The decree provided that, as a condition to the setting aside of the tax deeds, the plaintiff pay to defendant the amount paid by him for taxes, together with the interest and costs, including an attorney fee of $50. This was equitable. The decree is affirmed. Plaintiff will have costs in this court. Fellows, Clark, Bird, Sharpe, Moore, and Steers, JJ., concurred. WlEST, C. J., concurred in the result.

McDonald, J. The plaintiffs, who are citizens and resident taxpayers of the city of Detroit, seek to restrain, the city from proceeding with the erection of a municipal garage without first having complied with the city charter relative to the letting of contracts to the lowest responsible bidders, and without having levied a tax assessment or provided for a bond issue to defray the costs of construction. It appears that, desiring to provide a central garage for municipal use, the common council directed the city controller to supply $234,000 from the motor transportation fund to be used in purchasing a site. The site having been obtained, the council authorized the department of . motor transportation to proceed with the erection of the building, supplying the labor by the use of the city’s forces. It was estimated that 60 per cent, of the costs of construction would be for labor, and it was intended to perform this labor with certain of the city employees under the direction of Mr. Markham, the chief construction engineer of the municipal railway system. For the remaining 40 per cent, contracts were to be let to the lowest responsible bidders. General plans calling for the construction of a building to cost about $600,000 were approved by the council on the 2d day of February, 1922. After the work was commenced the plaintiffs filed this bill alleging that the defendant was without authority to delegate the erection of the building to the motor transportation department, that no bond issue had been provided for and no tax assessment levied before the commencement of the work, and that the use of the city’s forces in any part of the construction was in violation of the city charter. The defendant answering says that the city charter does not require such work to be done by contract, that the method to be employed is left to its discretion, claims that it has provided for the cost of construction as required by the charter and insists that in any event the plaintiffs as private citizens cannot maintain their suit. On the hearing the circuit judge allowed the injunction for the reason that the defendant was without authority under the city charter to authorize the construction of the building by the department of motor transportation, holding that it must be erected under the supervision and control of the commissioner of public works. Thereafter the council by resolution transferred the work to the department of public works, and the defendant filed a motion for leave to-amend its answer setting up these facts. The case was reopened, proofs were taken and the circuit judge then made a decree dismissing the plaintiffs’ bilk From the decree so entered the plaintiffs have appealed. The record presents the following questions: Are the plaintiffs proper parties to institute and maintain this suit? It is claimed that as private citizens they cannot institute proceedings to redress grievances on behalf of the public when their individual grievances are not distinct from those of the public at large. This question has been before the court on several occasions. In McManus v. City of Petoskey, 164 Mich. 390, it was said: “The complainant as a taxpayer has a right to ask chancery to restrain a threatened misuse of a city fund, in two classes of cases, viz.: “First. Where his interest in the fund or threatened damage to his property interest by its misuse amounts to $100. “Second. Where he has land worth $100 which is threatened with sale, or liable to a lien, for a tax, in consequence of the proposed misuse.” This case sustains the right of the plaintiffs to institute their suit. See, also, Thomas v. Board of Sup’rs of Wayne Co., 214 Mich. 72, and cases therein cited. Has the city of Detroit authority under its charter to construct this building or any part of it involving an expenditure of more than $500 without letting contracts therefor? The city has in its employ many draftsmen, engineers, mechanics, and common laborers. It proposes to use these forces in performing the larger part of the labor which is estimated at 60 per cent, of the cost of the building. The plaintiffs claim that the charter does not permit the city to use its forces for such purpose, but that all work, where the cost of construction exceeds $500, must be done by contract after competitive bidding. The question whether a city can construct a public building itself without letting any contract therefor, is, of course, to be determined solely from the provisions of its charter. The charter of the city of Detroit confers upon the common council the power “to authorize the construction of public buildings.” Unless the construction of such buildings be limited to certain prescribed methods, it is not an unlawful exercise of power to follow some other method. In other words, unless by express language or by implication the charter requires the construction to be by contract, it may be by day labor of the city’s employees. In the briefs of counsel our attention is called to the following provisions of the charter. Section 8, chapter 8 of title 4 of the Detroit city charter reads as follows: “Whenever the common council shall order any work of public improvement, it shall cause notice to be given forthwith to the commissioner of public works, who shall proceed to do "Such work or to make contracts therefor, subject to the approval of the council.” Sections 2 and 3, chap. 7, tit. 6, provide: “Sec. 2. No contract shall be let or entered into for the construction of any public work, or for any work to be done, or for the purchasing or furnishing of supplies for said city not herein provided for, and no such public work, performance, purchasing or supplying shall be commenced until approved by the common council, and until the contract therefor has been duly approved and confirmed by the common council, and a tax or assessment levied to defray the cost and expense of the same, and no such work, supplies, and materials shall be paid for or contracted. to be paid for, except out of the proceeds of the tax or assessment thus levied. “Sec. 3. No contract for the construction of any public building, sewer, paving, graveling, planking, macadamizing, nor for the construction of any public work' whatever, nor for any work to be done, nor for the purchasing or furnishing of any material, printing- or supplies for the city, if the expense of such construction, repairs, work, printing, materials, or supplies exceeds five hundred dollars, shall be let or entered into except to and with the lowest responsible bidder, with adequate security. No contract involving any expenditure exceeding five hundred dollars shall be let until a notice calling for bids shall have been duly published in at least one daily paper published in the city, for such period as the common council shall prescribe: Provided, however, that all purchases of materials and supplies of a less amount shall be on a competitive basis in the event that formal bids are not taken therefor.” As counsel for the plaintiffs read these provisions of the charter, “No discretion is conferred upon the city or its officers to determine whether the work or improvement shall be constructed under contract or by day labor. No words are used in the charter which form the slightest basis for holding that it is discretionary or optional with the common council. If the cost of the work or improvement exceeds the sum of $500, the provision is mandatory that a contract shall be let after competitive bidding.” In support of this construction counsel say that, “the reasoning of the court in City of Chicago v. Han reddy, 211 Ill. 24 (71 N. E. 834), presents the best solution of the question in the instant case and is the controlling case on the subject.” We are unable to agree with this contention. The whole argument of the court in that case is based upon a provision of a charter which expressly requires all work and public improvement where the amount to be expended exceeds $500, to be let to the lowest responsible bidder. “Of course, where a statute or charter declares that any work must be let to the lowest bidder, there is no possible basis for any other construction than one making bids and contracts, imperative.” Perry v. City of Los Angeles, 157 Cal. 146 (106 Pac. 410). There is no such provision in the Detroit city charter. The sections referred to relate only to instances where it is proposed to do the work by contract, but nothing is said "from which an inference could be drawn that it could not be done by some other method. In fact, section 8 provides that when the work is ordered by the council and notice, thereof is given to the commissioner of public works he “shall proceed to do such work or make contracts* therefor.” Counsel construe this to mean that he shall proceed to do such work only when the cost is less than $500. There is nothing in the language of the charter that could furnish a basis for any such construction. The plain and only inference from section 3 is that where the cost of construction is less than $500 the work may be done by contract without competitive bidding. No reference is there made to any other mode of doing the work. If the framers of the charter had intended that, when the cost of construction exceeded $500, all work .should be done by contract, they undoubtedly would have said so in express teyms. The omission of any definite method of doing the work would indicate that they intended to leave something to the discretion of the officials who had it in charge. We think the language used in Perry v. City of Los Angeles, supra, is applicable here. Speaking of the omission from the Los Angeles city charter of a provision requiring all work and improvements to be done only by contract, the court said that if it had not been so intended, “it would have been the simplest matter in the world to say so in plain terms, as has been said over and over again in other acts and charters. The failure to do so indicates that the framers of these charter provisions were guarding solely against the method of letting contracts for public work otherwise than to the lowest responsible bidder, after public notice of the work to be done thereunder; the object being to prevent favoritism in the matter of letting contracts and the payment of a greater price than the work was reasonably worth. There is nothing in the language used to indicate that it was designed to prevent the doing of the work by the city itself through the officers having such work in charge.” And under a similar charter provision it was said in Home Building & Conveyance Co. v. City of Roanoke, 91 Va. 52 (20 S. E. 895, 27 L. R. A. 551): “We see nothing in that clause of the charter which inhibited the city from constructing public buildings or improvements under direction of its own engineers and officers. It simply provides that when such buildings or improvements are let to contract, it shall be to the lowest bidder, and after advertisement, as provided. Any other construction of that provision would prove' dangerous, if not injurious, to any city, since we see from this record that if that construction had been followed, the approaches to the overhead bridges in the city of Roanoke would have cost the city $8,000, or $10,000, more than they will under the mode of construction adopted by the city.” We find nothing in the charter of the city of Detroit which expressly or by implication prevents the city from using its own forces in performing the labor necessary for the construction of its municipal garage, though the cost of such labor should exceed $500. The city of Detroit has the power under its charter to construct public works or improvements where the amount to be expended exceeds $500 without the letting of contracts for the work. It may do such work with its own forces under the direction and control of the commissioner of public works. Was the defendant without authority to commence and carry on the construction of the building without having provided the necessary funds by tax levy or bond sale ? Section 2 of the charter which we have already quoted provides in part that no such work shall be commenced until “a tax or assessment is levied to defray the cost and expense of the same, and no such work, supplies and materials shall be paid for or contracted to be paid for, except out of the proceeds of the tax or assessment thus levied.” Other sections of the charter considered in connection with the above show that expenses of constructing the building in question can be provided for in three ways only, viz., by tax levy, by bond issue or by borrowing from the general surplus fund. It is clear from the testimony of the city controller that the defendant did not follow any of these three methods, but proposed to meet the expenses by diverting money from various other funds. The claim of counsel for defendant in his brief, that to meet this expense appropriations were made and that the amounts were collected in the municipal budgets for the years 1920 and 1921, finds no support in the record. The evidence shews that the money so raised was for other purposes and belonged to other funds. The council was acting without authority in authorizing the city controller to transfer money from other funds to a municipal garage fund. Niles Bryant School of Piano Tuning v. Bailey, 161 Mich. 193. In this matter the charter leaves the council no discretion, but points out the methods to be followed in meeting the expense of construction. It is not made imperative that the money be in the city treasury before the building is commenced, but it must be provided for by lawful borrowing or by tax levy. Borrowing from this and that fund does not meet the requirements of the charter, but is in contravention of its express provisions. Because the work was commenced and was being carried on without complying with the provisions of the charter relative to providing a fund to defray the costs of construction, the plaintiffs are entitled to a decree enjoining further prosecution of the work. The decree of the circuit judge is reversed and a decree in harmony with this opinion will be entered. Plaintiffs will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Clark, J. Lakeview, Montcalm County, Michigan, is a village on a line of the Pere Marquette Railway Co. In the late fall or early winter of 1917 perishable shipments were moved from that point principally in box cars, the company being able to supply refrigerator cars for less than one-third of such shipments. No discrimination in the service is claimed or shown. The local agent was supplied with a rubber stamp and directed to place upon the bill of lading, in case a box car was used for perishable shipment and when such car was not insulated by lining throughout with paper, the following: “To be forwarded in an ordinary box car entirely at the owner’s risk of damage by weather conditions.” The agent testified: “This was in accordance with instructions which we receive each year in the fall about the time of the first freeze to place that stamp ' on all perishable freight loaded in common box cars which the shipper does not protect on the inside by insulating the car. These two cars were not insulated by the shipper and no false bottoms were built for the cars. The cars were not protected by lining the car throughout with paper, no stove was placed in them and no man accompanied the shipments.” A shipper applied to the local agent for two refrigerator cars for shipping pickles in barrels to the plaintiff at Hartford, Conn. The cars were not furnished. After waiting about two weeks the shipper selected the best two box cars in the yard, into which he loaded the pickles. The picklés were in brine of strength to withstand a temperature of 10 or 12 degrees Fahrenheit. No precaution against frost was taken except that some planks were laid on the floor of the cars', and the crevices about the doors were filled with paper. The bills of lading were .stamped as indicated. The cars were received by the carrier on December 5th and December 8, 1917, respectively. The agent routed the first car, 189015, via P. M. Ry. to Black Rock, D. L. & W. Ry., etc., the second car, 9668, via P. M. Ry. to Suspension Bridge, N. Y. C. Ry., etc. The cars moved into Canada without unreasonable delay. They were held at or near St. Thomas for 4 or 5 days because of a snow storm which tied up traffic on defendants’ lines and on eastern lines. The storm was accompanied by low temperatures. After being released they moved eastward and finally reached destination, having consumed in transit 32 and 41 days respectively. The pickles at destination were found to be frozen “solid, and we couldn’t get them out without chopping them out,” and worthless. In the record is a schedule of temperatures to which they were subjected en route. There is also a schedule of temperatures to which they would have been subjected had they moved on ordinary and usual running time. We quote from brief of counsel schedule of minimum temperatures: “Car No. 9668. December 9. Car was at Ply mouth; temperature was 8. Car should have been at Plymouth; temperature was 8. December 10. Car was at Windsor; temperature was 1. Car should have been at Windsor; temperature was 1. December 11. Car.was at Cedar Springs; temperature was 2. Car should have been at St. Thomas; temperature was 4. December 12. No data. Car should have been at Suspension Bridge; temperature was 4. December 13. Car was at St. Thomas; temperature was 4. Car should have been at Syracuse; temperature was 13. December 14. No data. Car should, have been at West Albany; temperature was 22. December 15. No data. Car should have been at Springfield; temperature was 13. December 16. No data. Car should have been at Hartford; temperature was 10. December 18. Car was at Suspension Bridge; temperature was 16. “Car No. 189015. December 7. Car was at Port Huron; temperature was 20. Car should have been at Port Huron;' temperature was 20. December 8. No data. Car should have been at St. Thomas; temperature was 18. December 9. Car was at St. Thomas; temperature was 1. Car should have been at Black Rock; temperature was 4. December 10. Car was at St. Thomas; temperature was 4. Car should have been at Scranton; temperature was 5. December 11. Car was at St. Thomas; temperature was 4. Car should have been at Port» Morris; temperature was 7. December 12. Car was at St. Thomas; temperature was 6. Car should have been at Danbury; temperature was 11. December 13. Car was at St. Thomas; temperature was 7. Car should have been at Hartford; temperature was 7.” There is also testimony in the record of average temperatures for the days in question. We quote from reports to defendants: “On December 8th it is beginning to snow and getting colder. On December 9th I find the situation at Niagara Frontier as follows: 'No freight trains moving, nor have any moved since Saturday’ (Saturday was December 7th). * * * “This particular statement covers the 24-hour period up to December 9th, midnight,' and for the period ending midnight, December 9, 1917, the report is as follows: ‘All trains canceled, or trains annulled.’ * * * “The report of December 10th, it reads as follows: ‘No freight trains moving nor have any moved since Saturday.’ * * * “This exhibit refers to traffic ending midnight on the 11th and says: ‘Symbol trains annulled, hard storm condition.’ “Reading now another report for December 11, 1917, addressed to Mr. J. J. Corcoran at Detroit and issued at St. Thomas, I find the following: T hope you will hold back all freight possibly can at Detroit and Mr. Anderson at Sarnia the same on east-bound freight until we can get opened up at the frontier.. We cannot take another car at Delbert yard. We are starting to fill passing tracks and they will fill up quickly. Middlemarch, Iona and Rodney will be filled tonight as each train has to set out entire train.’ * * * “On December 15th I find that the report shows that there were 452 cars set out on the Canadian division, eastern frontier, and these were all eastbound cars.” There was evidence of a bad storm over the entire Canadian division of the carrier on December 9th and that the weather conditions toward Niagara were “snow about a foot deep and high northwest winds drifting snow six below zero” and of many cancellations of trains in that territory. Plaintiff’s declaration claims damage by freezing and charges “failure to .use due care in and about transportation and delivery and failure to make delivery within a reasonable time.” Other facts must be stated later. Plaintiff had judgment in a trial without a jury. Defendants bring error. The findings of the trial judge must be sustained unless they are contrary to the clear weight of the evidence. If negligence of the carrier was the proximate cause of the loss of the pickles it is liable although frost may have contributed to cause the loss. See Ignaszak v. Refrigerator Co., 221 Mich. 10, and cases cited. But unless the carrier has been guilty of ;such causal negligence it is not liable, and on the record we find it unnecessary to consider any other question. There is insufficient proof to warrant a finding that the delay was the proximate cause of the loss of the pickles loaded into car 189015, which moved from Lakeview on December 5th. The finding to that effect 'is against the clear weight of the evidence. The pickles were subjected to destructive temperatures before there was any delay which might be termed unreasonable or negligent. It clearly appears that had the pickles moved on usual time and without delay they would not have escaped the area of low and destructive temperatures, would not have escaped freezing. It •cannot be said that the freezing followed or was caused •by the claimed unreasonable delay. See Young & Co. v. Railway Co., 201 Mich. 39; 15 N. C. C. A. 745; Lardie v. Railroad Co., 192 Mich. 77; Barnes v. Railway Co., 42 N. D. 411 (173 N. W. 943); 1 Moore on Carriers (2d Ed.), p. 308; Rezsek v. Southern Pacific Co., 181 N. Y. Supp. 117. As to car 9668. There was evidence of slight con-gestion on the defendants’ lines on December 6th. The first connecting carrier was the N. Y. C. R. Co. On December 7th defendants received notice that such connecting carrier would not accept any freight at Suspension Bridge. This was “meant to cover the frontier, that is Suspension Bridge.” How long the notice was to be effective or was effective is not shown, though it is intimated that it might not have lasted -6 hours. The shipper on December 8th was not notified of the refusal of the N. Y. C. Ry. to receive freight, but this car was routed over such line. Nor was he advised of the congestion of freight. But this car was subjected to a minimum temperature of 12 at Lakeview on December 8th, 8 at Plymouth on December 9th, 1 at Windsor on December 10th, 2 at Cedar Springs on December 11th, where it was delayed. Had there been no delay it would have moved on into an area of low and destructive temperatures. A finding that these pickles in an ordinary box car did not freeze when subjected to such temperatures is against reason and the clear weight of the evidence. The damage to these pickles had been done before the. consequences of any of defendants’ claimed negligence had attached. The routing, the failure to notify of congestion, and the delay were not the proximate cause of the loss. A failure to switch the cars into a roundhouse at St. Thomas or elsewhere is found to be negligence. Plaintiff’s evidence in that regard is: “I know of my own knowledge that there are roundhouses at St. Thomas, East Buffalo, Black Rock, Suspension Bridge, Scranton, Port Huron and Detroit. These roundhouses are of such capacity that a freight car could be stored there for a day or two. There are tracks leading into the roundhouses. In 'order to store the freight cars they might have to take locomotives out of the roundhouse.” It was shown that St. Thomas was a city of 20,000 people. That the carrier had available any other means of storage is not shown. Nor is there evidence of the number or quantity of perishable shipments in transit and delayed. A finding of negligence on such a state of facts cannot be sustained. See McGovern v. Railroad Co., 165 Wis. 525 (162 N. W. 668); 15 N. C. C. A. 751. The plaintiff took practically no precaution to prevent freezing. The carrier should not be “required to take precautions with goods which the owner himself deemed it unnecessary or undesirable to take.” Lardie v. Railroad Co., supra. It is found that the carrier was negligent in not notifying the consignor or the consignee of the delay and of the conditions of the weather at or near St. Thomas. Under the facts of this case the notice would have availed nothing, and in view of the uncertainty of time of delay and the facts stated the failure, to notify consignor in Michigan or consignee in Connecticut may not be said to be negligent. If we were to adopt plaintiffs theory of average temperatures and of resistance to frost, and ignore minimum temperatures, we would be forced to the conclusion that the pickles did not freeze. But they did freeze. The clear weight of the evidence supports a finding that the defendants are not liable for the freezing, and consequent damage. A judgment should have been entered for defendants. Judgment reversed, without a new trial and with costs to defendants. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. On March 21, 1921, plaintiff commenced an action in the Wayne county circuit court by declaration in a plea of trespass on the case upon promises against Hugo Kelemen, a building contractor of Detroit. Personal service was had but defendant did not appear and his default was entered on April 12, 1921. Prsecipe was thereafter filed and the case duly brought on for trial before Judge Goff of. that circuit. Testimony of several witnesses was heard and a default judgment for $1,200 rendered in plaintiff’s favor. Attempts to collect the judgment proved unsuccessful. Several writs of garnishment were issued and served without results. On October 8, 1921, counsel for Magdalena Kelemen, executrix of Hugo Kelemen, made and entered a motion to vacate the judgment. On October 17, 1921, her counsel requested the court to enter of record a suggestion of the death of Hugo Kelemen, said to have occurred on July 25, 1921, as the result of an accident. The motion to vacate judgment and set aside the default was assigned by the 'presiding judge of Wayne county circuit court to Judge Law, an outside circuit judge then sitting as one of the judges of the Wayne circuit. When the motion was reached plaintiff’s counsel requested Judge Law to refer the motion to Judge Goff, who had entered the judgment sought to be set aside and was at that time sitting as one of the regular judges of that court. This request was refused. The motion to set aside the judgment was then heard and granted by Judge Law. Thereafter a motion to vacate Judge Law’s order was made and assigned for hearing to Judge Goff, who was of opinion that under the case of Mills v. McCloud, 94 Mich. 627, he had “no jurisdiction to set aside the order of Judge Law and thus review his discretion and determination,” and declined to grant the motion. Plaintiff brings the case here for review by certiorari asking that the order of Judge Law vacating the judgment and setting aside the default be reviewed and reversed. We are furnished by plaintiff with over 30 technical grounds of claimed error, but the only one meriting serious consideration is that of the jurisdiction of Judge Law to entertain the motion. Section 12139, 3 Comp. Laws 1915, reads as follows: “No stay of proceedings shall be directed or ordered by any one of the said circuit judges in any cause or proceeding excepting when the order or decree under which the proceedings are stayed shall have been made by such judge,, except that where the judge making such order or decree on which the proceedings are sought to be stayed shall be absent or unable to act, then an order staying proceedings on such order or decree may be made by either of the said circuit judges, and no order or decree shall be set aside or vacated except by the judge making the same, unless such judge shall be absent or unable to act.” Judge Golf was not absent and is not shown to have been unable to act. Defendants’ counsel seeks to avoid that plain prohibitory mandate of the statute and justify the course pursued under the provisions of section 12136 which deals with assignment of business by the presiding judge, arranging for separate court rooms and customary court officials for each, powers of a single judge in matters assigned to him, etc. Counsel apparently relies on the provision of that lengthy section which says: "Each judge, while so sitting for the transaction of business, shall have all the powers of any circuit judge sitting in any circuit court in this State, and the proceedings shall be regarded as proceedings of the circuit court had in open court at a session of the said circuit court.” Sections 12135 to 12139, inclusive, of the Compiled Laws of 1915 relate to judicial circuits where there are more than two judges. A careful reading of those sections as they run, with numerous details to cover and meet conditions and contingencies such a situation naturally gives rise to, makes plain that the concluding section (12139) is a mandatory jurisdictional provision qualifying and limiting all which may precede it on that subject. In circuits where more than two judges are provided for, sitting contemporaneously with each given in general terms like powers as a circuit judge, this concluding provision guards against confusion from conflict of authoritative adjudications amongst the judges of such court by divesting them of jurisdiction to set aside or vacate each other’s orders and decrees, except on the contingency that the judge who made or granted them, and with whom otherwise rests the power to vacate or set them aside in his discretion, is sick or unable to act. The reason for this special legislative limitation of jurisdiction is obvious, and no presiding judge can by assignment of the business of the court enlarge it. No question of discretion is there involved, and the cases cited relative to reviewing the discretionary action of a court in matters where the court has jurisdiction with discretionary powers to act are .not in point. That a proper showing of the absence or inability of the judge who made the order or decree to act on an application to set the same aside, is a prerequisite for another judge of the same circuit to entertain the application in circuits where there are more than two judges is indicated in Flowers v. Wayne Circuit Judge, 218 Mich. 500, wherein it is said: “Judge Hosmer having died, Judge White presiding in the same circuit had authority, under proper showing, to set aside the order made by Judge Hosmer (3 Comp. Laws 1915, § 12139).” In Kintz v. Galvin, 219 Mich. 48, the trial judge at conclusion of the testimony reserved his decision under the Empson act (3 Comp. Laws 1915, § 14568 et seq.) and submitted the case to the jury who returned a verdict in plaintiff’s favor. While he still had the reserved question under advisement, the presiding judge of the circuit rendered a. judgment on the verdict. Having reached a decision on the question taken under advisement, the trial judge filed an opinion ordering judgment for defendant non obstante veredicto, which was duly entered. After the case was in this court for review, he, on motion, entered an order setting aside the judgment on verdict in favor of plaintiff entered by the presiding judge. This court held the first judgment by the presiding judge was without authority — “no judgment” — void and “without effect upon subsequent proceedings by the trial judge,” whose judgment non obstante was the only judgment in the case. It is true, as counsel points out, this court found it unnecessary to discuss the authority of the trial judge to make an order vacating the void order of the presiding judge after the case was in the court, of which it only need be said that this court regarded it of no materiality* since the first judgment was void and a nullity, and! the second judgment by the trial judge was the only-judgment in the case. The order of Judge Law granting defendants’ motion to vacate the judgment rendered by Judge Goff was void for want of jurisdiction and must be set aside, leaving that motion standing as unheard, for reference to the judge who rendered the judgment unless upon proper showing he is found absent or unable to act. Reversed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

Steere, J. Plaintiff was granted a decree of divorce from defendant on the ground of extreme cruelty. The parties were married in 1907 and had five living children, George, 12 years of age, being the oldest, and June, aged 2 years, the youngest. The court awarded to plaintiff George, June and Mary (11 years old) but gave to defendant custody of Eleanor and Charles, respectively 7 and 5 years old. Plaintiff appeals from the court’s awarding to defendant custody and control of Eleanor and Charles, and from the amount of alimony awarded her for support of herself and children. During their married life these parties resided in Detroit. Defendant followed the plumbing and steam fitting business, at which he was apparently quite successful and at times took important contracts. At the time they ceased living together as husband and wife and this bill was filed, they occupied a home of their own valued at about $7,000, subject to an incumbrance amounting to approximately $1,100. Plaintiff’s bill was filed August 5, 1920, accompanied by a petition for temporary alimony, and asking custody of their minor children named in it. The petition for alimony was opposed but after hearing counsel the court made an order requiring defendant to pay to the clerk of the court $35 per week for support of plaintiff and their children. Defendant filed an answer with cross-bill on September 13, 1920, denying plaintiff’s charge of extreme cruelty and failure to support. In his cross-bill he charged her with religious bigotry, manifestations of which made his home life miserable, that by casting slurs upon his religious views and in other ways she sought to prejudice their children against him, and by her conduct constantly annoyed and embarrassed him, both in his home and business undertakings; in consideration of which he asked a decree of divorce from her with the custody and control of their minor children. Plaintiff answered defendant’s cross-bill in detailed denial of the charges made against her, with further charges against defendant of extreme cruelty and failure to properly support her and their children, to an extent which had at one time impelled her to appeal for protection and relief to the public welfare association. Although they had ceased living together as husband and wife when this bill was filed, defendant remained in their home for some time thereafter. On June 21, 1921, he told plaintiff he wished to take their two children Eleanor and Charles down town, to which she consented. He did not return, but took them with him to Canada as she later learned. Her efforts to ascertain what became of him and their two children were unsuccessful until their oldest boy, George, received a letter from defendant mailed at Birchville, Ontario. Plaintiff then went to Canada to try and find them but was unable to locate either him or the children. On August 21, 1921, she filed a petition in the circuit court praying an order against defendant directing return of the two children to her custody, which was opposed by defendant’s counsel but after a hearing the court entered an order that defendant return the children forthwith, she to have custody and control of them during pendency of the suit. No attention was paid by defendant to this order and up to the time of the hearing of this case on October 7, 1921, he had paid no further alimony after taking himself and the two children out of the jurisdiction of the court, and was over $500 in default. After making the customary investigation where there are minor children in a divorce case, the' prosecuting attorney reported to the court that their home surroundings were good and plaintiff was a suitable person to have the care, custody and education of the minor children named in her bill of complaint, with the recommendation that if decree of divorce was granted provision be made for alimony to support her and them, payable to the clerk of the court. On the hearing defendant was represented by counsel but did not appear in person or offer any evidence. Plaintiff produced undisputed testimony, by herself and others, showing that defendant had been guilty of the acts of extreme cruelty and failure at times to provide proper support as charged in her bill of complaint; that he was by calling a plumber and steam' fitter and for some time before he left Detroit had profitably engaged in contracting with men working under him, that he had property consisting of their home, yet incumbered as stated, lot No. 271 Windmill Point subdivision, purchased under contract for the sum of $3,500, upon which about $1,200 remained unpaid; that he had a Buick sedan car and Ford truck when he left, and took the Buick sedan with him but disposed of the Ford truck; that he also had at the time he left over $3,000 owing him from one party, and in the spring of 1921 over $7,000 was due and owing him on various accounts; that plaintiff understood he owned another lot somewhere on Mack avenue in the Macomb subdivision, which she was unable to locate. While out of the jurisdiction of the court with the two children sequestered, defendant made an offer to plaintiff through his attorney to give her the home, pay the mortgage on it, and pay her $50 per month for support of the children until they graduated from the high school, on condition that she consent to his having the two children which he had taken away. Claiming he was an unfit person to have their care and custody and that she as their mother could not consent to part with her children, she refused this offer. On defendant’s conduct towards plaintiff, and also as to his being a proper person to have the care and custody of their children, the record contains undisputed testimony of other apparently disinterested wit nesses strongly supporting her charges, the nature of which is indicated by the following excerpts: Mrs. Marie Kimloch, who lived a near neighbor for a number of years, testified that she had ample opportunity to observe the conduct of plaintiff and defendant towards each other, saying in part: “I have seen lots of things Mr. Nichols has done. I was there one day when he threw a telephone and hit the door. We could hear him without having to be in the house. * * * We could hear him in our bedroom window. He was always abusive with her. A few times he didn’t have enough to eat. * * * I heard him cursing and swearing during the entire five years I lived there. I never heard Mrs. Nichols swear. I have been there morning after morning and found Mrs. Nichols with nothing in the house to eat and the fires were not lit and the house was cold. This was in the fall when the weather was beginning to get cold. Mrs. Nichols in her condition could not go in the basement. * * * I know about the food because I have taken things over to the home there, made tea and took her over to our house. * * * I don’t know anything about his business. The children were dressed neat and clean, as nice and clean as she had clothes to put on them. The house was very clean. She'never let things slide as long as I knew her. She did her own washing and ironing.” Mrs. Louisa Perry, who lived next door to the parties, testified: “I have seen him swear at her, call her names and abuse her, throw the chairs and break dishes. He broke my dish I sent Mrs. Nichols’ rarebit in. * ' * * She didn’t have enough to eat, and when her little baby was born they came over for tea and matches and bread to give her. He would not give the nurse money enough to buy bread. The nurse asked him three or four times. He was working every day and he is a big fat man about six foot — a big healthy man. Often Mrs. Nichols would come over after bread and eggs to give to the children so they could go to school. They didn’t have bread in the house for the children’s supper. * * * The children cried for food. They didn’t have it and we helped them. I took them over and gave them lunch, and Mrs. Nichols also.” Mrs. Ann Perry, who lived near the parties for about four years, testified: “I heard him swear at her every morning in the. week. I heard him until I started to work two years ago in September. I was in there many a day at lunch time and the children didn’t have sufficient food. I have taken cakes and had Mrs. Nichols into my house, and the day the baby June was born and the nurse came out on the porch and asked Mr. Nichols to get the doctor twice, he was putting a tire on his car and paid no attention to the nurse, and she came over to my house and asked for two slices of bread so she would be able to give Mrs. Nichols something to eat after the baby came.” In connection with her decree of divorce the court awarded plaintiff the home, incumbered as stated, the part-paid land contract for lot 271 Windmill Point subdivision and a debt of $30 due defendant from a Miss Perkins, decreed that the property awarded her should also be in payment of the $525 alimony for which defendant was in arrears and that he pay plaintiff one dollar in lieu and full satisfaction of any claim for‘dowry she might have in any property he then owned or might thereafter own. The court further decreed that certain “stock of the parties hereto in the Detroit Bond & Mortgage Company” be the sole property of defendant. This case was heard October 7, 1921. The decree was filed May 20, 1922. Tested by the record made at the time of the hearing the court’s absent treatment of defendant would seem to be more favorable than he could have expected if not in default and present at the hearing. He had then defaulted in payment of temporary alimony since the preceding June 21st, had ignored the order of the court to re turn the two children he had taken to Canada, as to both of which delinquencies he was liable for contempt proceedings, but the court in his absence awarded him the two children, provided plaintiff no ready means to meet her immediate necessities and apparently did not assign for her needs the equivalent of what defendant himself offered to give her during pendency of the suit. His default in payment of the alimony ordered left her in sore need of means to support herself and children. The incumbered home with back taxes against it, and land contract of doubtful value with payments in arrears, were not income producing, or to her, without funds to meet those arrears, an immediate and sure means of support for herself and children. The decree must be modified to further award of an amount sufficient to cover the mortgage and taxes on! the house, deferred payments on the land contract and $60 per month for support of plaintiff and her children, subject to further order by the circuit court on proper showing. By statute (3 Comp. Laws 1915, § 11484), the mother, in the absence of some showing of her unfitness, is given the care and custody of the children until 12 years of age. This provision was under consideration in Weiss v. Weiss, 174 Mich. 431, and this court there interpreted it in part as follows: “It can be said of the foregoing section, taken as a whole, that it was intended as a general guide for the courts when in doubt as to which of the parents is the more fit, or when neither is shown to be unfit. It has been construed as meaning that prima facie the mother is best entitled to the custody of very young children, favoring her in that respect, and as meaning there should be preponderating reasons in favor of the father before it is otherwise provided. Klein v. Klein, 47 Mich. 518; In re Knott, 162 Mich. 10.” Prima facie plaintiff was entitled to the custody of the two children when defendant by subterfuge took them from her and removed them beyond the jurisdiction of the court. A presumption of her fitness obtained until rebutted by some competent evidence. No-such showing appears in this record. The testimony on that subject sustains the presumption in her favor. The prosecuting attorney in his report after investigation certified that she was a suitable person to have the care, custody and education of the minor children. The court on her application for custody of these two children, “being fully advised in the premises,” committed them to her custody during pendency of the suit and ordered defendant to return them to her forthwith. Testimony taken at the hearing is confirmatory of her fitness with nothing to the contrary. There is evidence of defendant’s unfitness, in his repeated profanity and abuse of the children’s mother in their presence, and neglect and failure at times to properly provide- for them. He abandoned three of his children, leaving them with their mother without proper provision for their support, and failed to comply with the court’s order directing payment of temporary alimony for that purpose. On the record before us plaintiff is entitled to the custody of those children and the decree will be so modified, giving plaintiff the care, custody, education and control of the minor children Charles and Eleanor, until further order of the chancery circuit court of Wayne county, if changed conditions be shown. Modified as indicated in this opinion the decree of divorce will stand affirmed, with costs of this court to plaintiff. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

Clark, J. The bill was filed to enjoin a violation of a building restriction imposed by a common grantor. Defendants owned land at the southwest corner of Kirby avenue and Hastings street in Detroit, subject to the following restriction by their deed and of record: “No building to be erected nearer than twenty-five feet to the south street line of Kirby avenue, these restrictions to expire on January 1, 1937.” They proposed to build stores upon this land including the restricted area of 25 feet along Kirby avenue. This threatened violation plaintiffs sought to enjoin. Plaintiffs owned lots on the south side of Kirby avenue adjoining and westerly of defendants’ land, which lots are subject to restriction: “That the premises will be used for residence purposes only and no building erected thereon nearer than 25 feet of the street line of Kirby avenue.” Upon these lots plaintiffs have erected dwellings, the main front walls of which are practically upon the 25-foot line, but into the restricted area they have built porches, steps and in some cases projecting bay windows. Defendants for nearly three years have had upon their land a small building, or shack, 18x15 feet, used as a fruit and vegetable store. Plaintiffs had testimony of complaints to the occupant of this structure of its being located within the restricted area and of assurances that it was to be there temporarily. Plaintiffs had decree. Defendants have appealed and contend: “1. The erection of porches and bay windows extending onto the restricted area, constituted an abandonment of the building line restriction and a waiver of the right to insist on its enforcement.” This is fully answered by Oliver v. Williams, 221 Mich. 471. “2. The erection of the fruit and vegetable store on defendants’ front twenty-five feet and its existence for over three years without objection, constituted a waiver of the lot line restriction, so far as the defendants’ land was concerned, if the building of the porches and bay windows did not produce this result.” The trial judge viewed the premises and from such view and from the testimony was convinced that the structure was temporary in character. We agree with him. Because of the known character of the structure we think that plaintiffs in suffering it to remain for a period of three years are not barred from right to the relief here sought: “3. If the court should hold that there was not an entire abandonment and waiver of the building line restriction, the defendants should be permitted to build, up to the farthest point that the fruit and vegetable store extends onto the restricted twenty-five feet. In any event, the defendants should be permitted to build up to the most northerly line of the porches extending onto the restricted area.” In practical and uniform construction of the restriction, dwellings have been placed with their main front walls along and upon the 25-foot line with porches, steps or bay windows extending into the restricted area. If it be held that the porches, steps and windows constitute violations of the letter of the restriction as we said in the Oliver Case, “it constitutes no abandonment of the restriction so far as it remains beneficial.” And see McNair v. Raymond, 215 Mich. 632. Because of the practical construction given the restriction by plaintiffs, they would be barred from equitable relief as against one who, building the main wall and body of his dwelling to the 25-foot line, sought to extend a porch into the restricted area, as they have done, but they would not be barred as against one who sought appreciable invasion of such area by a main building or main building walls. That the main front or bearing wall of a building and the building proper conform to the 25-foot line, the restriction remains beneficial. Hence plaintiffs are not barred from relief as against defendants’ proposed violation. What has been said disposes of the contention: as to the temporary building. Decree affirmed, with costs to plaintiffs. Wiest, C. J., and Fellows, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.

Wiest, C. J. The bill herein was filed to reform a deed, it being claimed that Fidelia Bliss, the mother of Jessie Blanchard, and now deceased, intended to convey to plaintiffs four lots in the village of Tekonsha, but by mistake of the scrivener the deed as executed covered but two of the lots. Defendants, who are heirs at law of the grantor, claimed that the lots were purchased by Mrs. Bliss with money received from insurance upon a farm house, in which property she only had a life estate and such insurance constituted a trust fund for their benefit as remaindermen and, therefore, not only the lots conveyed to plaintiff, but also the lots sought to be brought within the conveyance, belong to them as remaindermen. It is also claimed there was no valid delivery of the deed, and if there was, there can be no reformation decreed because the deed was a voluntary one. The circuit judge entered a decree granting reformation of the deed. All authorities hold that a life tenant has an insurable interest. The authorities are not in harmony upon the extent to which such insurance may be taken out by the life tenant, some holding it cannot go beyond the interest of the life tenant, and others that it may go to the full value of the property. If there is no obligation to insure for the benefit of remainder-men, either in the instrument creating the tenancy or under agreement with the remaindermen, then the life tenant may be the full beneficiary. By the great weight of authority insurance received by the life tenant under his own permitted contract is not impressed with any trust for the benefit of remainder-men but wholly belongs to the life tenant. The observation in Re Cameron’s Estate, 158 Mich. 174, that Green v. Green, 50 S. C. 514 (27 S. E. 959, 46 L. R. A. 525, 62 Am. St. Rep. 851), is a well-considered case, has not committed this court to the South Carolina doctrine that: “Insurance money collected by a life tenant on a total loss by fire should be used in rebuilding, or should go to the remaindermen, reserving the interest for life of life tenant for him.” The Cameron Case went off on the finding that the insurance was taken out for the protection of the remaindermen. This finding raised a resulting or constructive trust. We have no such issue here, but only the bare legal question of whether insurance procured by a life tenant, intended to solely indemnify the life tenant, brings to the life tenant in case of a loss a fund impressed in all instances with a trust in favor of remaindermen. The Green Case is not in line with the great weight of authority. See 21 C. J. p. 954, Estates, § 92; 26 C. J. p. 34, Fire Insurance, § 17; 2 Perry on Trusts (6th Ed.), § 553; 17 R. C. L. p. 642; 2 May on Insurance (4th Ed.), § 448, note (a); Harrison v. Pepper, 166 Mass. 288 (44 N. E. 222, 33 L. R. A. 239, 55 Am. St. Rep. 404). As pointed out in Spalding v. Miller, 103 Ky. 405 (45 S. W. 462), the Green Case is based on the premise that in case of total destruction of insured property the fund from the insurance policy is substituted for the property; a view wholly at variance with the true idea that insurance is an indemnity and in no “proper or just sense the proceeds of the property.” If the life tenant has an insurable interest, it is inconceivable that, when the indemnity contracted for is paid it is impressed with a resulting trust in favor of the remaindermen. What causes such a trust to arise? Not the contract of insurance, for that is a permitted personal contract between the life tenant and the insurance company. Not any obligation on the part of the life tenant to restore the property destroyed by fire, for there is no such obligation. Not the money received by the life tenant, on the theory that the same constitutes proceeds of property destroyed, for it is not such, but merely indemnity for a loss sustained. If the insurable interests of the life tenant and the remaindermen are separate and distinct, at what point do such interests unite under a personal contract for insurance by the life tenant and no insurance procured by or for the remainder-men? We hold: “There is no legal obligation on the part of the life tenant to take out insurance on the interest of the remainderman, and insurance taken out by the life tenant must be shown to have been stipulated or intended to cover the interest of the remainderman, and, unless such fact appears, it will be treated as a contract for personal indemnity to the life tenant, and he will be entitled to the proceeds to the exclusion of the remainderman.” Bennett v. Featherstone, 110 Tenn. 27 (71 S. W. 589). This is true even though the insurance exceeds the interest of the life tenant. “It is a general rule that the proceeds of insurance on the interest of a life tenant belong absolutely to the life tenant, regardless of the value of the life tenancy as related to the amount of the insurance. If the amount paid more than compensates for the interest, that is a matter between the life tenant and the company, in which the insured has no interest.” 4 Cooley’s Briefs on Insurance, p. 3689. In Convis v. Insurance Co., 127 Mich. 616, the insurance was taken out by the life tenant under agreement with reversioners. It is claimed there was no delivery of the deed because the attorney called upon to prepare it took the deed to the home of the grantor, had her sign and acknowledge it and then, without handing it to the grantor to hand to the grantees, stated he would take the deed and have it recorded, and did so. This was agreeable to the grantor and the grantees, and was a good delivery. We smile now over the old-time formality of livery of seizin, and it will hardly do to hold that, because the deed did not travel in a circle from the scrivener to the grantor and from the grantor to the grantees, and from them back to the scrivener, the purpose of the grantor stands defeated. We are of opinion that a sufficient consideration was established for the deed to remove the case from the rule that a voluntary conveyance will not be reformed. The deed carries on its face an acknowledged consideration of “one dollar and other valuable consideration.” This, in the absence of any showing to the contrary, saved the deed from being a voluntary conveyance. The testimony of the scrivener was admissible. Noble v. Hunter, 195 Mich. 713. The evidence clearly established the mistake of the scrivener. The decree entered in the circuit is affirmed, with costs to the plaintiffs. McDonald, Bird, and Sharpe, JJ., concurred with Wiest, C. J. Fellows, J. I agree with the Chief Justice that the decree in this case should be affirmed, with costs. I am not, however, in entire accord with all he says in his opinion and will briefly state the reason for my dissent from some of his language, and will explain my vote for affirmance. There can be no conflict or question as to the right of both life tenant and remainderman to effect insurance upon the property. Both have an insurable interest. There is a conflict in the authorities upon the right of the life tenant to retain for himself and for his own use insurance money received by him for a total loss where he has insured the building in his own name for its full value or for a value in excess of his interest. This court, I think, is committed by In re Cameron’s Estate, 158 Mich. 174, to the doctrine that such life tenant holds the money so received for himself and the remainderman. In that case the de facto guardian had insured the barn in excess of the value of the interest of his ward, the life tenant. The barn was totally destroyed by fire and the insurance money was used to rebuild it. This inured to the benefit of both life tenant and remainderman. The ward insisted the money belonged to him. We there said: “The company paid the insurance promptly. The barn was a total loss and insured for more than the interest of the life tenant. The authorities are not harmonious upon the question here involved. They agree that, where no requirement is contained in the instrument creating the life estate, the life tenant is not bound to insure the interest of remaindermen— also, that either party may insure for his own benefit. 16 Cyc. p. 632. A line of authorities holds that neither life tenant nor remainderman has any claims upon the proceeds of the policy of the other; that the contract of insurance is a personal contract of indemnity against loss and the sum paid is in no proper or just sense the proceeds of the property. Harrison v. Pepper, 166 Mass. 288 (44 N. E. 222, 33 L. R. A. 239, 55 Am. St. Rep. 404), and cases cited. A well-considered case taking a contrary view of the question is Green v. Green, 50 S. C. 514, 532, et seq. (27 S. E. 959, 46 L. R. A. 525, 62 Am. St. Rep. 851-854), which holds that a trust arises in favor of remainder-men where the life tenant recovers the value of buildings destroyed by fire. The court said: “ ‘We therefor© think that sound public policy requires that any money collected by a life tenant on a total loss by fire should be used in rebuilding or should go to the remainderman, reserving the interest for life for the life tenant.’ ” And it was there held that the money received from the insurance company did not belong to the ward but was properly used to build a new barn for the benefit of both life tenant and the remainderman,- It will be noted that this court then had before it the Massachusetts case and the South Carolina case. These cases are two of the leading cases on the subject and present the opposing views. We there accepted the views of the South Carolina court and then declined to accept the views of the Massachusetts court. The difficulty I find in agreeing with my Brother’s opinion is that he now accepts and adopts the views of the Massachusetts court which we there declined to follow. The Massachusetts holding finds support in the cases cited by the Chief Justice and the South Carolina holding has support in the follow ing cases: Welsh v. Assurance Corp., 151 Pa. 607 (25 Atl. 142, 31 Am. St. Rep. 786); Brough v. Higgins, 2 Gratt. (Va.) 408; Graham v. Roberts, 43 N. C. 99; Haxall’s Ex’rs v. Shippen, 10 Leigh. (Va.) 536 (34 Am. Dec. 745); Sampson v. Grogan, 21 R. I. 174 (42 Atl. 712, 44 L. R. A. 711). I am, therefore, constrained to dissent from that portion of the opinion of the Chief Justice which deals with this subject. In my judgment we are committed by the Cameron Case to a wise public policy which prevents a life tenant from profiting by the total destruction by fire of the buildings on the premises. But the defendants have signally failed by their proofs to bring themselves within the Cameron Case. Fidelia Bliss and her husband, Henry P. Bliss, acquired their life lease of the farm in 1883. It was to them and the survivor of them. The fire occurred in 1906 or 1907. The insurance appears to have been in the name of Henry P. Bliss. It was in the amount of $1,000 and covered both the house and the contents. How much was received for the loss of the house and how much for the loss of contents does not appear. The value of the house is not shown, and there is no testimony showing or tending to show that the amount of insurance received for loss of house exceeded or equaled the value of the interest of the life tenants. It is purely a matter of conjecture. While there is some testimony that the insurance money went into the premises in question, there is also convincing testimony that about the time the property was purchased Mrs. Bliss received a legacy of $1,600. I think defendants have failed to establish the allegations of their cross-bill (McNamara v. Langguth, 198 Mich. 776; Sampson v. Grogan, supra) and that the decree should be affirmed. Clark, Moore, and Steere, JJ., concurred with Fellows, J.

Fellows, J. Plaintiff is an Iowa corporation engaged in the sale of meats at wholesale. Its plant is located at Waterloo in that State. Through a broker in Detroit it sold meats to retail dealers there. It maintained no office in the State. The broker solicited orders for plaintiff and others on a commission basis and maintained his office at his own expense. Upon receipt from the broker of the various orders, plaintiff would make up a car, each dealer’s, goods being separated and properly marked, and the car would be consigned to its order. Upon its arrival in Detroit a cartage firm made deliveries to the customers of the original packages. During the late war government material had preference over individual shippers, causing some delay in delivery of plaintiff’s products in Detroit. In some instances the customers declined to accept the delayed shipments, and the meats were placed in cold storage at defendant’s cold storage plant. From there they were shipped by plaintiff’s order to other States and in some instances were sold in Detroit. For defendant’s, failure to properly care for the meats kept by it in cold storage this action is brought. The defense was that plaintiff was carrying on business in this State without having complied with Act No. 206, Pub. Acts 1901, as amended (2 Comp. Laws 1915, § 9063 et seq.). The regulation of commerce between the States of the Union has been committed to the congress of the United States. That the States are inhibited from levying a direct burden upon such interstate commerce has been settled by a long line of decisions and is. recognized in the act under consideration (2 Comp. Laws 1915, § 9070). That the methods pursued by plaintiff in procuring orders and shipping the meats to its customers in Detroit were acts performed in interstate commerce and beyond the power of the State to directly burden, numerous decisions make clear. A few of them will be considered. A case quite similar to the instant one is Crenshaw v. Arkansas, 227 U. S. 389 (33 Sup. Ct. 294). In that case the salesmen of the Range Company traveled through the country carrying a sample stove. They took orders and obtained notes for the purchase price. The orders were forwarded to the division superintendent in Arkansas who passed upon the credit of the purchasers and sent the accepted orders to the Range Company at St. Louis, Missouri. The stoves were shipped in ear load lots and delivered by employees of the Range,Company to the purchasers. It was held that the business transacted was in interstate commerce and that it was beyond the power of the State to hamper and burden it. Stewart v. Michigan, 232 U. S. 665 (34 Sup. Ct. 476), reversing People v. Stewart, 167 Mich. 417, was a somewhat similar case. An exhaustive review of the authorities and a full discussion of the question will be found in Butler Bros. Shoe Co. v. United States Rubber Co., 84 C. C. A. 167, 156 Fed. 1. See, also, Caldwell v. North Carolina, 187 U. S. 622 (23 Sup. Ct. 229); Sucker State Drill Co. v. Wirtz, 17 N. D. 313 (115 N. W. 844, 18 L. R. A. [N. S.] 134); People v. White, 197 Mich. 283; City of Detroit v. Paper Co., 202 Mich. 22; Toledo Furnace Co. v. Lansing Co., 220 Mich. 143; Levin v. Fisher, 217 Mich. 681; Champlain Realty Co. v. Town of Brattleboro, U. S. Adv. Ops. 1922, 23, p. 165 (43 Sup. Ct. 146) decided December 11, 1922; Standard Fashion Co. v. Cummings, 187 Mich. 196. In the last cited case it was said: “We are of opinion that the delivery of these goods to the common carrier at the places named to be transported to Cummings at Paw Paw, Mich., was an act of interstate commerce, and, so long as the business of plaintiff, a foreign corporation, was limited to the acts ^ of interstate commerce, and did not establish within the State a local agency to represent it in the sale of its goods, wares, and merchandise, it was not amenable to the law of this State requiring foreign corporations, as a condition of transacting business in this State, to file a copy of their charter or articles of association as prescribed by the Michigan act.” The leading case of American Steel & Wire Co. v. Speed, 192 U. S. 500 (24 Sup. Ct. 365), relied upon by defendant’s counsel, is clearly distinguishable from the instant case and from those cited. In that case the plaintiff in error kept in warehouses in Memphis, Tennessee, a stock of its steel and wire products to be shipped from there to its customers in Tennessee and other States, that city being a commercial center. It was held that under these circumstances such products had acquired a situs in Tennessee and were subject to the State law. But the goods were there placed in the warehouses in the regular conduct of the business of the plaintiff in error, and were so placed to facilitate their sale and the business of the company and not because an emergency arose requiring their storage. This case was considered and quoted from in City of Detroit v. Paper Co., supra. The difficult question in the instant case grows out of the fact that due to the war and priority given shipments of war materials over other shipments there was an occasional delay in the shipments of plaintiff’s meats from Waterloo, Iowa, to Detroit, resulting in refusals of customers to accept the goods ordered. This necessitated the storage and re-sale of the meats in order to save total loss. It did not arise in the ordinary course of plaintiff’s business but became necessary under then existing conditions in order to salvage, the meats. We think it may be fairly said that what was done to save a total loss of the meats was done not in the carrying on of the regular business of the plaintiff but as an incident to it. In 14A C. J. p. 1276, supported by a large number of cited authorities, it is said: “The courts are in agreement that the transaction in a State by a foreign corporation of acts of business, whether commercial or otherwise, which are merely incidental to the business in which such corporation is ordinarily engaged, does not constitute the*-doing or carrying on of business within the meaning of statutes imposing conditions, restrictions, regulations, etc., on the right of foreign corporations to do business.” Kelley v. Rhoads, 188 U. S. 1 (23 Sup. Ct. 259), involved a statute of Wyoming taxing livestock brought into the State for the purpose of being grazed. The plaintiff drove a herd of sheep from a point in Utah across the State of Wyoming to a point in Nebraska, consuming from six to eight weeks in making the trip. While en route the sheep grazed in the State of Wyoming. It was held that the owner was not liable for the tax, that the grazing of the sheep was but an incident of the transportation of the sheep in interstate commerce and it was said: “The question turns upon the purpose for which the sheep were driven into the State. If for the purpose of being grazed, they are expressly within the first section of the act. But if for the purpose of being driven through the State to a market, they would be exempt as a subject of interstate commerce, though they might incidentally have supported themselves in grazing while actually in transit.” In Keating Implement & Machine Co. v. Favorite Carriage Co., 12 Tex. Civ. App. 666 (35 S. W. 417), the carriage company had sold and shippedo in interstate commerce certain goods to a customer who failed to pay for them. They were retaken and placed on sale on commission. An action for their conversion was defended on the ground that the carriage company had not filed with the secretary of State copies of its articles of incorporation, etc. It was held that the defense was not available and while not directly deciding the question it was said: “It seems to be conceded that it had the right to take the vehicles back in self-protection, but it is insisted they should have been reshipped to Ohio and not sold here. Such requirement would seem to be unreasonable. In many instances the character of the goods, the freight rates, and the difference in the markets would practically forbid such reshipment. It would tend to interfere with the freedom of interstate traffic, which can only be regulated by congress.” Similar in facts and holding to the last cited case will be found Penn Collieries Co. v. McKeever, 183 N. Y. 98 (75 N. E. 935, 2 L. R. A. [N. S.] 127), and Vulcan Steam Shovel Co. v. Flanders, 205 Fed. 102. In the New York case the purchaser of goods shipped in interstate commerce had failed to accept the goods; in the Federal case the purchaser had failed to pay the purchase price. In both cases the goods were resold and it was held that such resale did not constitute carrying on business under the corporation acts. In each case the resale was an incident of the interstate transaction. And this court in Tidey v. Kent Circuit Judge, 179 Mich. 580, recognized that an incident to the business, that of bringing a suit in a State court, was not the carrying on of business in the State. Recurring briefly to the instant case: Plaintiff was engaged in interstate commerce; in such interstate commerce it shipped to various of its customers in Detroit perishable goods; they were rejected because of delay incident to war activities; to minimize its loss, to salvage such perishable goods, it placed them in cold storage until another customer could be obtained and then sold them. This was an incident to the business conducted in interstate commerce and immune from a direct burden at the hands of the State. The testimony of the broker who examined the cars of meat coupled with the notations by defendant upon its receipts of such meats as were not in good condition, taken in connection with the rule announced in Thomas Canning Co. v. Railway Co., 211 Mich. 326, and Schwartz v. Michigan Warehouse Co., 219 Mich. 401, took the question of defendant’s liability to the jury. The judgment will be affirmed. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Sharpe, J. The original plat of the city, then village, of Greenville, known as Rutan’s plat, was recorded in the register of deeds’ office in Montcalm county on May 31, 1856. It included lands on sections 9 and 10 in town 9 north, range 8 west. The line between these sections appeared on the plat as Lafayette street. It was 4 rods in width. Clay street, 4 rods wide, lies 24 rods east of Lafayette, and Webster street, the eastern boundary of the plat, 8 rods wide, was 23 rods east of Clay. The land to the east, of Webster street was afterwards platted by what is known as Edwards’ addition. On April 9, 1873, a part of this land, designated by blocks, was subdivided by E. B. Edwards, the owner thereof, the plat therefor being known as “Edwards’ third addition to the village of Greenville.”' This plat was recorded on April 9, 1873. The dedication, so far as it relates to the property involved in this action, reads: “ ‘Edwards’ third addition’ includes all of lot No. (6) and all that part of lots No. five (5) and seven (7) lying east of Webster street in the village of Greenville (now city of Greenville) except block ‘A’ which has been previously recorded, and is known as ‘Edwards’ addition to the village of Greenville,’ said lots (5) (6), and (7) being on section ten (10) town nine (9) north of range eight (8) west.” Smith and Court streets are east of Webster street. The width of' the streets and lots in the blocks is plainly marked on the plat. The lots on the east side of Court street run east and west and are numbered from one to seven inclusive. On January 21, 1881, Mr. Edwards conveyed to the Detroit, Lansing & Northern Railroad Company, plaintiff’s grantor, a tract of land in Edwards’ third addition, which included Court street and four rods in length off the west end of said lots one to seven, inclusive, fronting on Court street— “All of said above mentioned streets, lots and blocks of land being on Edwards’ addition to Greenville according to the plat thereof, recorded in the office of the register of deeds of Montcalm county, aforesaid, in liber thirty of deeds on pages 216, 217 and 218 and being the same lands heretofore contracted by said Edwards to the president and secretary of the Ionia and Lansing Railroad Company on the 21st day of May, A. D. 1869. Which contract is mentioned in the descriptions of land of said plat as recorded as aforesaid.” Claiming that defendant was wrongfully in possession of a part of this four-rod strip, plaintiff brought this action of ejectment and, by the judgment, entered upon a verdict directed by the court, was adjudged to be entitled to recover the possession of a strip one and one-half feet wide on the easterly side thereof. Defendant reviews the judgment on assignments of error claimed to have been committed in the direction of the verdict for plaintiff, in refusing to direct a verdict for defendant, and in the admission and rejection of testimony. The defendant owns the balance of lots one to seven and has substantial buildings and improvements on them and on the land adjoining on the east. Its grantors acquired title to at least a part of this land in 1871, before the plat of the third addition was recorded. The only question in dispute is from what point measurements should be taken to ascertain the boundary line between plaintiff’s and defendant’s property. In some way, not explained in the record, the eastern boundary of Webster street, as determined by the buildings and sidewalks now thereon, is ab’out one and one-half feet farther to the east than the dis tances stated on the Rutan plat would place it. Counsel for plaintiff concede that if measurements be made from Lafayette street, the defendant is within its boundary line, but insist that the actual location of Webster street must be taken as the starting point for making such measurements. Copies of the plats do not appear in the record. There is attached to defendant’s brief a blueprint which purports to show that part of the Rutan plat and of the Edwards third addition from Lafayette street east to the land in dispute. Plaintiff’s counsel apparently concede its accuracy by their reference to it in their brief. From this blueprint it appears that Edwards’ third addition platted lands to the east of Webster street as fixed by the Rutan plat. We do not think’ any other intent can be inferred from the language of the dedication. It but made it clear that blocks east of Webster street, as it appeared on one or both of the former plats, were being subdivided. Mr. Bristol, an engineer in plaintiff’s employ, attempted to fix the boundary lines of its property in 1897-98. He began his work on the assumption that the railroad track was in the center of Court street and testified that he found some old fences apparently indicating lot lines and one stone in the ground which he assumed to> be a monument set by a surveyor. He found no stakes or other evidences of the original survey. From his observations and the measurements he made he “determined that the center line of the track was the center line of Court street.” He made no measurements from Lafayette street. He testified that he went west as far as Webster street but found little there to aid him as the street was not fenced at that time. Mr. Tefft, another of plaintiff’s engineers, sought to locate plaintiff’s lines in 1918. He “began on a section line between sections 9 and 10, the center of Lafayette street and carried that through to the railroad property.” By taking “halfway distance between curb lines on the pavement” at the corner of Webster and Grove streets, he discovered that Webster street was not located on the ground as indicated by the plats. As we have said, copies of these plats do not appear in the record. If the plat of Edwards’ addition does not show that its western boundary was fixed by the location of Webster street, or the blocks to the west thereof, on the Rutan plat, it would then be important to determine its actual location at the time the plat of the third addition was made. We must assume from the record that it was so fixed and, if so, its location must be determined by measurements from Lafayette street, a section line, a starting póint clearly established. With the plats before him, Mr. Tefft determined that it was from this point he should start. His measurement therefrom showed the division line between the properties of plaintiff and defendant to be where defendant claims it is. There is no such proof in the record of any stake, monument or division line set at the time any of the original surveys were made as justified departing from such measurement. Where starting points, such as section corners or quarter posts, cannot be found, purchasers have a right to rely on stakes planted or fences built which have long been recognized as indicating lot lines, and no subsequent survey establishing a starting point should be allowed to unsettle such boundaries. Mistakes made in the measurement of original surveys may not be corrected to disturb boundaries thus fixed. Mere proof of an overplus or shortage in the length or width of streets, lots or blocks is insufficient in itself to .change boundaries distinctly marked when the original survey was made. Nor may a new survey made from an assumed starting point be used therefor. The cases relied on by counsel for plaintiff (Diehl v. Zanger, 39 Mich. 601; Flynn v. Glenny, 51 Mich. 580; Beaubien v. Kellogg, 69 Mich. 333; Carpenter v. Monks, 81 Mich. 103; LeCompte v. Lueders, 90 Mich. 495 [30 Am. St. Rep. 450]; Brudin v. Inglis, 121 Mich. 410; Breakey v. Woolsey, 149 Mich. 86) so hold. These decisions, however, have no application to the facts presented by this record. The grantors of both plaintiff and defendant purchased, or contracted to purchase, their lands before the plat of Edwards’ third addition was recorded. The line in dispute might then have been accurately determined by measurements made from Lafayette street. We-are not here concerned with a dispute between adjoining landowners who have relied on the stakes or other monuments set when the original survey was made or on fences long acquiesced in as boundary lines between lots. In view of a new trial, it seems necessary to pass upon the refusal of the court to submit defendant’s claim of adverse possession to the jury. It is a little difficult to understand the facts testified to and the estimates of distances as stated, owing to the plats not being made a part of the record.. Without reviewing the testimony, which we have carefully read, it is sufficient to say that we think this question should have been submitted. The judgment is reversed and a new trial granted, with costs *to appellant., Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

Steere, J. Defendant seeks reversal of a judgment against it based on a fire loss under a $1,000-insurance policy which it had issued to plaintiff covering a frame dwelling house located at 515 Webster street, Grand Rapids. The policy was issued January 2, 1916; The fire occurred November 11, 1918, resulting in a total loss. This action was begun in the circuit court of Kent county on June 19, 1919. The case was tried before the court without a jury. Findings of fact with conclusions of law thereon were filed by the court on May 10, 1921, followed by entry of judgment on the same date in favor of plaintiff. Omitting formal parts they are as follows: “1. That on January 2, 1916, defendant, the Royal Exchange Assurance Company of London, England, a foreign corporation, in consideration of premiums paid and to be paid by the plaintiff, issued to him its policy No. 4851685, and insured his property at 515 Webster street, N. W., Grand Rapids, Michigan, against loss or damage by fire to the amount of one thousand dollars ($1,000.00). “2. That at the time said policy was issued, plaintiff held title to the property, that it was used as a dwelling house and insured as such, and the character of such use was never materially changed. The property was subject to a mortgage of $1,000, and had been sold on a land contract which had been abandoned and terminated by the vendees prior to the fire in question, and that due notice of said mortgage and said contract was had by the defendant. “3. That the policy in question was issued on behalf of defendant by the Grand Rapids Insurance Agency, its agent, and was procured by one Frank D. McKay, a licensed broker representing said agency.' “4. That prior to the fire in question which destroyed the property and upon which this action is founded, a small loss occurred on the premises, which was taken up for adjustment by Mr. Blickle of the Grand Rapids Insurance Agency and by Mr. McKay; that proofs of loss were filed with Mr. Blickle, the loss was passed upon by Blickle and McKay, and the defendant insurance company paid the loss as adjusted by them, in the sum of $15, which payment reduced the principal amount of the policy in that sum. “5. That prior to July 12, 1918, plaintiff had been indebted to one Archibald B. McKay, in the sum of $500; that to pay his taxes, etc., plaintiff, through Frank D. McKay, borrowed from the latter’s brother, Archibald B. McKay, the further sum of $150; that prior to this time, plaintiff had given said McKay an assignment of a land contract and a deed to certain property and after the further advance of $150 to plaintiff, he gave the said Archibald B. McKay an assignment of the land contract and a deed of the» property insured by defendant; that, although absolute on its face, it was agreed by the parties that it was to be held merely as collateral to secure said Archibald B. McKay. “6. That Frank D. McKay, the representative of the Grand Rapids Insurance Agency, agent for the defendant, had knowledge of all these transactions; that he handled plaintiff’s business affairs, and secured the advance by the said Archibald B. McKay and secured the assignment and deed in question to secure his said brother. “7. That on November 11, 1918, a fire occurred, resulting in a total loss, within the meaning of the policy; that at that time plaintiff was pastor of a Catholic church in the city of Saginaw; that he was notified of the loss by the said Frank D. McKay, who, on behalf of plaintiff, procured blanks from the Grand Rapids Insurance Agency, had them filled out and filed them with Mr. Blickle of the Grand Rapids Insurance Agency, at the latter’s request; that these proofs of loss were later turned over to the Western Adjustment and Inspection Company, adjuster for the defendant insurance company, who, on March 10, 1919, through its manager, Mr. Reilly, denied liability on behalf of defendant and refused to pay the loss. “8. That at the time of this loss, plaintiff had an interest in the insured property to the amount of one thousand dollars ($1,000.00) and upwards. “9. That the mortgage (e), although protected by a full contribution clause in the policy, never brought any action to recover under it, nor did he ask to join or intervene in this case; that by the terms of the policy, suit must be brought within a definite time which has long since passed. “10. That this loss became due and payable at the time of the refusal, by defendant’s agent, to pay said loss, which amounted to the principal sum named in the policy as reduced by the first loss paid, to wit, nine hundred eighty-five ($985.00) dollars, interest upon that amount from that date amounting to one hundred nine dollars and twelve cents ($109.12). “Conclusions of Law. “I find and conclude as a matter of law: “1. That the terms and conditions of the policy had ■been complied with, and at the time of the loss the policy was in full force and effect. “2. That the loss suffered by plaintiff was covered by the policy and the defendant is liable to plaintiff under said policy. “3. That the amount due plaintiff, together with interest to date amounts to one thousand ninety-four dollars and twelve cents ($1,094.12), with costs to be taxed. “Let judgment be entered accordingly.” No proposed amendments to the court’s findings of fact and conclusions of law were, filed or points of law presented to the court in writing, as upon requests to charge, at any time so far as this record discloses. No motion was made for a new trial. On May 16, 1921, a motion was granted extending time for settling bill of exceptions 60 days. No exceptions to the court’s findings and conclusions were filed until September 15, 1921, over four months after judgment was entered. They were in blanket form as follows: “The defendant Royal Exchange Assurance Company does hereby except to the findings of fact and conclusions of law as found by the court in the above entitled action.” These exceptions not only fail to point out any particular error to which the attention of the court is directed or grounds for taking them, but they were not filed within four days after the completed findings were filed, and judgment entered, as required by section 3 of Circuit Court Rule No. 45. Counsel for plaintiff contend that owing to noncompliance with the prerequisites for review imposed by rule No. 45 defendant’s technical grounds of error are not properly before the court for review. As to most if not all the questions defendant seeks to.raise this objection is well taken. The mandatory requirements of rule No. 45 have been so often and fully discussed by this court that it seems sufficient to refer to a few of the later cases upon that subject where the force and effect of that rule is declared: Cascarelli v. Railroad Co., 202 Mich. 304; Engel v. Tate, 203 Mich. 679; Marshall & Ilsley Bank v. Mooney, 205 Mich. 518; Messer v. Dornbos, 210 Mich. 46; Curry v. Shears, 216 Mich. 699; Murphy v. Bonewell, 218 Mich. 171. In the Curry Case it is said: “Defendant’s exceptions to the findings were not filed within four days as required by this rule (45). This precludes us from considering whether the findings are against the clear weight of the evidence as is required, when exceptions are properly taken, by sections 14 and 15 of chapter 18 of the judicature act (3 Comp. Laws 1915, §§ 12586, 12587). The only question therefore open to us to review is whether the findings of fact support the judgment. Rameau v. Valley, 168 Mich. 569. See, also, Simon v. Zarevich, 213 Mich. 662, and cases therein cited.” In the Mooney Case, pointing out that for failure tq comply with Rule No. 45 the errors assigned upon the findings of the court could not be considered, it is said: “It remains to consider whether the refusal to strike out the testimony for plaintiff and dismiss the case was reversible error.” The facts found by the court support the judgment, but under defendant’s motion for a directed verdict on the ground that plaintiff failed to make a primo, facie case by any competent testimony, it seems to remain for the court to consider whether certain essential facts found are sustained by any competent evidence. Two -points strenuously urged for defendant are the evidence of agency on the part of those claimed by plaintiff to have represented defendant, and the competency of oral testimony admitted to show a deed of the premises from plaintiff to Archibald McKay was not a defeasance but only given as security for a debt. Those questions were saved by-objections timely made to testimony as taken, followed by motion for directed verdict, in effect, to strike out the claimed incompetent testimony and dismiss the case. The policy involved here was a Michigan standard policy with notice of the $1,000 mortgage and land contract acknowledged, and containing the customary condition that, unless otherwise provided, it should be void unless the interest of the insured was other than unconditional and sole ownership in fee simple^ It is urged for defendant that evidence to vary the terms of the deed from plaintiff to Archibald McKay was incompetent, especially as to a third party, and. the unqualified deed of defendant stood as a palpable-violation of plaintiff’s policy which renders it void. Undisputed oral evidence, supported by correspondence between Frank D. McKay, who as a licensed, broker secured the insurance for the Grand Rapids. Insurance Agency, and plaintiff, shows that the deed was given as collateral security in the nature of a, mortgage to a note for money loaned to plaintiff. In 4 Joyce on Insurance (2d Ed.), § 2259, it is said: “Under a condition in the policy that in case of any sale, transfer, or change of title in the property insured such insurance shall be void and cease, it has been held that a merely nominal transfer as collateral security for debts which are liens on the property will not avoid the policy.” “A deed absolute in form, but in fact given simply as security for a debt, does not convey the title, but is, both at law and in equity, a mortgage only. Where, therefore, a policy of fire insurance contained a condition to the effect that a sale or transfer of the property sold or any change in the title without the consent of the company would avoid the policy, held, that a deed of the property, executed simply to secure a debt, was not within the condition and did not affect the policy.” Barry v. Insurance Co., 110 N. Y. 1 (17 N. E. 405). Upon the proposition that oral evidence is a'dmis sible, vide, also, 22 C. J. p. 1293, and Michigan cases there cited; Potter on Michigan Evidence, § 361; Jeffrey v. Hursh, 49 Mich. 31; Matthews v. Forslund, 112 Mich. 591, Furthermore, under the law as it existed when this policy was issued (2 Comp. Laws 1915, § 9481), this increase of incumbrance could not be declared to render the policy void unless defendant was injured by reason of it, and there is no finding or evidence in the case that such result followed. McPhee v. Insurance Co., 198 Mich. 215; Lagden v. Insurance Co., 188 Mich. 689, 206 Mich. 341; Lindemann v. Insurance Co., 217 Mich. 698. As to the question of agency and authority to waive notice or compliance by the insured with requirements as to proofs of loss, appraisal, arbitration, etc., it is undisputed that the Grand Rapids Insurance Agency was agent of defendant and as such issued this countersigned policy. Frank D. McKay testified: “I prepared and filed proof of loss with Mr. Blickle of the Grand Rapids Insurance Agency. I acted for Father Gervickes at the time. I had the estimate made and proofs of loss filed at the request of Mr. Blickle. * * * I think Mr. Blickle made out most of the proofs and left a part of it that he asked me to fill in.” The adjuster referred to in paragraph 7 of the court’s findings is identified in the testimony as an adjuster named Reilly. Of him counsel for defendant stated during the trial: “Mr. Reilly, of the Western Adjustment Company, who is now dead, * * * he represented the company in this loss.” Frank ■ McKay was permitted to testify that after giving the proofs of loss to Blickle he next saw them in the hands of Reilly who told him he was instructed to say that the claim would not be paid because of the condition of the title. This testimony was strenuously objected to as matter equally within the knowledge of the deceased. Conceding its incompetency, there yet remains in the record competent testimony of defendant’s refusal to recognize the claim. Blickle of the Grand Rapids agency so stated to McKay, and plaintiff received a registered letter from Reilly advising him that this purported proof-of loss was rejected and “No proof purported or otherwise could be accepted when signed by you, since you do not appear to be the owner of the property.” This letter was signed “Western Adjustment & Inspection Company, by James C. Reilly, Manager its Grand Rapids, Mich., Branch, Adjuster for Royal Exchange Assurance Company of London, England.” We find no reversible error and the judgment will stand affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

Steere, J. On October 20, 1921, plaintiff commenced an action of assumpsit by declaration filed in the circuit court of Bay county against the five defendants, John, Sam, Abe, Isadore and Myer Blumlo, doing business as the Saginaw-Bay City Auto Wrecking Co., a copartnership. Process was duly issued against all defendants and put in the hands of a deputy sheriff for service. After personal service had been made on defendant John Blumlo, Oscar W. Baker, a regular practicing attorney of that court, filed notice of retainer by and entered the appearance of all of said defendants, serving a copy on plaintiff’s attorneys, which, omitting title, etc., is as follows: “To the above named plaintiff: “Please take notice that I have been retained as attorney by the defendants in the above entitled cause whose appearance is hereby entered and a demand made for a bill of particulars of plaintiff’s claim as set forth in his declaration. “Dated: November 7, 1921. “Oscar W. Baker, “Attorney for Defendants.” On November 9, 1921, plaintiff’s attorneys filed a bill of particulars and served a copy on Baker as defendants’ attorney. On November 15, 1921, Baker filed and served upon plaintiff’s attorneys a plea of the general issue as follows: “Now come the said defendants and demand a trial of the matters and things set forth in the bill of particulars and declaration of plaintiff. “Oscar W. Baker, “Attorney for Defendants.” The cause being at issue, was then regularly placed upon the December, 1921, term calendar of that court for trial and thereafter continued for the four succeeding terms on motion of said Baker who presented in defendants’ behalf various grounds therefor. The case was finally brought to trial at the October term, 1922. Baker participated in the trial as counsel for defendants. Plaintiff introduced oral evidence of defendants’ liability, supported by the following memorandum : “Bay City, Michigan, July 15, 1921. “This is to certify that Charles Hempel has traded Overland for ■ Chevrolet. We are to furnish parts and he is to furnish labor to complete car. “Bay City Auto Wrecking Company, per Sam.” And also defendants’ certificate of copartnership on file with the county clerk reading as follows: “Certificate to be filed with the county clerk in accordance with Act No. 101, Public Acts 1907, State of Michigan. “This is to certify, that Saginaw-Bay City Auto Wrecking Company is a copartnership and that the full name or names of the person or persons owning, conducting or transacting the business of said firm, together with the postoffice address or addresses of each of said firm, is as follows: “John Blumlo, 1412 Columbus Ave., Bay City, Mich. “Sam Blumlo, 514 N. Jackson St., Bay City, Mich. “Abe Blumlo, 112 S. Farragut St., Bay City, Mich. “Isadore Blumlo, 1412 Columbus Ave., Bay City, Mich. “Myer Blumlo, 1416 Sixth St., Bay City, Mich. (Signed) “Saginaw-Bay City Auto Wrecking Company, “By John Blumlo.” Early in the case Baker stated to the court that defendant Isadore Blumlo was a minor against whom a judgment would not be good, but furnished no evidence as to his age. No testimony was introduced in behalf of defendants. At close of proofs the following colloquy occurred between court and counsel: “The Court: I think he would be entitled to a judgment for $300. “Mr. Baker: And have the curtains? “The Court: Well, the testimony is he was ' furnish everything complete. “Mr. Baker: Well, talking about the contract, under the contract— “The Court: Well, isn’t that part of the contract, the top ? It is not' a mechanical part. “Mr. Leibrand: Does not your honor think we are entitled to something for damages? “The Court: I don’t hardly think so, under the testimony. I think you may have a judgment for $300. “Mr. Baker: Who against, your honor? “The Court: Against the defendants. There cannot be any personal judgment against the boy under 21. “Mr. Baker: And there cannot be any personal judgment against only the partners served? “The Court: That is all. “Mr. Leibrand: There is an appearance here for all. “The Court: Yes, but there cannot be any personal judgment against only those served. "Mr. Baker: And those are John Blumlo, Sr.— '“The Court: I don’t think there can be any judgment anyway on one who is not served.” Thereafter counsel argued before the court the question of whether plaintiff was entitled to a judgment against those of the defendants who were not personally served but who had appeared generally by their attorney and pleaded the general issue. At no time during the course of these proceedings was it claimed by or for any of the defendants that Baker was not authorized to appear for and represent them, as their attorney. The only contention in behalf of the defense was that no judgment could be had against those not personally served. Plaintiff’s motion for judgment was held for consideration and on January 2, 1923, the court made the following order: “Charles Hempel, Plaintiff, vs. “John Blumlo, et al., Defendants. “Judgment having gone to plaintiff in this case the question came up on motion with reference to having same _ entered against the copartnership, and also the individuals named in the copartnership certificate, being all of the individuals doing business as the Saginaw-Bay City Auto- Wrecking Company. “It is elemental that personal judgment cannot be entered against persons or their individual property, unless_ they have been personally served with process. In this cause it seems that the company was sued, and one of the copartners served with process. In view of the_ general rule, a judgment could not run against the individual property of the individuals not served, consequently a judgment may be entered in the case against the copartnership, and the individual partner served with process.” Plaintiff’s counsel thereafter obtained from this court an order to show cause why upon the undisputed facts found by the court to establish a liability of $300 judgment should not be entered against all the defendants. The foregoing facts are either admitted or not denied in the return, which concludes: “Defendant further says that he believes he was correct in making the order of January 2, 1923, as set forth in paragraph 9 of the petition for an order to show cause and that no personal judgment under service of the declaration, appearance of attorney and testimony introduced in said cause could be entered against the individuals composing the defendant co-partnership other than John Blumlo, Sr.” These defendants were sued upon a joint obligation <or liability arising out of a business in which they were partners. Had they not appeared generally in the case and pleaded the general issue unquestionably execution would not lie against those not personally served, but one of them was personally served and section 12798, 3 Comp. Laws 1915, provides that in such case: “* * * Upon due proof that the process or declaration has been served upon either of such persons, the defendant so served shall answer to the plaintiff, and the judgment in such action if rendered in favor of plaintiff, shall be against all of the defendants in the same manner as if all had been served.” The sufficiency of the judgment in point of law to personally bind one of the joint debtors against whom the judgment is taken cannot be anticipated or ruled on in advance. Gunzberg v. Miller, 39 Mich. 80. Vide, also, 3 Comp. Laws 1915, § 12834. In this case, however, all defendants by their attorney entered a general appearance in the case and filed their plea of the general issue. Baker’s authority to act as their attorney was not questioned by them, and, it was not necessary for him, being an attorney of the court, to produce or file any warrant of attorney authorizing him to act (3 Comp. Laws 1915, § 12404; Norberg v. Heineman, 59 Mich. 210). Presumably these partners were a;dults of sound mind. There was no proof to the contrary. They could at their election appear by attorney or defend in person. (Constitution of Michigan, art. 2, § 12; 3 Comp. Laws 1915, § 12261.) In Creighton v. Kerr, 87 U. S. (20 Wall.) 8, it is said: “A general appearance waives all question of the service of process. It is equivalent to a personal service.” Here defendants not only entered a general appearance but pleaded to the merits by filing and serving a plea of the general issue. “Pleading to the merits brings the parties before the court whether lawfully served with process or not, and they cannot thereafter object to the manner in which they are brought in.” Manhard v. Schott, 37 Mich. 234. Vide, also, Maxwell v. Deens, 46 Mich. 35; Dailey v. Kennedy, 64 Mich. 208; Gunn Hardware Co. v. Denison, 83 Mich. 40; Hannah & Lay Co. v. Mosser, 105 Mich. 18; Graham v. Cass Circuit Judge, 108 Mich. 425; Dunlap v. Byers, 110 Mich. 109; Fisher v. Hardwood Manfg. Co., 120 Mich. 490; Improved Match Co. v. Insurance Co., 122 Mich. 259; Lacomb v. Godkin, 143 Mich. 193; Roscoe v. Browne, 35 Pa. Sup. Ct. Rep. 646; 1 Abbott’s Prac. & Forms (Mich.), § 564. The court having found that plaintiff was under the evidence entitled to a judgment for $300, judgment should have been rendered and entered against all the defendants in the same manner as if all had been served. Writ will issue as prayed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.

McDonald, J. The plaintiffs were allowed a claim of $39,162.42 against the defendant estate in the probate court for Bay county. An appeal to the circuit court resulted in a directed verdict for the plaintiffs in the sum of $40,602.72. The defendant appeals. In 1916, Charles R. Hawley and Robert C. Bialy, both now deceased, were interested in the Nevada Sugar Company of Fallon, Nevada. In 1913, the company made a loan of $25,000 from the National Park Bank of New York City. As security it pledged its stock, and the directors, among whom were Hawley and Bialy, signed a written guaranty for the payment of the note. When the note matured the company was in the hands of a receiver. Hawley paid it and no contribution was made to him by the other guarantors. Later, but at what time and for what reason the record does not show, Bialy guaranteed to protect Hawley from any loss on account of the payment of this note. In addition to the transaction relating to the note, Bialy and Hawley were jointly indebted to the Peoples State Bank and the Peninsular State Bank of Detroit, and had deposited with these banks certain securities as collateral to their loans. This indebtedness was past due and unpaid. Foreclosure proceedings were begun. Hawley and Bialy hastened to Detroit and while there entered into an agreement, in writing, on the 3d day of June, 1916, the apparent purpose of which was to define their interest in the stocks and bonds which they held in common, to further protect Hawley against loss for the amount paid by him on the National Park Bank note, and by depositing other securities with the two Detroit banks to secure an extension of time for the payment of that indebtedness. At that time the indebtedness on account of the National Park Bank note, including interest, amounted to $30,536. After the foreclosure sale of the property of the Nevada Sugar Company, a new company, known as the Nevada-Utah Sugar Company, was organized and bonds and stock of the new company were issued to Hawley and Bialy. It is the stock of this company that is referred to in the contract which, as far as it relates to the question in controversy, reads as follows: “The $30,540 of stock provided for to be delivered to' Charles R. Hawley is delivered to him as collateral to the obligation on the note of the National Park Bank of New York City the payment of which has heretofore been guaranteed by said Robert C. Bialy to said Charles R. Hawley, and which note has been taken up and paid by Charles R. Hawley, and in addition to this $30,540 there shall be delivered to Charles R. Hawley the certificate of stock of $22,470 issued in the name of Robert C. Bialy which is to be retained by said Charles R. Hawley as additional collateral to the obligation of said Robert C. Bialy as aforesaid, in addition to the collateral now held by said Charles R. Hawley as indemnity for said debt. “Robert C. Bialy obligates himself to pay to Charles R. Hawley the sum of $30,536 with interest at 6 per cent, per annum on or before January 1, 1918. If said Charles R. Hawley on January 1, 1918, can realize from the sale of the $30,540 of stock allotted to him or any part thereof sufficient to pay said amount of $30,536 with interest, then he shall return to said Robert C. Bialy the $22,470 of Nevada-Utah stock, which has been deposited with him as collateral security, or in the event that said Robert C. Bialy shall tender to the said Charles R. Hawley the sum of $30,536 with interest on or before January 1, 19l8„ then said Charles R. Hawley may, at his option, retain the stock or sell it to said Robert C. Bialy for the sum of $30,536, and upon the making of said tender the lien upon the stock issued in the name of Robert C. Bialy, for the $22,470 of stock shall cease and determine, and the stock shall be delivered to him, but it is expressly understood between the parties that if said $30,540 of stock shall, on the 1st of January, 1918, be worth more than the sum of $30,536, the said Robert C. Bialy shall have no interest in the excess -value of said stock, and same shall belong to Charles R. Hawley, and thereupon the indorsement of Robert C. Bialy on said National Park Bank note shall be canceled and the indemnity agreement heretofore delivered to Charles R. Hawley by Robert C. Bialy shall also be cancelled, so far as that indemnity covers the National Park Bank note.” Out of this contract arises the claim involved in this suit. The plaintiff contends that the obligation of Mr. Bialy was an absolute and unconditional promise to pay $30,536 on or before the 1st day of January, 1918. The defendant claims that it was a conditional promise depending on the value of the stock on the 1st day of January, 1918. For a better understanding of the contract reference' should be made to the history of the $30,540 block of stock. The property of the Nevada Sugar Company was bought on a mortgage sale for $1,000 by Mr. Oxtoby as trustee for the bond holders. Mr. Hawley had paid the National Park Bank note and to that extent was a creditor of the Nevada Sugar Company at the time of the sale. As such, he received $320.19, that being his pro rata share of the proceeds of the sale. This was in January, 1916. The sale was made as a part of the plans to reorganize the company. Then Mr. Oxtoby arranged a sale of the property to a new company to be- known as the Nevada-Utah Sugar Company. In this reorganization the Utah-Idaho Sugar Company, a financially sound and successful corporation, was given a majority of the stock and was to operate the business. The bonds and the balance of the stock for the most part were divided by the trustee among the bond holders, stockholders and creditors of the old company. As creditor, on account of the payment of the National Park Bank note, there was allotted to Mr. Hawley by the trustee this $30,540 of stock. This was on. the 2d of June, 1916, and on the following day the contract in question was made in which the allotment of the stock to Hawley and to others by the trustee was approved and ratified, so that when the contract was made the $30,540 of stock did not belong to Bialy but was the property of Hawley. As to that fact the record is undisputed. The stock was issued to-him. The title was in him, and the contract shows that he proposed to retain it unless the stock depreciated in value or became worthless, in which event, the contract gave him a right to unload it on Bialy.. Having in mind the fact of the ownership of this $30,540 of stock, it is not difficult to understand the unusual and seemingly unreasonable provisions of this contract. The language of the contract and every provision as to the handling and disposition of the collateral is in harmony with the ownership by Hawley. That Bialy was to have no interest in the excess value of the stock if it went above par, that he. could not get the stock back even though he paid or tendered the full amount of the indebtedness, that, if payment were tendered Hawley might, at his option, retain the stock or “sell it to Bialy” for the sum-, of $30,536, all becomes plain when it is understood that Hawley was the real owner of the stock and that Bialy’s part in the transaction was to protect Hawley from loss in the event that the stock went below par. The stock had been given to Hawley as a creditor of' the old Nevada Sugar Company, because he had paid. the National Park Bank note. Bialy had guaranteed to Hawley the payment of this note. That was the situation when the contract was made on the 3d day of June, 1916. Considered in connection with the history of the $30,540 of stock and its relation to the National Park Bank note, it clearly appears that the main purpose of the contract was to secure Hawley from loss if the stock went below par or became worthless, and that Bialy was to be released if it went above par. That is what the parties meant when they said: “But it is expressly understood between the parties that if said $30,540 of stock shall, on the 1st of January, 1918, be worth more than the sum of $30,536, '■the said Robert C. Bialy shall have no interest in the •excess value of said stock, and same shall belong to Charles R. Hawley, and thereupon the indorsement of Robert C. Bialy on said. National Park Bank note shall be canceled and the indemnity agreement heretofore delivered to Charles R. Hawley by Robert C. Bialy, shall also be canceled, so far as that indemnity covers the National Park Bank note.” Mr. Bialy’s undertaking was not an absolute promise to pay unconditionally and at all events the amount specified in the contract, but was a conditional promise depending on the value of the stock on the 1st day of January, 1918. If the $30,540 of stock were above par at that time, Bialy was not liable. If it were below par, he was liable. In this view of the contract the value of the stock on the 1st day of January, 1918, becomes a very material element in the case. The burden of proof was with the plaintiff to establish its value on that date by á preponderance of the evidence. The circuit judge refused to submit the question as to the value of the stock to the jury, because in his construction of the contract it was not material, and if it were material, there was not sufficient competent evidence to justify him in submitting it. Whether this was error depends largely upon the competency of the testimony of Mrs. Bialy. The court permitted her to testify as to the value of the physical property of the company, but excluded her testimony as to the value of the stock. If she knew the value of the property she. had some knowledge of the value of the stock. It had no market value. The value of such stock is best shown by opinion evidence of those who have knowledge of the elements which go to make up the value. The value of the corporate property, whether it was a going concern carrying on a prosperous or a failing business, the price of sugar and the character of the surrounding territory as to its adaptability for the raising of sugar beets in sufficient quantity to enable the company to operate successfully, all were elements which could properly be considered in estimating the value of the stock.. Of these Mrs. Bialy testified: “I spent considerable time in Nevada at the office of the company during the time that my husband was actively engaged in the work of the company there * * * know the different parts of the factory, have been through it all as well as the surrounding county at Fallon. * * * The factory was all in first class condition. Buildings were all concrete, stone and brick. I have also been interested in sugar stock. I have owned stock in the Utah-Idaho Sugar Company as did also my husband. “My husband’s business was hardware, farm implements, machinery, etc., at Bay City, and also real estate’ owned principally by Mr. Bialy. A large part of the machinery that went into the Nevada Sugar factory was made in Bay City and Mr. Bialy handled a large part of it. I have worked in connection with Mr. Bialy for several years, doing correspondence and working on the books and in connection with sales and details, was a joint owner' with him in much of the property and of the real estate. * * * “On the 1st of January, 1918, we were in the midst of the war and the price of sugar was going as high as the government would allow it to go. I am acquainted with the beet fields and lands around Fallon and tributary to it and there was plenty of land and good supplies for beets. There is plenty of land out there and the sugar beets have a larger percentage of sugar than in any other State in the United States. “Q. State, if you' know, the value of the stock of the Nevada-Utah Sugar Company on the 1st of January, 1918? “Mr. Clark: Same objection. This witness is not competent to answer, and it is immaterial. “The Court: Objection sustained. “Mr. Kinnane: The court has in mind that she has dealt in sugar stock in the west and had knowledge of the factory and property? “The Court: Yes. “Mr. Kinnane: And a knowledge of beet growing there, and the quantity, and everything else in connection with it. I would like to repeat that question so as to make the record clear, not that we are disputing the ruling, but on the question here. Now, I want to ask this question: “Q. State whether or not you know what the value of the sugar company stock was on the 1st of January, 1918? “A. Yes. “Q. State then what its value was. “Mr. Clark: I object to that, your honor, as before. “The Court: Sustained.” We think the testimony of Mrs. Bialy shows that she had some knowledge on which to base an ópinion as to the value of the stock. As was said in Continental Ins. Co. v. Horton, 28 Mich. 173: “On this evidence she had some knowledge of values which it was proper she should communicate to the jury.” And in Graves v. Kennedy, 119 Mich. 621: “It is true, as contended, that before the testimony of a witness is receivable, it must appear that the witness has a knowledge of the subject which the jury do not possess, which enables him to give an opinion which will be of aid to the jury.” “While witnesses are not required to be expert or skilled in the strict and severe sense of the term in order to give opinions on value, and while there is no inflexible rule defining how much a witness must know in order to be so qualified, it must be made to appear that he has had, and utilized, means superior to those available to the jurors, for forming an intelligent opinion.” 22 C. J. p. 578, § 682. Measured by these tests, Mrs. Bialy had sufficient knowledge upon which to base her opinion as to value. The extent of that knowledge and the probative weight to be given to her opinion was a question for the jury. The circuit judge erred in directing a verdict for the plaintiff. For this error the judgment is reversed and a new trial granted. Defendant will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Bird, J. In 1916 defendant purchased from plaintiff on contract certain lots in the city of Detroit. The consideration therefor was to be made in monthly payments, and all to be paid at the end of five years. Payments were made from time to time by defendant until May, 1920. Defendant had lost his copy of one of the contracts and claimed he did not know just what had been paid. He secured purchasers for the lots and went to see plaintiff to find what sum he would accept in full payment of the contracts. He was advised that plaintiff would accept $6,850 in full settlement. This sum was paid and the lots were deeded to defendant and by him to the purchasers. Subsequently plaintiff discovered that an error had been made, that the amount to become due on the contracts had been overlooked and he filed this bill to have the mistake corrected. The bill prayed for a lien on the lots in the sum of $1,885.24. Defendant and certain of the purchasers were made parties. Subsequently, by agreement, the purchasers came in and paid the amount of their mortgages into court, and the suit was dismissed as against them. Later the matter came to a hearing and a decree was made for plaintiff, decreeing to him the amount of the deficiency. From this decree the defendant appeals. The point is made in plaintiff’s brief that two or three days following the signing and filing of the decree the clerk of the court in pursuance of an order of court apportioning the amount paid over to plaintiff the amount of this decree, or the sum of $1,885.24, and on the same day the balance of the money, $294.24, was paid over to the solicitor for the defendant. Plaintiff’s counsel asserts that by reason of these facts the case is a moot one and ought not to be considered by this court. Defendant replies that the decree was signed on May 11, 1922, and that on the day following a 20-day order was taken by him to stay execution. He insists that in view of this order plaintiff’s attorney had no right to the money. We agree with counsel for defendant that in view of the 20-day order plaintiff’s counsel had no right to the amount of the decree, and it should not have been paid to him, but the difficulty with counsel’s position is that he accepted the balance of the fund on behalf of his client. The fact that plaintiff’s counsel received the amount of the decree before he was entitled to it would not déprive defendant of the right to make his appeal. But when defendant’s counsel accepted the balance of the money, that was clearly a waiver of any right to complain of the decree. Bigelow v. Sheehan, 150 Mich. 507. See, also, Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Owen v. Yale, 75 Mich. 256; Weber v. Costigan, 139 Mich. 146; Cameron v. Smith, 171 Mich. 333; Hart v. State Fire Marshal, 178 Mich. 609. Defendant’s appeal will be dismissed. No costs will be granted either party. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. This is an action in assumpsit commenced by summons on May 22, 1918. Plaintiif declared upon the following- instrument claimed to have been executed in duplicate by the parties charging its breach by defendant and resulting damages in the sum of $6,000: “Memorandum of agreement, made and entered into, this 15th day of June, 1917, by and between David E. Greenstine, of the city of Detroit, county of Wayne, and State of Michigan, and Abe Srere, of the same place, Witnesseth, that, Whereas, the said David E. Greenstine, is the owner of the premises described as No. 475 Hastings street, Detroit, Michigan. And, whereas, the said Abe Srere is desirous of leasing, and does hereby lease, the said premises. Therefore, in consideration of the sum of forty-eight hundred ($4,800.00) dollars. To be paid to the said David E. Greenstine, in monthly installments of, two hundred ($200.00) dollars each, payable in advance. The said David E. Greenstine, on his part, agrees to install all the necessary light, and the other electric fixtures. And also to put the premises in suitable shape, and condition, for the occupancy, of the party of the second part. “It is agreed, that as soon as the said David E. Greenstine puts the inside of the said premises in such condition, the said parties hereto agree to enter into a written lease, (using Richmond & Backus standard form, No. 10) according to the terms and conditions in this agreement. It is understood, that the rent for the said premises, will begin at the time the said David E. Greenstine presents the said premises in the condition herein set forth. And the said premises herein described includes only the store and dwelling, and enough space for a suitable passage way in rear. It is understood that the said lease shall be indorsed, by the Srere Brothers, to insure the faithful performance of the same. “George Rieman. “David E. Greenstine. “Abe Srere.” Defendant filed a plea of the general issue. The case was tried in May, 1920. Upon the trial it appeared that the copy delivered to defendant was the same as that declared upon with the exception that the word “electric,” before the word “fixtures” in the sentence “The said David E. Greenstine, on his part, agrees to install all the necessary light, and the other electric fixtures,” was omitted from it. After execution and delivery of the two instruments in duplicate, except as above staled, plaintiff made certain repairs on the premises and installed certain electric lighting fixtures. On July 10, 1917, he notified defendant by letter that the premises were ready for occupation, inclosing a form of lease in duplicate signed by himself which he requested defendant to sign and return one of them indorsed by the sureties named in the previous agreement, stating that on receipt of same with pro rata rent he would deliver possession on the date of the lease, which was July 12, 1917, and giving notice he would hold defendant liable for damages caused by his failure to comply with its terms. On July 18, 1917, defendant acknowledged receipt of this letter, objected to the form of lease proposed on the ground it did not comply with their original agreement in the particular that it limited the use of the premises to store and dwelling house purposes, stating the agreement was defendant could inspect the premises and he would not sign any lease until he could do so, concluding, “I am therefore returning you the leases until I am given the privilege of ascertaining whether1 the necessary work has been done to the premises.” On July 17,1917, defendant acknowledged a letter from plaintiff of the 16th, disagreeing with the latter’s construction of their preliminary agreement as to the kind of business which could be carried on in the premises, and referring to certain matters in relation to which they had understanding, asserted that he was anxious to obtain the premises and asked plaintiff to leave the keys with the clerk of the Pontchartrain hotel. On July 18, 1917, defendant again wrote plaintiff that he had examined the premises, claimed that certain shelving which had been agreed to was not yet put in, objected to certain wiring as inadequate, and stated he was ready to take over the keys when such work had been done according to their agreement, but concluding: “I am unable to get Srere Brothers to go as sureties on the lease, but trust this will not interfere with my obtaining said lease.” On July 30, 1917, defendant again wrote plaintiff acknowledging receipt of a letter of July 27, 1917, which advised him possession would not be given unless Srere Brothers would become sureties on the lease, referred to some previous talks and correspondence between them and said that owing to the fact he could not get Srere Brothers ta go on the lease as sureties he was compelled to drop all arrangements made towards taking over the premises, concluding: “I presume there is no use to carry this correspondence any further as each letter seems to be but a repetition of the other and I am therefore dropping the entire matter.” At the trial plaintiff testified that upon defendant’s default he put the premises in the hands of an agent for the purpose of obtaining another tenant therefor, but was unable to secure any one until the expiration of the time specified in the instrument sued upon; that he received no rent from anybody during that time and claimed for rent at the rate and during the whole time mentioned in the agreement quoted, amounting to $4,800, as well as other damages he had suffered in that connection, and introduced the testimony of various witnesses showing that renting conditions during the period covered by the agreement sued on were bad, rendering it impossible for him to obtain a tenant. Defendant introduced testimony tending to show that plaintiff refused various parties who desired to rent the premises, telling some of them that the place was already rented to defendant whom he was holding liable, and renting to anybody else would interfere with his claim for rent and damages against defendant. The case was submitted by the court to the jury against plaintiff’s motion for a directed verdict, resulting in a verdict of no cause of action in favor of defendant. Two motions for a new trial were made, argued and denied without written opinion by the court. Plaintiff assigns 27 alleged errors by the trial court during the progress of the trial in the admission and rejection of testimony, the charge, and refusal to grant a new trial. Some of plaintiff’s assignments of error are not argued and others are not such as to call for review. Of the 89 pages in plaintiff’s brief 68 are devoted to what is entitled “Statement of Facts” and “a sharp condensation of the testimony from plaintiff’s view-point.” Twenty-one witnesses were sworn. Where their testimony was in conflict the truth upon the issue so made was for the jury. Most of the witnesses were examined and cross-examined exhaustively. At the inception of his charge the trial court said to the jury asi follows: “I charge you that under the evidence as presented and the law applicable thereto, that the defendant violated or breached his agreement entered into with the plaintiff wherein he agreed to accept a lease of the premises owned by plaintiff at No. 475 Hastings street, and to secure the indorsement of Srere Bros, thereon as surety for the faithful performance thereof. I charge you that the defendant had no legal right to refuse to accept the lease which was tendered him by plaintiff.” Counsel for plaintiff assigns error upon this instruction because the court limited the case to the view that it was a suit to recover damages for not entering into a lease, and so limiting the case was “misled or confused” into giving a charge which in effect— “is the old time .Roman argument, well known as far back as the Greeks and Romans, that by subdividing and splitting substance may be divided, so that, argumentatively, property may be dissolved and right overpowered;” appealing to the court to notice “that it is reasoning in an imperfect circle;” and that “this charge is incompatible with itself.” As indicative of the imperfect circle and incompatibility of the charge, counsel quotes the following instruction found further along in the charge after in substance instructing the jury at length as to plaintiff’s duty to minimize his damages if reasonably possible by securing other acceptable and responsible tenants during the life of the lease, —“and as a matter of fact, plaintiff did not secure any sum whatsoever on account of the occupancy of ■the premises, No. 475 Hastings street. Your verdict, therefore, must be for plaintiff in the full amount claimed by him unless you find that plaintiff had the opportunity to rent the premises for legitimate purposes to suitable persons who were able financially to pay the rent for the period or part of the period the premises were vacant.” Whether plaintiff made reasonable effort to rent the premises is the paramount issue of fact in the case, to which the conflicting testimony of witnesses for the respective parties was mainly devoted. Upon that issue plaintiff assumed the burden of proof in making out his affirmative case. He testified in part: “I immediately after he (defendant) declared he would not accept the premises, within 24 hours after that, put it into the hands of a prominent real estate agent. He put his signs up through the whole building. “Q. Did you have yourself any application for the tenancy? “A. No.” He also introduced the testimony of his claimed agent and various other witnesses that there was a slump in real estate and rents about that time and no tenants were available. Against this defendant introduced the testimony of various witnesses to the contrary, who testified that business men were looking for available premises in different lines of business and various persons, who were unobjectionable and responsible, made application to plaintiff but he refused to rent on the ground that the premises were leased and he was holding the party to whom he had rented them for the agreed rental, over which he anticipated a lawsuit which might be detrimentally affected if he rented to others. Upon this issue the court charged the jury: “If you find that plaintiff arbitrarily,, without any good reason therefor, refused to rent the premises to any particular tenant, you will diminish the claim of damages to the plaintiff by such an amount as you find from the evidence the plaintiff could have obtained for prospective tenants, if any, who wanted the place and to whom said plaintiff arbitrarily and without good reason refused to rent the same.” The court also charged the jury that the burden of proof was upon plaintiff to establish all necessary facts to substantiate his claim by a preponderance or greater weight of the evidence and if he failed to sustain that burden the jury should find for defendant. Plaintiff’s counsel urges as error that this “places the burden of proof to outweigh defendant’s proof, which is surely not the law of Michigan.” As we understand this objection, in its application to the principal issue involved here, if means that the instruction erroneously put upon plaintiff the burden of proving that he made a reasonable effort to minimize damages by renting the premises during the period defendant had agreed to take it as a tenant. No decisions in this State or elsewhere are cited upon that question by counsel, though conflicting authorities can be found as to it where the relation of landlord and tenant had been established and the tenant who had been given possession by the landlord afterwards abandoned the premises and the landlord sued for rent. That question is not, however, open under the facts in this case. There was no abandonment of the premises by defendant here. Plaintiff was never out of possession of the premises. He refused to accept defendant as his tenant or give him possession, because he breached the contract and would not sign the tendered lease nor furnish the security provided for in their memorandum of agreement. After quoting the memorandum of agreement plaintiff in the first count of his declaration avers full performance, tender and demand on his part, refusal to perform and default by defendant, saying further: “And that this plaintiff avers that he has tried earnestly to rent the said premises which were fitted up by him, plaintiff, at a great expense, for the special use and benefit of the defendant, so as to reduce the loss. But this plaintiff avers that he has not succeeded in so doing. And plaintiff avers that he has suffered great damages by reason of the said written contract to lease and let the said premises as stipulated not being executed, together with the suretyship hereinbefore stipulated for.” Defendant pleaded the general issue without any special notice, putting plaintiff to his proofs, and the latter assumed the burden of proving the averments in his declaration, amongst which was the assertion that he had tried earnestly to rent said premises so as to minimize his damages. Plaintiff’s declaration also contained a count for rent, alleging that on June 15, 1917, defendant executed a written lease of the premises, and referring to the quoted contract of agreement as such. The first count was upon the theory of defendant’s violation of an executory contract for a lease, while the latter was on the conflicting theory of a violation of an executed lease. The proofs sustained the former. When defendant’s counsel moved that plaintiff be required to elect between the two theories or that the court take from the jury plaintiff’s claim for rent under an alleged lease the court inquired of plaintiff’s counsel if there was any objection, and none being made, submitted the case to the jury under the first count on the theory of an executory contract to make a lease indorsed by surety for defendant’s faithful performance along the lines of the memorandum of agreement, and instructed the jury that the undisputed proofs showed defendant had violated the same. We find no error in this ruling. Plaintiff treated defendant’s refusal from the beginning as a breach of the executory contract, as he had a right to do, refused him the premises and kept possession, notifying him in writing that he would hold him “liable for any loss or damages that I may suffer through your delay or otherwise in carrying into effect the said agreement of June 15, 1917.” This notice was given on July 10, 1917, in connection with notice that the premises were ready for occupancy and tender of a lease for defendant and his stipulated surety to sign. Correspondence between them followed in which defendant sought to secure the premises without giving the agreed security, to which plaintiff did not consent, and on July 30, 1917, defendant finally wrote plaintiff admitting, his default and notifying him that he therefore dropped “the entire matter.” Recognizing his duty to minimize damages plaintiff testified that within 24 hours after receiving such notice, he took steps to secure tenants for the property and made all reasonable effort to that end, in which he was unsuccessful during the nearly two remaining years contemplated in their memorandum of agreement. This the jury did not believe in the face of the testimony defendant produced, and rendered a verdict of no cause of action. The verdict cannot, however, be sustained. In any aspect of the case plaintiff was, under the undisputed evidence, entitled to nominal damages. There was a valid contract which the court rightly instructed the jury defendant was shown to have breached without any legal justification. This, as matter of law, entitled plaintiff to a verdict in his favor for at least nominal damages and the court should have so in structed the jury. It is undisputed that for 20 days after receiving notice from plaintiff the premises were ready for his occupancy on his complying with the terms of their memorandum of agreement, defendant corresponded with plaintiff on the subject, claiming to have planned and indicating a desire to occupy the premises, making overtures for securing them. While this was in progress and until his breach of the contract by final refusal, plaintiff was under no obligation to seek other tenants to minimize damages.. The judgment must therefore be reversed, with costs to plaintiff, and a new trial granted. Wiest, C. J., and Fellows, McDonald, Clark,, Bird, Sharpe, and Moore, JJ., concurred.

Bird, J. Plaintiff installed several flue blowers in defendant’s mill and they were paid for in part. Suit was begun in justice’s court to recover a claimed balance of $140.10. Personal service was had and on the return day plaintiff filed its declaration and defendant pleaded orally the general issue and reserved the right to amend. Later it filed the following notice of recoupment: (Title of cause.) “To the above named plaintiff: “Please take notice that the following constitutes the defendant’s bill of particulars, in its plea of set-off and recoupment: “To excess fuel used by . defendant on account of delay in plaintiff’s installation of flue blowers, from March 25 to April 16, at $5 per day.........$100.00 “Interest to date,....................... 46.00 "“Detroit, Mich., October 29, 1919. “Yours, “Mills, Griffin, Seeley & Streeter, “Attorneys for Defendant.” Justice Scott before whom the case was tried found a verdict for plaintiff in the sum of $40.10. Plaintiff was not content with the outcome and appealed the case to the circuit court. When the case came on for hearing in- the circuit court plaintiff made proof of its claim. Defendant, on the cross-examination of one of plaintiff’s witnesses, attempted to lay the foundation of its claim of recoupment, but the trial court held that thé plea and notice were not sufficient to admit that defense. On account of this ruling defendant was deprived of its defense and a verdict for plaintiff was directed. In order to make the defense of recoupment it was necessary to give notice of it under the plea of the general issue (3 Comp. Laws 1915, § 12470). It was not only necessary to plead recoupment, but it was necessary to set out the facts which constituted the recoupment. Watkins v. Ford, 69 Mich. 357. If we keep in mind the liberality which has always existed with reference to pleadings in justice’s court, we have little trouble in concluding that defendant’s amended pleading was sufficient to enable it to make the defense of recoupment. The important thing to be kept in mind is whether the plea and notice are sufficient to advise the plaintiff what defense will be made. If it is sufficient for this purpose it will be sufficient as a pleading in justice’s court. Eddy v. Manshaun, 42 Mich. 532. In the present case the general issue was pleaded on the return day. The right to amend its pleading was reserved. It came in later and filed the notice heretofore quoted. This advised the plaintiff that defendant would rely on recoupment. The notice which follows advised the plaintiff of what the recoupment consisted. When plaintiff came into circuit court it knew precisely what the defense was, but if it were in doubt as to any particular phase of the notice it could have filed a motion to have it made more definite. In Carver v. Bielke, 177 Mich. 406, a situation arose, very similar to the one in the present case. In holding that defendant should have been permitted to make his proof of recoupment, the court said in part: “In view of the liberality with which this court has always viewed pleadings and proceedings in justice’s court, where formalities and technicalities have been discountenanced, and that the pleadings are held good if sufficient notice has been given as to what issue is to be met, we are of the opinion that the court should have overruled the objection of plaintiff, and should have received evidence offered by defendant in recoupment.” Some question is raised that the notice under the general issue was not filed by the justice. It is quite evident that Justice Scott considered the notice as he reduced plaintiff’s claim in an amount equal to the amount claimed in recoupment. Besides, the notice appears to have been returned as a part of the files of the case. In view of this the notice should be considered a part of the files of the case. The judgment will be reversed and a new trial granted. Defendant will recover its costs in this court. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. On the 2d day of June, 1922, the defendant, acting as circuit judge in the Wayne circuit court, entered a decree dismissing plaintiffs’ bill in a suit against Henry W. Campbell and Katherine H. Campbell. Within 20 days after the date of the decree the plaintiffs filed a claim of appeal with the clerk and paid the statutory fee. Nothing was done by way of obtaining an extension of time in which to make and prepare their case on appeal, until the 21st day of August, when they procured a certificate from the stenographer and secured an extension of time to August 22, 1922. At the same time they made a motion to be' heard on August 25th for a further extension until October 22, 1922. On the 25th day of August, 1922, the circuit judge made and filed an order extending the time until October 22d, on condition that plaintiffs discharge a notice of Us pendens filed with the register of deeds on the commencement of the suit. Plaintiffs here seek a writ of mandamus to compel the defendant to vacate that portion of his order of August 25, 1922, requiring them to file a discharge of the lis pendens as a condition to granting an extension of time within which to settle their case on appeal. The plaintiffs allowed the 20-day stay to expire without taking any steps under the statute to have the time extended beyond that period. They then lost their right to appeal. The circuit court could not restore it. In Perkins v. Perkins, 173 Mich. 690, it was said: “This court has no original jurisdiction to hear and determine appeals in chancery, and appeals lie from decrees of circuit courts, in chancery, only because they are permitted by the legislature. Having the power to permit or refuse appeals tó be taken, the legislature has the power to prescribe the conditions which shall attend and control the taking of such appeals. The legislature has not qualified or limited an existing right, but has created a right, to be exercised within a prescribed period of time, in a prescribed manner. Whether an appeal shall be allowed in this cause is not a question of discretion of the court, but one of compliance with the conditions which the legislature has prescribed for taking such appeals. In other words, the jurisdiction of the court to hear and determine the appeal depends upon whether the statute has been followed.” There must be an extension beyond the 20-day period or the right to appeal is lost. Miley v. Grand Traverse Circuit Judge, 217 Mich. 415. The statute must be followed. The legislature had a wise purpose in enacting legislation to control and regulate the time and method in making and perfecting appeals. It provided with clear and sufficient liberality for the protection, under all circumstances, of the rights of an appealing party. These provisions must be complied with or the right to appeal is lost, and when , once lost it cannot be restored by the court. In the instant case the proceedings pointed out by the statute were not followed. No extension of time was secured beyond the 20-day period. Thereafter, the circuit judge had no jurisdiction to make an order granting further extension. The order in question was without authority. The writ of mandamus is denied. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. This bill was filed to reform a land contract and to have it specifically enforced as reformed. In 1913, the defendant owned land fronting on the south shore of Walled Lake in Oakland county, Michigan. Out of it he platted a subdivision known as Chapman’s Walled Lake subdivision. The lots shown upon the plat are bisected by a highway 50 feet wide, known as the Walled Lake road. The auditor general refused his approval of the proposed plat until those parts of the lots on either side of this-road were separately numbered. This was done and the plat was approved. In the meantime, on August 20, 1913, the plaintiff had purchased on land contract lots described as numbers 83, 84, 85, and 86 of the proposed plat. When the lots were renumbered, as required by the auditor general, these numbers were retained as designating those parts of the lots lying north of the road, and those parts lying south of it were numbered 101, 102, 103, and 104. It is the plaintiff’s claim that the contract should be reformed by correcting the description so as to include lots 101, 102, 103, and 104. The plaintiff tendered to the defendant the balance due on his contract with interest and demanded a deed of the 8 lots as shown by the corrected plat. The defendant refused to make and deliver the deed as requested, and the plaintiff brought this suit. The defendant answering denies the right of the plaintiff to a reformation of the contract, and in his pleadings asks that in the event the court should reform it and decree specific performance, that such decree shall restrict the use of the lots for cottage and residence purposes only, the cottages to cost not less than $500 each, and to be erected not less than 25 feet from the front lines of the lots. In an amendment to his answer and cross-bill filed by leave of the court after the testimony was concluded, he alleges that as a part of the consideration for the sale of the lots, verbally agreed to at the time, the plaintiff was to improve them by building a cottage on one of the lots during that season, and a cottage on each of the remaining lots very soon thereafter; that he did not build these cottages, and that, therefore, there has been a failure of a part of the consideration, and that for this reason the contract cannot be specifically enforced. The circuit judge reformed the contract as requested by the plaintiff and directed the defendant to execute and deliver a warranty deed containing the following restrictions: “No building shall be erected upon any of said lots which shall cost less than $500, and no building shall be placed within 25 feet of the front line of lots 83, 84, 85, and 86.” From the decree entered both parties have appealed, the plaintiff claiming that the decree should be modi fled by eliminating the restrictions imposed by the court, the defendant claiming that the word “dwelling” or “cottage” should be inserted in place of the word “building.” In his brief, and in his oral argument before this court, counsel for the defendant concedes that the plaintiff is entitled to a reformation of his contract so as to include lots 101, 102, 103, and 104, and that as reformed he is entitled to specific performance thereof, if the lots be restricted in their use so that the plaintiff shall be required to build thereon no buildings except cottages which are to cost not less than $500 each and which are to be built not less than 25 feet from the front lines of the lots. Whether there should be any restrictions in the use of the lots or whether there should be such restrictions as the defendant claims, is the sole remaining question in the case. In making the contract in question the ordinary printed form was used. It contained in the printed form the following provision for restrictions: * * * “and, as part and further consideration of this contract, and within............from the date hereof, to erect on said lands a suitable............ at least..............stories high, to cost not less than five hundred dollars, said,...........to be not less than 25 feet from the front line of said lot.” The defendant, who drafted the contract, did not fill in these blank spaces. He now asks to have them filled- in according to an oral agreement which he says he had with plaintiff at the time. This can only be done because of fraud or mutual mistake of the parties. The defendant claims mutual mistake. The testimony does not support this claim. The plaintiff denies that there was any agreement as to restrictions. The defendant in drafting the contract intentionally omitted to fill in the blank spaces in the printed form because he thought it was not necessary. He would rely on the word of the purchaser. . “Q. Have you any explanation as to why you did-n’t fill it in? “A. Well, I have not got any explanation to make ■ — quite likely I thought maybe it was not necessary. “Q. That would be your reason, you did not think it would be necessary? “A. Thinking back today, I know it was. * * * “Q. Where did you get the blank contract to fill in? “A. I went down town and bought one, maybe I borrowed some. But it was their agreement what I done and I told them in the first place that I took their word for it. * * * “Q. When you began to sell lots on that subdivision, after you sold Hogle the first year or two, did you write the restrictions in the deeds or contracts? “A. Some of them I did, most of them I didn’t, they were friends of mine and I depended on their word.” This evidence negatives the claim that because of a mutual mistake the restrictions claimed to have been agreed upon were not written into the contract. It was not intended that they should be written in. There was no mistake — and no fraud. Equity cannot reform unless there is mistake or fraud. While the circuit judge correctly declined to reform the contract by incorporating the alleged oral agreement, he construed the blank provision as ai restriction against erecting a “building” upon any of the lots which would cost less than $500 and which would be placed within 25 feet of the front line. In this we think the court erred. The blank spaces in the restriction clause were not filled in. They were not intended to be. There was therefore no restriction clause in the contract. There was nothing to be construed. The unfilled portion of the printed form was ■of no more effect than if it had not been there. If they had desired to make it effective they would have filled it in and made it a part of the contract. The ■court added a provision to the written contract which the parties themselves purposely left out. He was without authority to do it. The decree should be modified, granting specific performance of the contract as reformed without any restriction as to. the use of the property. Plaintiff will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steeke, JJ., concurred.

Moore, J. This is an action brought by plaintiff against the defendant for damages for alienating the affections of the wife of plaintiff. The case was tried', before a jury who returned a verdict for $3,500.. Afterwards defendant made a motion for a new trial,, and the judge filed an order granting a new trial unless the plaintiff within 20 days would remit all in excess, of $1,000. Plaintiff did not remit and seeks to have this court review the case by writ of error. After the case reached this court the defendant moved to dismiss the writ of error, claiming this court. Could not review the action of the trial court when it granted a new trial. The motion was held until now. The contention of the appellant would doubtless be true if the order made had not been a conditional one. We think when an order is made conditional as in the instant case, writ of' error may be brought. Carton v. Day, 157 Mich. 43. . The plaintiff contends: “(1) The lower court has no discretion to reduce a verdict in a tort action, unless the record discloses the jury abused its authority, or was unduly influenced, or the verdict is such as to suggest at first blush, passion, prejudice or corruption on its part. “(2) The verdict is not excessive, and in such actions, it is for the jury to fix the amount under proper instructions by the court, which has no legal responsibility to determine the amount, and should not interfere with the verdict in the absence of misconduct, passion or prejudice. “(3) It would be a miscarriage of justice to permit the order of the circuit court to stand, because a court must find something tangible than a difference of opinion as to amount, before it should substitute its opinion for that of jury; in other words, its action must be a judicial and not an arbitrary one.” In support of these propositions counsel quotes at length from Fishleigh v. Railway, 205 Mich. 145; Wilson v. Railway, 208 Mich. 411; In re Klink's Estate, 210 Mich. 614; and cites many other authorities. In each of these cases above mentioned the question involved was as to the duty of the Supreme Court in setting aside the verdict of a jury and the language used in the various opinions must be interpreted with that question in mind. So far as the first mentioned of these cases is concerned, so far as it is applicable to the instant case, it is against the contention of counsel for the appellant. “There is no doubt the trial judge has a wide discretion in granting or refusing to grant new trials either upon his own motion or upon the motion of a party. Manufacturers’ Mutual Fire Ins. Co. v. Gratiot Circuit Judge, 79 Mich. 241; Reynolds v. Newaygo Circuit Judge, 109 Mich. 403.” Zeilman v. Fry, 213 Mich. 504, 510. Defendant stoutly denied that he had so conducted himself as to give the plaintiff a cause of action, and that his only relations with the wife of defendant was to take her for short rides in his automobile a few times. The case of the plaintiff depended almost wholly upon the testimony of the wife of the plaintiff. Her testimony covers upwards of 30 pages of the printed record and contains, to say the least, what the trial judge doubtless regarded as many improbabilities. Mr. and. Mrs. Decker had no children. There were about 20 witnesses sworn for the defense. Some of the testimony indicated that when Mrs. Decker first met Mr. Fair her relations with her husband were not pleasant, that she was earning her own living; ■that she frequented the skating rink in the absence of her husband, and danced with different men. There was testimony of witnesses that they visited houses of ill fame with the plaintiff at Detroit, at South Bend, and at other places. Take it all in all, the record is an unsavory one. The trial judge saw and heard the witnesses. We are not satisfied he abused his discretion in making the order he did. . The case is remanded for further proceedings, with costs to the appellee. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere,.JJ., concurred.

Per Curiam. The trial judge filed an opinion which we adopt: “School district No. 5, Springwells township, Wayne county, wanting a new school building erected, according to plans and specifications prepared by architects, the school board advertised for competitive bids-Each bidder was required to deposit a certified check equal to five per cent, of the bid made, to be forfeited in case of acceptance of the bid and refusal of contract by the bidder. Plaintiff is a contractor and bidder residing in Detroit and after examination of the plans and specifications, prepared his estimates and on the day appointed for opening the bids filed his. bid, proposing to furnish the necessary labor and material to complete the school building for the sum of $63,660. At the request of plaintiff the opening of bids was deferred an hour or so, in order that he might finish the preparation of his bid. Upon receiving plaintiff’s bid, the school board, at the offices of the architects, proceeded to open all the bids filed, some nine or ten in number, and finding plaintiffs bid the lowest, awarded him the contract and directed the architects to prepare the necessary contract and bond forms and to notify plaintiff of the acceptance and of the fact that the board would meet the next Saturday to approve his bond and execute the contract. The bids were opened on Saturday.and on Monday the architects mailed a letter to plaintiff by depositing the same in the mail box in the Union Trust Building, notifying him that he had been awarded the contract and that the bond forms were ready for signature and the school board would meet the next Saturday to execute the contract. “Thel next day after filing his bid, and after it had been accepted by the school board, but before plaintiff knew that he had been awarded the contract, he went over his figures and discovered that he had left out of his estimate the cost for plastering the building, amounting to the sum of $6,400, according to an estimate that had been furnished him by a plasterer. Upon making this discovery he telephoned one of the architects and informed him of the mistake and said that he did not wanti the job at the price he had bid, and on Monday following the opening of the bids on Saturday, and before he actually received the letter notifying him that he had been awarded the contract, he prepared a letter, addressed to Mr. Haggerty, clerk of the school board, as follows: “ ‘This is to inform you that we did not 'include the plastering in the new school building to he erected on Lois avenue, south of Michigan avenue, in our proposal to you of February 23. This will amount to sixty-four hundred dollars, in addition to our figure submitted. “ ‘We regret very much that this error was made and withdraw our former figure and ask that you return our certified check amounting to thirty-two hundred dollars.’ “Having prepared the letter, plaintiff went to the residence of Mr. Haggerty the same day, and being there informed that Mr. Haggerty was not at home, he left the letter with a lady he supposed to be Mrs. Haggerty. Mr. Haggerty has never been married and on the day in question had a housekeeper, who is now dead, and he never received the letter. “On Saturday the school board met to execute the contract and for the first time learned of plaintiff's mistake and that he would not enter into contract according to his bid, and thereupon the school board caused the check, given by plaintiff, to be cashed and the money is now on deposit to the credit of the school district. New bids were advertised for and the contracts let, a little over two weeks later, for the sum of $69,440, the plaintiff making no bid. “Plaintiff files the. bill herein to have his bid canceled and to save his deposit from forfeiture and asks that the school board be decreed to refund him the $3,200. The school board acted in good faith and without any knowledge or suspicion of the mistake made by plaintiff, and claim that plaintiff by refusing to execute the contract has made the school building cost the district $5,780 more than his bid, and insist that plaintiff should not be granted relief. Under the evidence it is clear that plaintiff inadvertently omitted from his estimate the cost of plastering. “The refusal of plaintiff to execute the contract made new bids necessary as the board could not go back to the old bids and award the contract to the next lowest bidder. Twiss v. City of Port Huron, 63 Mich. 528. All the parties have acted in good faith. “Upon this record can plaintiff be granted relief? I am satisfied that his remedy, if any, is to have rescission or cancelation of his offer or bid decreed. ■ _ “The point has been made that, upon acceptance of his bid and notice thereof by depositing the same in the mail, he could not withdraw his offer. Conceding such to be the law, it does not follow that the court may not grant rescission. It is undoubtedly true that, filing a bid, as plaintiff did, upon invitation, was an offer intended of itself, if accepted, to create legal relations beyond the power of one party to sever without liability, because no future negotiations were contemplated and nothing remained to be done beyond reducing the same to form strictly in accord with the accepted offer; But this does not put the matter beyond the power of the court of equity to relieve the plaintiff from the ruinous consequences of his mistake, provided the school district can be said to be left thereby in statu quo. It is also true that no contract relation existed until notice of acceptance of the bid was given plaintiff. “Plaintiff contends that, the notice, to be sufficient, had to be received by him in fact, and he is not to be held to have had notice of acceptance from the time the letter giving it was placed in the mail for transmission, and therefore his letter withdrawing his bid precluded contract relations. This position cannot be maintained. His letter of withdrawal was never received by Mr. Haggerty. Revocation, to warrant release, must be shown to have been received by the other party. “The question of whether the notice of acceptance of the bid dates from the mailing of the letter, is interesting, and while not of decisive importance in this case, the matter having been argued, I shall express an opinion thereon. “No particular method of notification of acceptance having been designated by plaintiff, the school board had a right to make the service by mail. Wilcox v. Cline, 70 Mich. 517. “ ‘One who makes an offer, knowing that it is to be accepted when the offeree is not in personal communication with the offerer, contemplates acceptance by mail or telegraph with the corresponding legal consequences.’ 1 Page on Contracts (2d Ed.), § 211. “The great weight of modern authority is to the effect that the acceptance is operative, if made by mail, from the moment that its transmission begins. Patrick v. Bowman, 149 U. S. 411 (13 Sup. Ct. 811, 866); Brauer v. Shaw, 168 Mass. 198 (46 N. E. 617). Depositing the letter in the mail box instead of the post office was sufficient, being according to commercial usage and common business methods. Wood v. Callaghan, 61 Mich. 402 (1 Am. St. Rep. 597). The bid made by plaintiff was beyond his withdrawal as soon as notice of its acceptance was mailed. “This brings me to the question of whether this court should grant rescission of the contract relations growing out of the bid and its acceptance. Upon this question I have examined many adjudged cases, and at first I was struck with the apparent want of harmony existing in the decisions, but upon more mature reflection and having in mind the true line of distinction pointed out in the case I shall take the liberty to make practically the opinion in this case, the lack of harmony disappears to a great degree. The governing rule in the instant case is so well stated and reasoned in the late case of St. Nicholas Church v. Kropp, 135 Minn. 115 (160 N. W. 500, L. R. A. 1917D, 741), that I adopt it as decisive herein. “In that case: “ ‘Plaintiff, a religious body, desired to erect a church. It advertised for bids. Carl Kropp and' two others responded. Each bid was accompanied by a certified check in the sum of $1,000 to insure the entering of a contract by the successful bidder to build the church according to the plans and specifications upon which bids were made. When the three bids were opened in the presence of the bidders, Kropp’s being for $30,973, was found to be the lowest — about $3,900 below the next highest. Thereupon the committee of plaintiff, in charge of the building of the church, voted to award the work to Kropp, and notified him that his bid was accepted. The contract was not then drawn, owing to the illness of the architect. The same day Kropp, on his return home, discovered that through some oversight the item, of the structural iron required in the building had not been included in the bid. The value of furnishing this in place was estimated at $2,350. The next day he notified the building committee of his mistake, and that he could not enter the contract unless he received at least $2,000 more than the bid. This the committee declined to give. Kropp refused to enter the contract and stopped payment of his certified check. The erection of the church building was awarded to one Lange for $32,775 on a belated bid received three or four days after the others had been opened. This action was brought by plaintiff against the bank upon which the check was drawn. The bank answered, deposited the amount of the check in court, and asked the court to require Kropp to interplead. This was done. * * * “ ‘Kropp was not entitled to the fund in court unless he could be relieved from the effect of the acceptance of his bid. This depends strictly upon the power of a court of equity to grant relief. His offer had been accepted. This made at least a preliminary contract. Tunny v. City of Hastings, 121 Minn. 212 (141 N. W. 168). As part thereof he had agreed that this fund should belong to plaintiff in the event that he refused to enter the contemplated contract. It would seem clear that a strictly legal action based on the ownership of the fund could not be maintained by Kropp so long as a legal acceptance of his bid stood in the way. In fact, his whole appeal for redress in this court is related on the proposition that a court of equity may, in certain cases where a court of law is powerless, grant relief, and that this is such a case. * * * “ ‘The jury and court found that, in, his bid, Kropp had made an honest mistake without negligence. The mistake amounted to more than $2,000. Does this entitle him to any relief, when plaintiff was not to blame in any way for the mistake, and had no knowledge that Kropp had made it? We think that the facts herein bring the case within this principle governing a' unilateral mistake stated in 1 Story, Equity Jurisprudence (12th Ed.), § 138: “ ‘ “But where the mistake is of so fundamental a character that the minds of the parties have never, in fact, met, or where an unconscionable advantage has been gained, by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error or in not sooner claiming redress; and no intervening rights have accrued; and the parties may still be placed in statu quo; equity will interfere, in its discretion, to prevent intolerable injustice.” * * * In Hearn v. Insurance Co., 20 Wall. (U. S.) 488, it is said: “ ‘ “A mistake on one side may be ground for rescinding, but not for reforming, a contract.” * * * “ ‘The question here is whether a mistake of over two thousand dollars in the bid) upon the construction of this church is merely incidental or fundamental. We think the amount is so large that it is unreasonable to suppose that Kropp would have made the bid he did make, if he had known that the structural iron work was not included therein. Here the finding is that it was an honest mistake made without negligence. Plaintiff was apprised of the error at once. No intervening rights accrued. The belated bid which plaintiff accepted was a trifle less than the one Kropp intended to make. There can be no question of not placing plaintiff in statu quo. It did nothing in reliance upon Kropp’s bid, and did not change its position in the least between the time it notified him of acceptance and the time it received notice of his mistake.’ “Here the court reviewed the authorities and held that the bid be rescinded and canceled and the fund in court be awarded to Kropp. “In Board of School Commissioners v. Bender, 36 Ind. App. 164 (72 N. E. 154), the contractor or bidder placed his estimate upon different portions of the work, on separate pages of his estimate book, and in his hurry he turned two pages instead of one and thus omitted to carry forward, in his aggregate bid, a material portion of his estimate, and it was held not equitable to permit the plaintiff board to profit by the mistake. “In Bromagin & Co. v. City of Bloomington, 284 Ill. 114 (84 N. E. 700), relief was granted the bidder because of a mistake arising from inadvertently using the weight per foot of iron pipe for its price per foot, making a mistake of $6,000. “In Barlow v. Jones (N. J. Ch.), 87 Atl. 649, the bill was filed to enjoin the collection of a check deposited with a building commission appointed to erect a court house. The complainant’s bid was accepted; but he, upon discovering that his proposal was $28,769 less than he intended it should be, declined to execute the contract. In making up his estimate he overlooked an item of $28,000 furnished him by an intended sub-contractor. The court said: “ ‘Whether equity will relieve in any particular case must be determined by the importance of the mistake — whether it can be rectified without injurious results to the other party who may have assumed obligations or changed his posture upon the supposition that the contract was a valid and enforceable one, and whether the mistake was or was not the product of gross negligence on the part of the party asking relief. * * * There has been no change in the status of the parties induced by the belief that Barlow would execute his contract.’ “The court annulled the contract arising from the bid and the acceptance thereof and directed the delivery of complainant’s check to him. “In the instant case it may be thought that the school district cannot be said to be placed in statu quo when it is considered that the building cost nearly six thousand dollars more than plaintiff’s bid. To place in statu quo does not mean that one shall profit out of the mistake of another. It does not appear that plaintiff’s mistake has made the school building cost more than it otherwise would have cost. The school district, if placed back where it was before the bid, loses nothing except what it seeks to gain out of plaintiff’s mistake. To compel plaintiff to forfeit his deposit, because of his mistake, would permit the school district to lessen the proper cost of the school building at the expense of plaintiff, and that, in equity, is no reason at all for refusing plaintiff relief. “An examination of the authorities leads to the conclusion that, under the evidence the plaintiff should have relief, and he is granted a decree rescinding and canceling the bid, and contract arising out of its acceptance, and adjudging that the defendant school district pay to him the $3,200, without interest, and. that he have process for the enforcement of the same.. It being considered that the cost of readvertising for’ bids ought to off-set the costs herein, no costs are-awarded.” The bill of complaint is against the school district, and prays relief against it. The process is directed, to the officers of the district as such, and the answer is by them. Because of this discrepancy a motion to dismiss has been made here by counsel for the defense. The trial was upon the theory of the bill of complaint. The matter was not brought to the attention of the trial judge. Hence the motion is denied. Decree affirmed, with costs of this court to plaintiff., Wiest, C. J., and Clark, J., did not sit.

Bird, J. The J. C. Hatfield Company was a corporation engaged in selling fire, accident and industrial insurance, and furnishing indemnity bonds, in the city of Kalamazoo. J. C. Hatfield was president and manager of the company. The defendant is a con tractor in the same city. Between the years 1917 and 1921 the defendant, from time to time, purchased from the J. C. Hatfield Company various kinds of insurance until the premiums amounted to upwards of $1,000. It appears that Hatfield and his father were indebted to defendant in about the sum of $900. The parties offset these accounts, leaving a small balance owing to the J. C. Hatfield Company. Later, the J. C. Hatfield Company became financially embarrassed and made an assignment to Charles S. Fowler, the plaintiff, for the benefit of its creditors. Fowler demanded from defendant that he pay his account to the company, and refused to recognize the offset of his personal account against the account of the company. They were unable to agree and this suit was begun to recover it. At the trial counsel for the respective parties agreed as to the facts and submitted the legal question as to whether Hatfield could, under the circumstances of this case, pay his individual debt by money owing to the J. C. Hatfield Company. After considering the arguments of counsel, the trial court concluded this could not be legally done and directed a verdict for plaintiff in the sum of $1,167.43. Defendant then employed other counsel, who have assigned a large number of errors. Several errors are assigned involving questions of practice and procedure. Opposing counsel replies that these questions cannot be raised in this court because they were not raised in the lower court, and further because there are no assignments ’ of error under which they can be properly considered. We have examined the record and are of the opinion that this objection is well taken. The following excerpt from the charge indicates that the trial court understood there was but one question of law involved: “Counsel upon both sides practically agree upon the facts' involved here; that is, that there is no dispute-about the facts, but that it resolves itself into a question of law for the court, based upon those facts, and as the court views the case at this time, he is satisfied, that there is no issue of fact to be submitted to the jury, and that the case must be disposed of as a legal proposition.” This court does not take original jurisdiction of this, class of cases. It sits as a court of review to pass, upon the proceedings and decisions of the lower court, and not upon questions raised in this court for the first time. We have often indicated our refusal to pass upon questions not presented to or decided by the lower court. Doty v. Gillett, 43 Mich. 203; Hyde v. Tenwinkel, 26 Mich. 93; Gensler v. Nicholas, 151 Mich. 529 (14 Ann. Cas. 452); Kennedy v. Ford, 183 Mich. 481; Webber v. Billings, 184 Mich. 119; O’Toole v. Insurance Co., 159 Mich. 187 (24 L. R. A. [N. S.] 802). Adhering to these holdings we shall decline to pass upon those in the present case. The one question presented below and which is before us for review is whether J. C. Hatfield could pay his individual debts and those of his father with credits due the corporation, of which he was president and manager. The general rule is that the principal may recover his property or its value from a third person where it has been wrongfully transferred by his agent contrary to instructions or in excess of authority. Unauthorized payments of money made by an agent may, as a rule, be recovered by the principal as money due and received; and where an agent without apparent authority uses property of his principal to liquidate his own indebtedness to a third person, or otherwise disposes of it, such property or its value may ordinarily be recovered by the principal by an action of replevin or other appropriate action. 31 Cyc. p. 1605. A person who knowingly receives the money or property of a principal from an agent in payment of the latter’s debt does so at his peril. 21 R. C. L. p. 913. This rule has been followed in Michigan whenever the question has arisen. Hurley v. Watson, 68 Mich. 531; Cowan v. Sargent Manfg. Co., 141 Mich. 87. For a further discussion, see Gerard v. McCormack, 130 N. Y. 261 (29 N. E. 115), and note in 14 L. R. A. 234. There are no questions of bona jules in the case. The facts bring it within the general rule. Defendant was cognizant of the fact that he was exchanging his account against Hatfield and his father for his indebtedness to the company. The mere fact that defendant was mistaken as to the power of Hatfield to deal with credits of the company would make the situation no better for him. The trial court reached the proper conclusion, and the judgment will be affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. This bill is filed for the purpose of procuring a decree setting aside a workmen’s compensation agreement and the order of approval by the industrial accident board on the ground that the agreement was secured through mistake, fraud and misrepresentation. The plaintiff is an electrician. On the 7th day of August, 1918, he was in the employ of the defendant Mueller Metals Company. The Travelers Insurance Company was the insurer of the Mueller Metals Company. Both the plaintiff and the Mueller Metals Company were under the compensation. law. On the 7th day of August, 1918, while in the course of his employment, the plaintiff was severely injured by coming in contact with an electrical switch installed by the defendant Port Huron Gas & Electric Company on the premises of the Mueller Metals Company. Immediately after the accident the plaintiff was taken to the hospital where he remained for four weeks. While he was still at the hospital, the Mueller Metals Company sent an automobile and had him brought to its office where he was induced to sign a compensation agreement. He claims this agreement was fraudulently obtained and asks to have it set aside. The Mueller Metals Company and the Travelers Insurance Company are willing that it should be set aside on the ground of mistake, but the Port Huron Gas & Electric Company insists that there is no evidence of mistake or fraud; that, if there were such evidence, the plaintiff cannot now assert it because he was negligent in that he did not use reasonable diligence to ascertain the truth, and that after he discovered the fraud or mistake he was guilty of laches in failing to seasonably move to set it aside. The circuit judge entered a decree setting aside the contract. From this decree, defendant Port Huron Gas & Electric Company appeals. The undisputed evidence shows that about two weeks after the accident, while plaintiff was still being treated at the hospital, the Mueller Metals Company took him to its office, and that Mr. Miller, the paymaster, with whom plaintiff was acquainted, and in whom he had confidence, presented the contract in question for him to sign; that he was in such a weak mental and physical condition that he could not read the instrument and did not understand it; that he told Miller so, and asked if it was all right for him to sign it; that Miller told him it was all right, that it was a mere matter of form for filing with the insurance company; that, relying on the representations of. Miller and not knowing it was a compensation agreement, he signed the contract after which Mr. Miller gave him a check which he said was a little present; that immediately thereafter plaintiff submitted the agreement and the check to a reputable attorney in Port Huron, who undertook to explain it but was unable to make him understand; and that he did not understand that he had signed a compensation agreement until he had recovered sufficiently to leave the hospital two weeks later and again interviewed his attorney. This was the substance of the plaintiff’s testimony relative to the contract. It was undisputed. Mr. Miller was not sworn as a witness, though the record shows he was present in court at the hearing. The circuit judge charitably characterized Mr. Miller’s conduct as “at most a mistake of law.” There is no element of mistake either of law or fact in this transaction. It was plain fraud. It is true, as counsel for the defendant assert, that “parties are held to some diligence in protecting their own interests,” but the plaintiff’s admitted mental condition renders such a rule inapplicable to this case. He was in no physical or mental condition to safeguard his rights. He was at that time mentally incompetent to understand the transaction in which he was engaged. He was not negligent. Was he guilty of laches? This contract was entered into on the 2ist of August, 1918. Two or three weeks later when he had sufficiently recovered to understand the nature and purport of the instrument which he had signed, he refused to cash the check which accompanied the contract and did not then or thereafter accept any compensation. He left the matter with his attorney, who promptly notified the proper officers of the Mueller Metals Company that he would not accept payment for his injuries under the workmen’s compensation act, and that he was going to look to the Port Huron Gas & Electric Company for damages. Following this a considerable time was consumed in attempts at an amicable adjustment. Of this, one of plaintiff’s attorneys testified: “I tried to get the various companies, who might be liable whichever way the thing went, to put up a part each for a proper settlement and avoid any lawsuit. We believed the validity of the agreement was a question for the jury. * * * I think this continued until March of this year (1921).” On December 5,1919, the plaintiff began a common-law action against the Port Huron Gas & Electric Company. He obtained a substantial verdict but the judgment entered thereon was reversed by this court, which held that the order of the board approving the contract between the plaintiff and the Mueller Metals Company was, under the law, an award of compensation to plaintiff, and was a bar to his right to a recovery in that case; that it might not be impeached for fraud in that collateral proceeding, but might be impeached in a direct proceeding in equity (217 Mich. 519). As was said by the circuit judge: “It is true an error was made in bringing the action against the Port Huron Gas & Electric Company prior to the rescission of the compensation agreement, and this proceeding resulted in the delay; however, by this proceeding plaintiff has waived no rights nor have the rights or equities of any of the defendants been prejudiced.” We do not think the plaintiff has been guilty of laches or that he has done any other act that would prevent him from recovering the relief to which he is herein clearly entitled. .The decree of the circuit judge is affirmed. Plaintiff will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Wiest, C. J. The 4th day of June, 1920, in mid-afternoon, while plaintiff was driving his automobile across the railroad track of defendant at a street crossing about 100 feet north of the passenger depot in the village of Ellsworth, the engine stalled and the automobile stopped on the railroad track. Plaintiff’s automobile had been parked near the depot and he had just started from there under low speed to make the crossing, and before driving on the track had looked and no train was in sight. When his car stopped on the track he again looked and saw a passenger train coming from the south around a bend over 1,200 feet away. He then glanced to see if the switch was on and found it was and stepped on the self-starter; the engine turned over but would not start the car. The whistle of the train caused him to look in that direction and he saw the train nearing the south end of the depot and coming toward him at a high rate of speed, and he started to get out of his car but it was too late, and the locomotive struck and pushed his car about 150 feet before the train was stopped. In the accident he received serious injuries and he brought this suit to recover damages, claiming that defendant’s servants in charge of the passenger train were guilty of negligence and he was exercising due care. The passenger train was one scheduled to stop at Ellsworth and it appears that at such stop the engine always rested across or beyond the street where plaintiff’s car was stalled. At the close of plaintiff’s proofs defendant requested the court to hold plaintiff guilty of contributory negligence, as a matter of law, in remaining in and trying to start his car after he saw the oncoming train and had opportunity to escape. Defendant relies upon the rule applied in Krouse v. Railway Co., 215 Mich. 139, and Apps v. Walters, 216 Mich. 17. In considering this point we must assume the negligence of defendant arid view plaintiff’s acts in as favorable a light as the evidence warrants. On the part of plaintiff it is claimed he acted as an ordinarily prudent man under the same circumstances would have acted; that he knew the passenger train made the stop, at Ellsworth and his position was such that the train would come to the depot before reaching him; that three small children were in the automobile and it was an act of common prudence on his part to attempt to start the car with the appliance which had worked a few moments before and had never caused him trouble. If we hold with defendant we establish the rule that, when an automobile stalls upon a railroad track, with a passenger, train over 1,200 feet away, scheduled to stop at an intervening depot, with the locomotive at rest at or slightly beyond the point occupied by the stalled automobile, one in charge of the automobile is guilty of contributory negligence if he does not scuttle, instead of making some endeavor to operate his car out of the place of danger. If it was within the range of a finding by the jury that a reasonably prudent man, under like circumstances, would endeavor to start the car, then it is not a question of law. Assuming that plaintiff upon his first view of the oncoming train had time in which to jump from his automobile and to a place of safety, was he, as a matter of law, negligent in not doing so? There is no evidence that plaintiff was guilty of any negligence in getting his automobile on the track. This, however, is of little importance. There was evidence from which the jury could find that plaintiff had a right to assume this train would make its scheduled stop at the depot and in order to do so would slacken its speed. If the speed of the train had been such as to permit its usual stop would plaintiff have had time to leave his automobile when he made the attempt and get to a place of safety? This presented a question of fact for the jury. In the Krouse Case this question was not involved. Plaintiff’s automobile was stalled at about the point the locomotive would come to rest for the depot stop, and everybody knows that in stopping a train the speed is first reduced. But, it is said, plaintiff had no right to assume it was the afternoon passenger train, for it, so far as he knew at the time, might have been a special train. He appeared, however, to have assumed correctly, and he had good ground for so assuming, and we must consider the case as presented. This locomotive went about 150 feet beyond its usual stopping point. We are not informed of the reason for this except by testimony that it came upon plaintiff at a rapid rate of speed. The defendant company offered no proof. We cannot hold, under the evidence, that plaintiff was guilty of contributory negli gence as a matter of law. The jury found he was not guilty of contributory negligence as a matter of fact. The question was properly submitted to the jury. While laying the issues before the jury the trial judge asked counsel for defendant if he had sufficiently covered the point as to the claimed duty of plaintiff at the time of the accident.' In reply counsel stated that the jury should be instructed as to the duty of plaintiff when he saw the train 1,272 feet away. Thereupon the court said to counsel: “State what the duty was in your opinion, without argument, I have endeavored to state what his duty was, you state it and then I will state whether I agree with you or not. “Counsel: I prefer not to do that at this time, your honor, I have fully and completely stated my opinion on that subject to your honor in the absence of the jury and I believe that that subject should be covered by the charge of the court.” The court then proceeded to instruct the jury as follows: “I, at the suggestion of counsel will state, I understand the claim of the defendant to be that immediately upon seeing the train that the plaintiff should have abandoned the car, made no effort to start the car or to proceed further if he was already starting the car with the starter, that he should stop that immediately and get off the car and thereby avoid injury to himself personally. “The defendant claims that, not immediately leaving the car upon first seeing the train that the plaintiff was _ negligent and therefore guilty of contributory negligence and he cannot recover. “Now, I understand this is what the defendant refers to in desiring me to charge- you further. I state that as his position.” Counsel contend that the court thereby overstated the defendant’s claim to its prejudice, and also there was error in asking counsel to restate, in the presence of the jury, a matter fully presented on the motion to direct a verdict and there overruled. If the court overstated the defense, there was opportunity then and there to have correction made and it was the duty of counsel to so advise the court. But, did the court overstate the claim? In his motion for a directed verdict counsel made the claim that: “Under his own testimony he was stalled upon the track before the train came into his view; that under the undisputed evidence it was at least 1,272 feet and probably farther away. That he knew the train was coming, knew he was in a place of danger, and took the chance of trying to start his engine, consuming all the time which elapsed between the time the train first came into his view, not less than 1,272 feet south of the point where he was stalled until the train was within five or six rods of the south end of the station, a distance of over a thousand feet, in an effort to examine his car and start it. That he made no effort to leave the car and save himself or his passengers until the train was within five or six rods of the south end of the station. That his reason for this was because he had confidence that the train would stop short of the crossing where he was stalled. That he had ample time while the train was running from the point where he could first see it to get himself and his ’passengers out and ter a place of safety, and to have pushed the car off the track instead of trying to start it. That if he had gotten out of the car when he saw the train coming and pushed his car a little to one side he would have been absolutely safe. * * * That he consumed so much time in attempting to start his car that he barely got his left leg out of the auto door at the time the train struck the auto.” If plaintiff was not guilty of contributory negligence in trying to start his car, as he claimed, then there was no defense of contributory negligence, and it was not open to defendant to claim plaintiff remained in his automobile attempting to start it until the train was upon him. The only testimony in the case upon this subject was given by plaintiff, and was that he did no more than to look at the switch and step on the starter before attempting to leave the automobile. If the speed of the train was 30 miles an hour it would travel 1,820 feet in 30 seconds. The train was about 1,272 feet away when first discovered by plaintiff and, while the record does not disclose its speed, beyond that, “it appeared to be coming very fast,” and “faster than usual,” it gave plaintiff but a few seconds before it reached him. Defendant was driven, by the undisputed testimony, to rely upon the claim that plaintiff was guilty of contributory negligence in not leaving his automobile at once when he first saw the train coming, and there was no error in the court stating such to be defendant’s claim. We find no reversible error and the judgment is affirmed, with costs to plaintiff. Bird, Sharpe, Moore, and Steere, JJ., concurred with Wiest, C. J. McDonald, J., did not sit.

Sharpe, J. On April 21, 1921, the defendants executed articles of incorporation, pursuant to the provisions of Act No. 232, Pub. Acts 1903 (2 Comp. Laws 1915, § 9017 et seq.). The corporate name assumed was “Majestic Auto Sales Company.” The purpose was to establish and operate garages and storage stations, to wholesale and retail automobiles, motor parts and accessories. The principal place of business was Grand Rapids. The capital stock was fixed at $100,000, of which $44,663 was subscribed; $41,000 was stated to have been paid in in cash and $3,663 in other property. After the articles were signed, and on the same day, the stockholders met and elected a board of directors. By-laws were adopted. The officers were directed to deliver the stock certificates “before the expiration of one year from date.” The board of directors at once met and elected officers. It was the duty of the president under section 9 of the act to cause the articles of association to be recorded in the office of the secretary of State and the county clerk before the corporation should commence business. This was not done. The articles were never filed. They had been left with the attorneys who prepared them. Mr. Nelson, who was elected president, was not called as a witness. Mr. Wilcox, the vice-president, was sworn. He testified that he was out of the city for some time after the articles were signed; that after his return he attended several meetings of the board of directors; that in August he discovered that the articles had not been filed and, with the president, consulted an attorney about it. In the meantime, the general corporation act of 1921 (Áet No. 84 [Comp. Laws Supp, 1922, § 9053 (1) et seq.l) had been enacted. It repealed Act No. 232. While it does not appear in proof, it is apparent that the articles executed could not then be filed. Mr. Wilcox testified when questioned concerning an advertisement of the defendant company appearing iñ a paper about the latter part of' August: “It was about the time we started the second time to file incorporation paper's or perhaps a couple of weeks later that I learned that the company was in financial straits.” A receiver for the company was subsequently appointed. Julius Tisch, plaintiff’s credit manager, testified that a request of the defendant company to his company for credit was referred to him, He asked for a report on the financial standing of the company from R. G. Dun & Co. This report, dated June 2, 1921, stated: “This business was organized the first part of the present year, and incorporation papers were filed on March 4, 1921, but on present date the papers have not been returned.” Plaintiff extended credit to the amount of $446.27. It now brings suit against the defendants as copartners to recover this amount. The case was tried before the court without a jury. The findings filed are ■in substance the facts as stated. The trial court concluded as matter of law that the effort made to incorporate resulted “in the formation of a de facto corporationthat the credit was extended to the corporation and plaintiff could not recover against the defendants as copartners. It is insisted that the credit was extended' to defendants as copartners. Mr. Tisch was asked: “Q. To whom did you give credit for the $446.27 account here, Mr. Tisch?” and answered: aA. My understanding was that it was to the individuals composing the organization.” ■ This answer cannot well be taken to establish the fact. The request for credit was from the defendant company. A report on the financial condition of the company was asked for and furnished. N,o such request would have been made as to the defendants personally as several of them were men of large means. ■The defendants were not, and never had been, engaged in business as copartners. The law is well settled that when parties associate .themselves together and conduct a business for profit under a name assumed by them for that purpose they are liable as partners for the debts incurred. But when an attempt has been made to organize a corporation and there has been a sufficient' compliance with the law to constitute a corporation de facto, and the credit is extended to the corporation, there is no individual or partnership liability on the part of those signing the articles of association. The question presented is, Was the defendant, under the facts stated, a de facto corporation at the time the plaintiff extended the credit? Plaintiff’s claim, that it was not, is based on the language of the statute requiring the filing of the articles before the corpora tion “shall commence business.” The requirements of the statute as conditions precedent to organization had been fully complied with. The corporation existed. Its stockholders and directors met and perfected its organization by electing officers. It thus became a corporation de facto. The neglect of the president to file the articles did not change its status. The purpose of filing is to bring the corporation under State control. For a failure to do so, the State alone may complain. The failure to file in no way affected the rights of the plaintiff to enforce payment of its debt from the assets of the corporation. The credit was extended to the corporation. It had a legal existence which it is estopped from denying. Our decisions and the great weight of authority are In harmony with this holding. Mr. Hamilton, in his Michigan Corporation Code (3d Ed.), § 83, says: “When incorporators have proceeded in good faith, under a valid statute, for an authorized purpose, and have executed and acknowledged articles of association pursuant to that purpose, a corporation de facto instantly comes into being. Eaton v. Walker, 76 Mich. 579 (1889); Newcomb-Endicott Co. v. Fee, 167 Mich. 574, 580 (1911). A de facto corporation is an actual corporation. As to all the world,, except the State, it enjoys the status and powers of a de jure corporation, 1 Thomp. Corp., § 225, p. 240.” In People v. Carter, 122 Mich. 668, the defendant interposed as a defense to a charge of embezzlement from a corporation the fact that its articles had not been filed. It was incorporated under Act No. 13, Pub. Acts 1897 (2 Comp. Laws 1915, § 9806 et seq.). This act provided that the articles— “shall be filed * * * and thereupon the persons who shall have signed said articles’of association, their associates and successors, shall be a body corporate,” etc. It was held that the association was a corporation de facto, and defendant’s conviction was affirmed. In Newcomb-Endicott Co. v. Fee, 167 Mich. 574, a similar question was presented. It was there claimed that there could be no corporate existence until the articles were filed. Mr. Justice Stone, speaking for the court, said: “By the act itself it is provided that the president shall cause the articles of association to be recorded. The statute therefore contemplates the complete organization of the association and the election of officers before the recording of the articles, and we think that the better doctrine is that the State only can interfere in a case such as the one with which we are dealing.” On page 581 he quotes with approval from Whitney v. Wyman, 101 U. S. 392, where the same question was considered: “The restriction imposed by the statute is a simple inhibition. It did not declare that what was done should be void, nor was any penalty prescribed. No one but the State could object. The contract is valid as to the plaintiff, and he had no right to raise the question of its invalidity.” Other authorities cited and quoted will be found instructive. See, also, Staver & Abbott Manfg. Co. v. Blake, 111 Mich. 282 (38 L. R. A. 798). The general rule is thus stated in 14 C. J. p. 120: “Provisions in general incorporation laws, as well as in special chapters, prescribing conditions precedent to corporate existence, must be distinguished from provisions merely prescribing conditions to be complied with after acquiring corporate existence. Noncompliance with such a condition subsequent does not affect the existence of the corporation, although it may be ground for a proceeding by the State to forfeit the charter. Conditions precedent to the formation of a corporation must be distinguished from conditions precedent to the right to engage in business after the corporation has been formed. . The latter are conditions subsequent, a noncompliance with which, while it may give the State a right to main tain proceedings to forfeit the charter, does not, in the absence of such proceedings, in any way affect the legal existence of the corporation.” The plaintiff had no right of action against the defendants as copartners. The judgment is affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

Sharpe, J. Plaintiff alighted from a north-bound passenger car on Hamilton avenue in the city of Detroit at the usual stopping place just before it reached Atkinson avenue. Her intention was to cross to the west side of the street. Sh¿ was struck and severely injured by a car on the west track, going southward. She had verdict and judgment. We consider the assignments of error discussed by counsel. Plaintiff’s Contributory Negligence. In determining this question, the evidence must be considered in the light most favorable to plaintiff. She testified that a car was following quite closely from the south; that when she alighted she waited for the car on which she had ridden to pull out; that when it had gone about 75 feet she looked to the motorman on the approaching car, then about 25 feet distant and moving slowly; that he motioned for her to cross; that she then crossed the track on the east side of the street and when between the two tracks she— “looked north and saw a car coming down the line at a terrific speed. It was between 100 and 125 feet away when I first saw it. I thought sure just as soon as I would stop there and they would see me that they —and put up my hands, to see that I was in danger there, both coming with that speed, I thought sure they would stop, but they didn’t. * * * I hesitated for about two seconds, thinking that they would stop. I put up my hand. I did not say ‘stop’ or anything, I just got excited and I thought they would ■stop by my signal. I was facing west at that time. The motorman did not slack up at all; he did not slow down at all; had he slowed' down I would have made it with comfort. * * * I turned right back facing the east. * * * I thought I could make it the other way, but I could not. * * * The car, the north-bound car was still just moving, I should judge— I should'think it was just about coming to a stop there.” On redirect-examination she was asked why she “did not go across in front of his car that was coming down.” She answered: “A.. Because it was coming at such a terrible speed, that I was afraid — I was not afraid at the time of crossing, only I thought I would wait and give him a chance to slow down a little bit, for I knew he had time to slow down. “Q. Did you expect that he would slow down as you stood there? “A. Yes, sir, I did; that is why I put my hand out, thinking he would. “Q. What was your best judgment at that 'time as to what to do? “A. To stop and wait for him to slow down.” She was between the tracks when the south-bound car struck her. If the plaintiff waited until the car from which she had alighted had gone on a distance of '75 feet or more and then treated the apparent signal of the motorman on the car approaching from the south as an indication that she might safely cross, it cannot be said as a matter of law that she was guilty of negligence in proceeding to do so. She then found herself on the narrow strip between the two tracks, a place where-a man might perhaps stand in safety but one in' which we think no prudent person would willingly do so. Cars were approaching from both directions. Did she act with prudence? It is urged that she could have passed in front of the car approaching from the north or returned to the place from which she started, with safety. The following from Fehnrich v. Railroad Co., 87 Mich. 606, 612, is peculiarly applicable to her situation: “One put suddenly in peril is not required imperatively to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril.” . As was said in Mercer v. Railroad Co., 151 Mich. 566, 568, the plaintiff was not “negligent if she chose the alternative which proved to be the more dangerous.” See, also, Weitzel v. Railway, 186 Mich. 7; 29 Cyc. pp. 521, 641, and cases cited. There was no error in submitting this question to the jury. Defendant’s Negligence. Street cars have no monopoly of the city streets. Pedestrians are still entitled to use them. The speed at which such cars are permitted to run, their weight, and the fact that they cannot be deflected from their course, render them peculiarly dangerous, and pedestrians are chargeable with knowledge that they are so. The conduct of the motorman, when charged with negligence in the operation of his car, must also be viewed with such facts in mind. When meeting a car which had just started up after stopping at an intersecting street corner, and from which passengers had probably alighted, and meeting another close at hand, a motorman should be watchful and vigilant. The situation as he can observe it must determine the extent to which he should have his car under control. He had the means at hand to do so. Plaintiff’s witnesses testified that the car went more than 150 feet after striking her before it was stopped. The motorman should have seen her as soon as she stepped on the space between the two tracks. He should also have seen the car approaching from the south, then almost beside her. Exercising reasonable judgment, he could but have determined that she was in a position of peril. Did he then do what an ordinarily prudent person in charge of such a car, familiar with the means at hand for its control, would reasonably do? These questions were submitted to the jury under instructions of which no complaint is made. We think the court committed no error in doing so. See Prince v. Railway, 192 Mich. 194, and cases cited. Other Errors. In concluding his oral argument, defendant’s counsel stated that a new trial was not asked for. This renders it unnecessary for us to consider the errors assigned on the instruction as to after-discovered negligence, or the admission or rejection of testimony, or the refusal of defendant’s requests to charge, other than that to direct a verdict (already disposed of), because a finding that there was error in any of such respects could but result in a new trial. Excessive Verdict. The jury found for plaintiff in the sum of $15,000. As a condition precedent to the denial of a new trial, the court required plaintiff to remit $3,000. This was done. Defendant insists that it is still excessive. Plaintiff described her injuries as follows: “I came to my senses about 9 o’clock at night at Providence hospital. I was very, very sick. I was in bed, my head was bandaged up and I felt my tooth was gone. I had this double break in my leg, in my ankle. . There is about two inches shortening of the leg; they have attempted to straighten my leg five different times. Two operations were only performed to take the bones out, the loose bones that were broken in there and the others were to straighten it. The ankle is stiff and does not work at all. This accident happened about 5:30 p. m. I had a big gash in my head. I was in about the same condition for a week then erysipelas broke out from the wound in my head. * * * They were going to take me to Herman Keifer but it was not open so they took me home and we had a trained nurse. I remained at home about 10 weeks and was under medical treatment during that time. Dr. Hanna was my physician. My leg was set before I left the hospital but it did not unite. Dr. Hickey took x-ray pictures at Harper hospital; Dr. Chene took them at Providence. I was only in Providence eight days when I was removed home. There was one operation performed at home by Dr. Hanna.' After the end of 10 weeks my temperature went down and I was better only my leg would not unite. The part that was broken was a piece broke out just above the ankle, it involved the ankle joint. , I had very much pain and suffering from sleeplessness. They gave me a hypodermic for about three weeks and they thought I would be a dope fiend from taking it, so they stopped on that and I .just nearly went crazy. Dr. Hanna was going away on his vacation, and he put me in good hands of Dr. C. D. Brooks, the surgeon at Harper hospital. I stayed there about 4 weeks; I went there the latter part of August. Dr. Brooks performed one operation there. After the end of four weeks at Harper I went home. My head was pretty well healed up by that time. I remained home until after Christmas. I went to friends of mine and stayed with them, .Mrs. Hodde. I remained there about six weeks. From the time the accident occurred up to the present time i never have succeeded in getting the leg or foot straightened around to normal condition. It was about a year after the "accident that I first endeavored to do any work nursing. Once in a while I would go out. Since the accident occurred and up to the present time I have not worked the same as I used to. It was about a year after the accident before I could do anything. I have earned about $150 altogether since the accident. Before I earned between $30 and $35 a week. The expenses were as follows: Dr. Brooks, $100; Dr. Hanna, $250; $10 for the cast; $10 for the x-ray at Harper hospital; Dr. Panzner, $5; $30 for x-ray; $40, Harper hospital; $21, Harper hospital; hospital, $22.75; Harper hospital, $25; $19, Providence hospital; trained nurse, $340; another x-ray, Dr. Hickey, $30; drugs, $100. I am not under any medical treatment at present. I had an x-ray taken this week by Dr. Hickey which cost $10.” Dr. Brooks and Dr. Dewitt, two well-known Detroit surgeons, testified the deformity in her limb, except that due to its being shorter than before, could probably be remedied by another operation, which would involve the chiseling or sawing of a callous which unites the two bones and placing them in a correct position. The cost of such an operation would be about $200, and it would be necessary for her to remain in a hospital for a considerable time. That plaintiff’s sufferings were intense and lasted for a long period of time admits of no doubt. While the operation referred to would probably correct the posi tion her foot is now in, the deformity due to her leg being shortened is permanent. She was 32 years of age at the time of the injury, and unmarried. She must go.through life deformed. Such condition cannot but be humiliating to her and may, to some extent at least, interfere with her securing employment at nursing, for which she had fitted herself. The trial court saw her condition, heard the testimony of the surgeons, listened to the story of her suffering, and was able to exercise a much more dependable judgment than we can as to the amount which will reasonably compensate her for the damages she has sustained due to her injury. We are loath, under the record as we read it, to interfere with his determination. Fishleigh v. Railway, 205 Mich. 145; Wilson v. Railway, 208 Mich. 411; Kurtz v. Railway, 221 Mich. 82: Clumfoot v. St. Clair Tunnel Co., 221 Mich. 113. The judgment is affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steere, JJ., concurred.

Clark, J. On certiorari defendant seeks to set aside an award of the department of labor and industry, also styled the commission. Plaintiff was injured on December 16,1920, while working in an iron mine of defendant. He suffered an inguinal hernia for which he was later operated. Under agreement he was paid maximum compensation for 21% weeks. Then he signed settlement receipt which was filed with the commission. Later he petitioned for further compensation. At the hearing on arbitration, deputy commissioner Beattie sitting, after taking testimony and after a full hearing, plaintiff was found not to be entitled to further compensation and his petition, on September 14, 1921, was denied “without prejudice.” On review before the commission the decision was affirmed. On April 4, 1922, plaintiff again petitioned for further compensation. A hearing on arbitration was .had, deputy commissioner Derham sitting. Plaintiff was awarded maximum compensation to begin on September 14, 1921, the date of the former decision by Mr. Beattie. On review before the commission the award was affirmed except it was made to begin on April 4, 1922, instead of September 14, 1921. A finding of facts by the commission, usually very helpful in these cases, is not to be found in the record. We must search the record to ascertain whether there is any evidence of change in the physical condition of the plaintiff since September 14, 1921, the date of the denial of his former petition. For, according to a rule well established, the case may not be re-opened and additional compensation awarded, after such decision that the plaintiff was not entitled to compensation, unless there is evidence that plaintiff’s physical condition is worse, as a result of his accidental personal injury, than it was at the time of the former hearing. Burley v. Central Paper Co., 221 Mich. 595. If the evidence indicates no such change in condition such former decision is a bar to plaintiff’s petition. Another rule, equally well established, is that the commission has no power to vacate an arbitration, to order another arbitration, or to grant a rehearing. Fritz v. Rudy Furnace Co., 218 Mich. 324. None of the rules aforesaid can be avoided by tacking on to a decision the words “without prejudice.” If the commission had the power to add such words to the former decision the use of the words left the whole matter open to hearing as much as if the former petition had never been filed and determined. McIntyre v. McIntyre, 205 Mich. 496. But the commission is without such power. Its powers are fixed by statute. A decision on arbitration or by the commission on review must be positive and unqualified so that a judg ment may be rendered upon it, on application of either party and without notice, in the circuit court as provided by 2 Comp. Laws 1915, § 5466. The words “without prejudice” will be treated here as surplus-age. Counsel for plaintiff stresses here as he did at the last hearing that plaintiff has developed neurasthenia. We think this condition was involved in the first hearing though not given the emphasis accorded it later. But we cannot say that the evidence is not capable of an inference that the disorder is worse than it was at the time of the former hearing. And neurasthenia caused by or attributable to the accident is a personal injury- under the act. See 10 N. C. C. A. 1041; 3 N. C. C. A. 225-229. A new matter was introduced at the second hearing by the testimony of a physician of examinations made on -March 14, 1922, and on June 23, 1922. He said of plaintiff: “I find a man of small stature, well developed physically, but walking with a slight halting gait as if he did not have good use of the right leg. * * * Breathing is mostly abdominal and chest excursion is very small. Abdomen hypersensitive all over, most on the right side. * * * He appears to have pain when body is erect. This is entirely relieved by bending forward. * * * He complains of a pulling sensation in the scar on walking or when body is bent backwards. He has a large scar in the right inguinal region marking the site of the operation. It is my opinion that the symptoms complained of are due to the adhesion of the omentum and possibly some of the internal organs to the inside of the scar and that he can be relieved by re-opening the abdomen and releasing these adhesions.” Of his physical condition as regards employment plaintiff testified at the last hearing: “Q. You claim that at the time of the hearing which was held here in this room last September you were in the same condition in which you are'now; is that right? “A. Since my injury, yes. “Q. Do you remember the hearing we had here last fall? “A. Yes. “Q. You claim that you are now in the same condition you were, then? “A. I -have been in the .same condition since my injury. “Q. You are no better than you were last September when we had the hearing here? “A. No, sir, I am no better. “Q. And no worse? “A. I am growing worse. “Q. Are you worse than you were when you had your examination here last September? “A. Yes, sir. “Q. Do you suffer more pain than at the time of the last hearing? “A. Yes, sir. * * * “Q. Have you done any work at all since May 16, 1921? “A. Not a thing. “Q. Why haven’t you? “A. I am not able to.” The weight to be given plaintiff’s testimony, though contradictory, is not for this court but for the trier of the facts, the commission. See Goonen v. Railroad Co., 218 Mich. 502. Because of the evidence reviewed, though the evidence as a whole preponderates strongly against it, we may not say that the award has no evidence to support it, and therefore, agreeable to 2 Comp. Laws 1915, § 5465, it must be and is affirmed. Wiest, C. J., and Fellows, McDonald, Bird, ■ Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. By agreement of counsel the four above entitled actions, separately begun on May 1, 1919, were tried together before the circuit court without a jury mainly on stipulated facts, resulting in judgments for plaintiff. Defendants have brought them to this court for review on separate writs but like assignments of error. They have been argued and submitted together by consent of counsel, it being conceded that they involve like controlling facts and questions of law. Defendants are coal dealers located and doing business in the city of Detroit. The New York Central Railroad Company brought these actions against them to recover re-consignment charges of $2 for each car on shipments of coal and other freight transported in car load lots over its line from points outside of this State during the years 1913, 1914, and 1915, originally consigned to defendants at Detroit, Michigan, and, on their request after arrival of the car in the Detroit switching district, re-consigned, switched and placed on their various private sidetracks within the Detroit switching district. Plaintiff claims and defendants deny that this re-consignment charge of $2 per car was “a proper, lawful and necessary charge under the tariffs in force” during those three years. To simplify the facts and issues counsel for the respective parties filed a detailed stipulation of agreed facts. ■ The only testimony taken in the case was that of a witness named Connell, plaintiff’s chief car clerk, who testified, against defendants’ objection, that he had'charge of moving all its in-bound freight, including the cars in question, and the re-consignment charges were assessed by the car department under his supervision according to the tariff in force at that time with which he was familiar, and he was also familiar with the meaning of terms used in handling and switching cars as understood by railroad men. He was then asked and answered as follows: “Q. Will you state whether there is any difference in the meaning as used in connection with the handling of cars, delivery shipments, and so forth, between the carrier and the delivering railroad? “A. Yes, sir. * * * “Q. Well, as • those words are used in railroad matters. In this tariff as well as by railroad men generally; by people qualified to and who know the meaning usually attributed to those words in connection with railroad matters? * * * “A. The difference between the carrier and the delivery line is the carrier is the road that participates in the freight revenue of that car. The delivery line is the road on whose rails the car is delivered. By delivery of the shipment I mean the one who takes it in and unloads it. I mean that it is the railroad on whose line the car is unloaded. With the cars in question in this case the carrier was the New York Central railroad. No other carrier in Detroit partici pated in the revenue. * * * In connection with the cars which are in question in this case I presented a statement in detail covering these charges and made a demand on the defendant in 1916.” To this line of inquiry counsel for defendants timely objected on the following grounds: “Those questions are to be' determined by the court from an inspection of the tariff as published rather than from the opinion of some clerk, who said that he is a car clerk; who does not qualify as a tariff expert, or come in here to aid the court with the interpretation of technical words used, other than their common meaning.” In reply to a question by opposing counsel, supplemented by one.from the court, plaintiffs counsel said the object of calling this witness was “to explain how those terms were regarded by men in railroad affairs and attempting to explain the words in the tariff.” The tariff referred to, under the terms of which plaintiff claims the right to recover, reads, as follows: “Rule 9 of L. S. & M. S. Tariff I. C. C. A.-2662, as amended by Supplement No. 26, in force from Jan. 11, 1913, to July 2, 1916, as to general carload freight, and Rule 4 of L. S. & M. S. Tariff I. C. C. A-2906, in force from Jan. 11, 1913, to January 19, 1915, as to coal, coke and iron ore; Re-consignment op Car Load Shipments at Detroit, Michigan. “Detroit Switching District. On car load traffic consigned for delivery within the switching limits of the City of Detroit, Michigan (switching limits extend from Brush Street Station to River Rouge Bridge, south of Delray), the billing from point of origin must show name of consignee and specific delivery (See Note 1) required. “A re-consignment charge of $2 per car will be assessed for any change in billing as originally made, affecting either consignee, destination or delivery, except when re-consigning orders are received by the agent of the L. S. & M. S. Ry. prior to arrival of cars in Detroit Switching District. Upon written request the L. S. & M. S. Ry. will notify consignees at Detroit, Michigan, of the arrival of cars on rails of the L. S. & M. S. Ry. at Adrian, Michigan, or Toledo, Ohio. “Note 1 — By ‘specific delivery’ is meant the private siding or team track of delivering railroad required. The specific private siding must be named if consignee has more than one, it being understood that as regards team track deliveries, roads do not obligate themselves to place cars on any specific track of a connecting carrier within switching limits of Detroit, Michigan, except as specifically provided for in the switching tariffs of delivering carriers on file with the Interstate Commerce Commission or the Michigan Railroad Commission.” The Lake Shore & Michigan Southern Railway is a part of the New York Central system and it is conceded the latter has succeeded to all the former’s “rights and responsibilities in connection with the movement and transportation of the cars herein involved.” When the parties rested counsel for defendant requested findings of fact and conclusions of law. The court thereafter filed an opinion which briefly states the nature of the actions, that the cases were heard together by agreement of counsel with the main facts stipulated and “certain testimony taken as to the meaning of ‘delivering railroad’ and time when demand for payment was made upon defendants,” that no written requests for findings were filed or points of law presented under Circuit Court Rule No. 45, with conclusions upon the legal questions involved, as follows: “The court finds, as a matter of law, that the giving of the so-called ‘passing notice’ as to the arrival of cars at Adrian, Michigan, or Toledo, Ohio, was not a condition precedent to the valid assessment of the reconsigning charges provided in the tariff; that all reconsigning charges shown by the stipulated facts to have accrued prior to May 1, 1913, are barred by the statute of limitations; that the charges shown by the stipulation to have accrued on or subsequent to that date are valid charges under the tariff, and plaintiff is entitled in these actions to recover the respective amounts thereof, together with interest thereon, at the legal rate, from the date of demand made on defendants, which the testimony shows occurred in all cases prior to January 1, 1917. It follows, therefore, that judgment may be entered in favor of the plaintiff and against defendants, respectively, for the charges shown by the stipulated facts to have accrued on or subsequent to May 1, 1913, together with interest thereon,, at the legal rate, from January 1, 1917.” Defendants made a motion for a new trial which was denied. Plaintiff’s counsel urge the preliminary objection in their brief that, as no findings of fact were made by the court nor written requests for special findings or points of law presented to the court as upon requests to charge, and no amendments proposed to the findings made or exceptions taken in that connection, there is nothing before the court for consideration under Circuit Court Rule No. 45, as interpreted in various cases cited and the decision of the lower court should therefore stand affirmed. While that situation at least eliminates most questions which might be raised under strict compliance with the rule, we have here a full stipulation of undisputed facts which the trial court apparently assumed as a proper basis for his written conclusions of law, and those facts as stipulated present a single controlling question of law. Counsel for defendants say in their brief that aside from error assigned on the admission of testimony given by plaintiff’s witness, Connell, “the real question in the case relates to a proper construction of the tariff; that is to say, the remaining assignments of error are all covered and can be disposed of by a determination of that legal question.” Under such, a situation, with the facts as stipulated presenting a single controlling legal question, it is proper for the court to consider “the contention made in substance and effect in the assignments of error and argued in the briefs, whether they support the conclusion of law — the judgment.” Oscar Daniels Co. v. City of Sault Ste. Marie, 208 Mich. 363. It appears by the stipulation that all the cars under consideration were moved in interstate commerce over plaintiff’s line into Detroit, their point of destination, and in their delivery were subject to the tariff quoted; The number of cars re-consigned by plaintiff for each of the defendants during the years in question under the tariff rule is stipulated, and it is conceded by defendants’ counsel that if the judgment of the trial court is well founded as a matter of law it should be affirmed without deduction. All these cars as originally consigned were “billed flat” to their destination, or to their respective consignees at Detroit, Mich., without further specifications as to delivery, requiring re-consignments to switch and transfer them to the various private sidings within the switching limits of Detroit. The Calverts owned and operated private sidetracks at Maybury avenue on the New York Central; at May-bury avenue on the Michigan Central; at Jos. Campan avenue on the Michigan Central; at the River Rouge yard on the Michigan Central; and at Kercheval avenue on the Michigan Central belt. Pittmans & Dean Company had sidetracks at Woodward avenue on the New York Central; at Humboldt avenue on the Grand Trunk; at Rivard street on the Grand Trunk; at Beaubien street on the Michigan Central; in Highland Park on the Detroit Terminal west. J. & T. Hurley, Inc., at Grand River avenue on the New York Central; at 14th and 15th streets on the New York Central; at Gratiot, avenue on the Grand Trunk; and at Kercheval avenue on the Detroit Terminal east. J. S. Lorimer’s Sons owned no sidetracks. Soon after this tariff went into effect, January 11, 1913, a circular letter was received from the agent of the Lake Shore & Michigan Southern Railway Company by defendants calling attention to and quoting Rule No. 9, saying in part: “Owing to the arrival of many cars of car load freight with no specific delivery shown on billing, due partially to the unfamiliarity with the above quoted tariff, thereby making it compulsory for us to charge $2 per car for re-consigning, we would thank you to acknowledge receipt of this letter and state if you wish to be notified upon arrival of cars at Toledo, Ohio, and Adrian, Michigan.” In response defendants sent requests to be notified, of arrival of cars at Toledo and Adrian as suggested, but no such so-called “passing notice” was given by plaintiff as to any of these cars because, as plaintiff claims and the interstate commerce commission found, it proved to be impossible under existing conditions to do so in time for defendants to send back a re-consigning order before the cars would arrive at their destination. The movement and handling of the cars after their arrival in Detroit before they were finally placed and delivered for unloading is stated in the stipulation as follows: “8. A train of cars carded at Toledo for Detroit is brought into the plaintiff’s terminal yard at Detroit. Each car on the train is covered by a waybill made out by the agent at the point of origin (see Exhibit 1). Upon the arrival of the train the conductor brings into the yard office the waybills for the entire train, one for each car. A clerk in the yard office, called the car checker, takes these waybills and makes up a train sheet (Exhibit 2) for the entire train. This train sheet shows, on the top lines, the name of the terminal, the date, the name of the conductor, and time of arrival. In the body of the train sheet is shown, as to each car, the following data: Car initial and number, point of origin, contents, weight, consignee, and, where it appears by the waybill or from advance orders given by consignee, the delivery. “9. From this train sheet the car checker then makes out a card (Exhibit 3) for each car. Each card bears a number in bold red type which signifies to the switching crew that the car is to be switched to the track corresponding to that number. For example, to track No. 7 are switched cars for Grand Trunk delivery, that is, sidetracks on the Grand Trunk. Track No. 3 is for Detroit Terminal deliveries ; No. 6 is for Michigan Central deliveries; No. 10 is for Pere Marquette deliveries; No. 2 is for Russell street delivery of the New York| Central; No. 13 is for ‘Hold’ track. On the three bottom lines of the cards is entered specific information, where this is shown by the train sheet, as to the particular consignee, railroad, and track to which the car is to be delivered. But where the waybill and train sheet do not show such specific delivery but only the name of the consignees, the card is marked ‘Hold/ and is numbered 13, and the car in such case is shunted by the switching crew onto the ‘Hold’ track, to be held temporarily for orders from consignee as to specific delivery desired. This has to be done in every case where the waybill does not show specific dielivery and the railroad office has not a standing or advance order from the consignee as to where the particular car is to be delivered. These latter orders are the so-called ‘re-consigning orders’ mentioned in the second paragraph of the rule set forth in paragraph 4 of this stipulation, as received by the railway agent prior to arrival of cars in the Detroit switching district, for compliance with _ which no charge is imposed. _ “10. The consignee of each of the cars carded to the ‘Hold’ track is then notified by telephone and by post-card of their arrival, and is asked to give disposition. He informs the railroad office where the car is to be delivered, that is, the specific sidetrack on the New York Central or some other railroad. From this information the car checker changes the billing on the car and replaces the number 13 card with new cards showing the specific delivery requested and also the new consignee, if one is indicated by the original consignee. These ‘Hold’ cars are then distributed by the switching crews to the various other tracks, as described above, for immediate switching and delivery to the specific sidetrack indicated by the new card and billing. “11. Each of the cars involved in this case and included in the table annexed hereto was a ‘Hold’ car, and was billed, handled, and re-consigned in the manner just described. It was these operations and transactions which plaintiff claims invoked the rules above quoted and a re-consigning charge of two dollars ($2.00) on each car. “12. The operations described above and the ultimate delivery were all within the switching limits of Detroit as described in the tariff rules. * * * “17. Subject to the facts set forth in this stipulation the conditions in the years 1913-1915 affecting the movement and re-consigning of the cars involved herein were the same as those described in the opinions and reports of the interstate commerce commission in the Detroit Re-consigning Case on the original and supplemental hearing reported in 37 I. C. C. 274 and 46 I. C. C. 231. The said opinions and reports, together with the orders in that case, are herein considered in evidence. It is not admitted, however, that any of the parties hereto is concluded by the said reports and findings of the interstate commerce commission in the Detroit Re-consigning Case as to other facts and matters contained in this stipulation and not appearing in said reports and findings of the interstate commerce commission in the Detroit Reconsigning Case. “18. The defendants were all members of the Detroit Coal Exchange at the time it filed its petition to intervene in the Detroit Re-consigning Case, before the interstate commerce commission, hereinbefore referred to, and the Detroit Coal Exchange was, a party to that proceeding with their consent and approval.” The question of re-consignment of car loads of coal at the Detroit terminal has been before the, interstate commerce commission on at least four different oc casions. In Detroit Traffic Ass’n v. Railway Co., 21 I. C. C. 257, plaintiff filed a petition in 1910 challenging the validity of a charge by defendant of $3 per car for re-consignment of coal shipped from points in Ohio and elsewhere. In that case Commissioner Lane took pains to go quite fully into explanation and discussion of the subject of re-consignment in railway transportation. The opinion recognized that as a rule re-consignment in transit is usually allowed without additional charge, but re-consignment at terminal, on the other hand, usually involves a special charge. Reasons giving rise to the distinction are stated, and it is noted that “in handling of coal the greatest .difficulty to be overcome arises from the irregularity of demand.” After full discussion of conditions shown at the Detroit terminal compared with other points it was held the amount exacted was excessive, but $2 per car was not unreasonable and such charge was permissible. In the Detroit Re-consigning Case, 25 I. C. C. 392, submitted December 6, 1912, the subject was again considered on a showing of congested conditions at the Detroit terminal, charged by the carriers into Detroit to inefficient operation of their connecting carriers beyond Toledo, and it was there held that the re-consignment charge of $2 per car was not unreasonable considered by itself, but directed that under the facts shown the carrier should give notice to the consignee of the arrival of the coal cars on their respective tracks at Toledo, and state in their tariffs that said charge would not be imposed if a re-consigning order was given by the consignee before the car reached Detroit, the opinion concluding, “We shall, however, hold the whole record before us for such further orders in the premises as experience during the coming winter, under the plan here proposed, may require.” This was followed by the tariff of January 11, 1913, involved here, which was in effect during the period covered by this controversy and as to' which it is stipulated that, subject to the facts stated in the stipulation, the conditions affecting car movement and re-consignment were the same as those described in the opinions appearing in the 37th and 46th I. C. C. reports, wherein it is squarely held that the provisions of this tariff did not make the imposition of the $2 reconsigning charge conditional upon the terminal carrier having first given the consignee at Detroit notice that the car had arrived at Toledo. In those cases, entitled Detroit Coal Co. v. Railroad Co., the commission had before it substantially the issue involved here, and by the stipulation the opinions, reports and orders they contain are evidence in this case. They cover the original and supplemental hearing on plaintiff’s application for reparation where re-consignment charges were paid and authority not to pay the charge when payment had not been made by the consignee. It appears from the report, or opinion, in the 37th I. C. C. 274, that it was in a sense a rehearing, or further hearing, of the case reported in the 25th I. C. C. 392. It was asked for in the fall of 1914 by defendant and other interested carriers, who alleged that the practice had proved unsatisfactory to both shippers and carriers and had worked out unequally and inequitably between receivers of coal in car load lots. In the report of this further hearing (37 I. C. C. 274) it is stated in part that— “early during the hearing it developed that the situation at Detroit had materially changed since our report in the Detroit Re-consigning Case, supra, was' handed down. * * * The condition of extreme congestion in the terminals proper such as prevailed in the winter of 1911-12 being reflected back along the line, gave ample time for the carriers to issue the notice and for the consignees to place their re-consigning order. Improved conditions at Detroit were likewise reflected back along the line to Toledo, and transportation from that point to Detroit soon came to require less time than during the period of congestion. * * * The clerical work necessary, the time consumed in relaying the information from one office to another, and other incidents attending the preparation and service of passing notices often rendered it impossible to deliver the notice to the consignees at Detroit before the arrival of the car at that point. Moreover, the offices of the consignees were ordinarily closed from 5 p. m. until 9 a. m. of the next day, and no notice could be delivered between these hours or on Sundays or holidays. * * * Had the giving of the passing notice been a condition precedent, which we have held it was not, to the assessment of a reconsigning charge, it clearly appears that it would have worked inequitably and would not have been free from discriminatory results. We are of the opinion that the failure of the carriers to make the assessment of the $2 re-consigning charge conditional upon the giving of passing notice has not rendered such a charge unreasonable. * * * These charges, we have held, were legal under the provisions of the tariff and, being not unreasonable, the law requires that they should be paid. The complaint will be dismissed.” ' In 46 I. C. C. 231, where the subject is again reviewed, it was said of the conditional provision in the tariff relative to notice: “The more substantial basis for the proposal was a practical and earnest effort on the part of the carriers to keep their terminals clear and to relieve an unprecedented congestion at Detroit caused chiefly by the great quantities of coal held there for re-consignment * * * How it would work out was a question that could be determined only by experience; * * * But, as should be carefully noted, in considering the reasonableness of the proposed charge itself, we said (id p. 395): ‘“On the record we find * * * that the proposed charge Is not unreasonable when considered by itself and wholly apart from the conditions that have occasioned the congestion at Detroit, or in a material measure contributed to it.’ “The success of the plan of giving the passing notice from Toledo being more or less uncertain, we purposely refrained from entering the order, feeling that no definite requirements under an order should be imposed upon the carriers, at least until we had been informed more fully as to the outcome of what was a measure of expediency in a purely experimental stage. * * * It is true that language is used in that part of the report that is not as clear as_ it should have been, but a careful reading of the entire report, we think, will fail to disclose any modification of the definite finding there made, namely, that the $2 charge, when considered by itself and wholly apart from the condition that occasioned the congestion was a reasonable charge for the service. Any other finding would have been wholly inconsistent with the facts shown of record and also with the conclusions and findings in Detroit Traffic Ass’n v. Railway Co., 21 I. C. C. 257. * * * We * * * again conclude and find that the charge in question was reasonable and, as published in the tariff of the respondents, was not conditioned upon the giving by the carriers to the consignees of a passing notice from Toledo.” While it is the general rule, as defendants’ counsel point out, that plain tariff provisions cannot be altered by custom, intention of the framers or understanding of the parties, yet, where the actual meaning of a provision is open to construction in the connection used and claimed to be contrary to that adopted in administrative adjudication by the commission, the existing facts and circumstances attending its adoption and the practical construction given it by the officers whose duty it is to administer the law under which it was adopted are competent to consider. In Great Northern R. Co. v. Merchants Elevator Co., U. S. Adv. Ops. 1921-22, p. 551 (42 Sup. Ct. 477), where the question of a condition in a tariff was involved, the court held in substance that while without resort to the commission construction of a tariff could be raised in a State court, yet whether a rate was discriminatory, unreasonable or the words used had a special technical meaning must be first determined by the commission. In this case the record discloses that in the exercise of its administrative functions the. commission determined under the existing facts as it found them during the period covered by this contention that had the giving of a passing notice been a condition precedent to the re-consignment charge it would have worked inequitably with discriminatory results, while in itself the charge was reasonable andi proper. It does not appear that the commission determined whether the words “delivering railroad” had any special technical meaning as found in the tariff beyond what they would imply in common use. If they have a technical meaning which might affect the rights of these parties it would primarily be for the commission to so determine, but under the situation disclosed here neither the commission nor the trial court so found. The technical distinction claimed by counsel as affecting construction of the tariff is between the words “delivering railroad” and “carrier.” In this case the one railroad both carried and delivered. Those cars were taken into Detroit, handled and delivered by plaintiff. No other railroad is shown to have participated in their transportation and delivery at Detroit or the revenue therefor. In fact and for all practical purposes plaintiff was both the carrying and delivering railroad. While admission of Connell’s testimony on that subject was technical error, because irrelevant and immaterial as defendants’ counsel contended, it was not prejudicial error. The trial court made no finding on the subject and reached a right decision, as we conclude, on the ground that a passing notice was not a condition precedent to the re-consigning charge, which the commission by administrative adjudication in the exercise of administrative discretion found was in itself reasonable and not discriminatory. We find no occasion to disturb the trial court’s construction of the tariff in question, and the judgments will stand ■ affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

Wiest, C. J. This is certiorari to the corporation tax appeal board. Plaintiff is a Michigan corporation, with $1,822,908.75 of its capital paid up and a surplus of $3,468,616.75. Included in the surplus is $1,100,000, the value of shares of stock owned by plaintiff in the Beaver Cove Lumber & Pulp Company, of British Columbia, a corporation subsidiary to plaintiff. Plaintiff also owns water power rights, timber and timber licenses in British Columbia. The entire capital of plaintiff company was originally invested in timber land, mill site and water power in British Columbia. In 1918, some of the stockholders of plaintiff company organized a subsidiary company under the laws of British Columbia, called the Beaver Cove Lumber & Pulp Company, for the purpose of manufacturing portions of the timber owned by plaintiff. This subsidiary company issued to plaintiff, in payment for a mill site and timber in British Columbia, $1,100,000, par value, of its capital stock. This stock is in the treasury of plaintiff company in this State.. The question presented is, whether the plaintiff is liable for the annual privilege tax of three and one-half mills upon the $1,100,000 of stock so held by it, or only for the minimum fee of $50. Act No. 85, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11361 [4, 7]), provides: “Section 4. Every corporation organized or doing business under the laws of this State, excepting those hereinafter expressly exempted therefrom, shall, at the time of filing its annual report with the secretary of State of this State, as required by section seven hereof, for the privilege of exercising its franchise and of transacting its business within this State, pay to the Secretary of State, an annual fee of three and one-half mills upon each dollar of its paid-up capital and surplus, but such privilege fee shall in no ■ case be less than fifty dollars nor more than ten thousand dollars. * * * “Sec. 5. * * * The term ‘surplus,’ as used in this act, shall be taken and deemed to mean the net value of the corporation’s property, less its outstanding indebtedness and paid-up capital. * * * None of the property or capital, of any corporation subject to paying the privilege fee prescribed in section four which is located^ without the State of Michigan, and none of the capital or surplus of such corporation represented by property exclusively used in interstate commerce, shall in any case enter into the computation of the net amount of the authorized capital, or the capital and surplus, as the case may be, upon which the computation of the privilege fees shall be made.” * * * Plaintiff contends that the stock of the British Columbia company is capital and property located without the State of Michigan and it is the purpose of the act to subject to the privilege fee only that portion of the capital and surplus of a Michigan corporation owned and used in Michigan. In behalf of the defendant it is contended that the situs of the shares of stock is in the State of Michigan and such situs controls the question here presented. Plaintiff holds the stock for the gains and profits the same will bring home to it. Such stock is personal property and its situs for the purpose of taxation, when not otherwise provided by statute, is that of the domicile of the owner. Bradley v. Bauder, 36 Ohio St. 28, 35 (38 Am. Rep. 547). It is clear that shares of stock in a foreign corporation owned by a resident of Michigan constitute personal property within the State subject to taxation. Bacon v. Board of State Tax Com’rs, 126 Mich. 22 (60 L. R. A. 321, 86 Am. St. Rep. 524). If the certificates of stock, now in the treasury of plaintiff, had been apportioned among the stockholders of plaintiff company within the State, such certificates would constitute personal property in the hands of the holders and be subject to taxation. In the hands of plaintiff company they are no less personal property, and rest there as capital or surplus within the State and are held for the revenue they will bring to plaintiff for distribution in the conduct of its business under the law of this State. The British Columbia company was organized for the benefit of plaintiff company, and the certificates of stock in the foreign corporation, in the treasury of plaintiff, are as much capital of plaintiff as was the timber and mill site exchanged therefor; but, unlike the timber and mill site, the stock is within the State .and is personal property employed by plaintiff within the purposes of its organization. Such stock is not property or capital located without the State. In plaintiff’s hands the certificates constitute not only choses in action but personal property; they may constitute the subject of contracts for sale or exchange under our laws; they may be converted like any other personal property; they may be hypothecated, pledged or replevied, and they are protected against larceny and embezzlement. See Bellows Falls Power Co. v. Commonwealth, 222 Mass. 51 (109 N. E. 891, Ann. Cas. 1916C, 834). So, protected by the laws of this State, the certificates, as personal property unquestionably have, in law and fact, their situs within the State. This privilege fee reaches just such a holding as here disclosed. Plaintiff company holds this stock within the State, as surplus capital employed in connection with its business as a Michigan corporation, and stock so held falls squarely within the law requiring the privilege fee. With reference to this holding of stock in the British Columbia company plaintiff is exercising its franchise and transacting its business within this State. This stock, under the terms of the statute, is surplus so long as it remains in plaintiff’s treasury. It also partakes of the nature of capital, as it is personal property devoted to the business purposes of defendant. It must be held that the situs of the stock is within the State of Michigan, and that the same is owned and used in Michigan. The determination of the corporation tax appeal, board is affirmed, with costs to defendant. Fellows, McDonald, Clark, Bird, Sharpe, Moore,. and Steere, JJ., concurred.

Fellows, J. The original bill praying for a decree for separate maintenance was amended to ask for an absolute divorce. It would not profit the parties or the profession to detail the brief and stormy matrimonial career of these parties. It will suffice to say that they were married May 27, 1920, and finally separated August 15, 1921; one child was born; plaintiff at the time of her marriage was a stenographer and law student; it seems to be conceded that she has since been admitted to the bar; defendant operating under the name of the Twin City Exterminating Company took contracts by the year with hotels and other large institutions to exterminate and keep free from vermin such institutions ; he also did such work by the hour. The business was profitable but not as lucrative as plaintiff claims. After hearing plaintiff’s side of the case for several days, the testimony having clearly made a ease and as clearly established that a reconciliation was out of the question, the trial judge inquired of defendant’s counsel: “Is there anything in the case more than the question of the division of the property? It seems to me that we have taken up already more time than should be taken up in this matter.” To this inquiry defendant’s counsel replied: “I don’t think there is, your honor.” The record, we think, fairly discloses that counsel then attempted to reach an agreement upon property matters which was unsuccessful. Defendant’s counsel then called his client to the stand and interrogated him fully as to property matters but made, no inquiry as to his marital troubles and offered no testimony to sustain defendant’s cross-bill. The case was taken under advisement and an audit of defendant’s books by a public accountant was filed with the brief of defendant’s counsel. The trial judge filed an opinion direct ing a decree of divorce for plaintiff with alimony. After the decree was entered an application for rehearing was made by defendant on the ground that he had been prevented from making his defense and that the amount of alimony allowed was excessive. This application was denied. Defendant’s counsel most strenuously urges that the case should be reversed and sent back for a further hearing because defendant has not had his day in court on his cross-bill. It is a sufficient answer to this contention'to say that when the case was- heard’ in the court below no testimony covering the allegations in the cross-bill was offered. Had such testimony been offered no doubt the court would have received it; if he had declined so to do another question, would be presented. As we have pointed out the case: had occupied several days of the time of the court and defendant’s counsel acquiesced in the suggestion of the court that the only question in the case involved property matters and defendant confined his proof to that question. Under these circumstances defendant cannot ask a reversal and a rehearing because the court did not consider testimony not offered. Defendant’s counsel has assigned error as in an action at law upon the admission of testimony. We hear chancery cases de novo, and it will be sufficient answer to these objections to say that the allegations of the bill and the competent testimony in the case make out a cause for divorce. We think the provisions for alimony found in the decree should be modified. Plaintiff was there given the household furniture. This, we think, she should have; she had paid for most of it. She was given the custody of the minor child; this, too, was right. She was given $1,200 a year without limit of time, and this was made a lien on defendant’s property. Her allowance should be a lien on defendant’s proper ty but we think the . amount allowed too high. Defendant had his business when they married. Plaintiff helped him some in it while they lived together, hut, as we have stated, we do not think it as profitable as plaintiff claims. She brought him no property other than the amount she invested in furniture. The property he had when he married her was about all he had at the time of the hearing. Outside of his business he owned some equities, probably not worth to exceed $1,600 or $1,800. The award for support ¡during the pendency of the suit was quite liberal and ■defendant is. considerably in debt; plaintiff is a proficient stenographer and now has a profession. Taking everything into consideration we think plaintiff should be allowed $500 to assist her to start in her profession. This may be divided into four monthly payments. Thereafter defendant will pay for the support of the child $60 a month until the child reaches the age of 14 years. Should the financial condition of either plaintiff or defendant materially change in the future, application may be made to the circuit court for the county of Wayne, in chancery, to change or modify the allowance for the support of the child. As thus modified, the decree will be affirmed. Neither party will recover costs in this court. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. This action is in ejectment and involves a strip of land on the boundary line between lots'4 and 5 of Baldwin’s addition to the city of Pontiac. From a judgment entered on a verdict for the plaintiff, the defendant has appealed. On a former trial plaintiff also recovered a judgment which was reviewed and reversed by this court in 210 Mich. 537, where the facts are fully stated. It was there held that the verdict was against the great weight of the evidence. The record in the instant case presents the same question raised by motion for a new trial, exceptions and assignments. The plaintiffs are the owners of lot 4. The defendant is the lessee of a portion of lot 5. It is the claim of the plaintiffs that the defendant erected a building on lot 5, one corner of which projected over the line of lot 4 to the extent of 2.85 feet. Lot 5 lies south of lot 4. The defendant denies that any part of the building extends over the line of lot 4, but claims that the nearest part of the foundation is 18 inches south of that line. It is conceded that the question in' issue is the boundary line between lots 4 and 5. All of the original monuments marking this line are gone but there was an old fence between the lots which had existed for more than 15 years, and which was torn down at the time the building was constructed. As the original monuments have disappeared the location of this fence is determinative of the line. To maintain the issue on their part the plaintiffs produced five witnesses, one of whom was a surveyor. None of these witnesses except the surveyor made any measurements. None of them knew where the old fence was. Those who remembered it had only casually observed it. They based their judgment on certain old posts which they assumed to be on the old line. The uncertain character of this testimony is well illustrated by the admission of the witness Ziedick, who, after testifying that the northeast corner of defendant’s building encroached on plaintiffs’ lot to the extent of three or four feet, said on cross-examination, ‘T never made any measurements, the fence might have been over three feet, from where in my judgment I think it was, I don’t think it was over ten feet.” The railroad crosses lots 4 and 5 diagonally somewhere near the center of the lots. The only portion of lot 5 owned by the company is east of its right of way. The land on the west is low and swampy. The witness Lenhardt, who made a survey for the plaintiffs, testified that when he was there part of it was under water, that there was a line of posts over in the swamp, that he knew posts set in that kind of soil did not always stay in line, that some of the posts were standing upright and some were lying down or leaning over. Assuming that about 50 per cent, of these posts were on the line between lots 4 and 5 westerly of the railroad, he ran his lines with the result that he found the building encroached on plaintiffs’ lot 2.85 feet. Referring to this on cross-examination, the witness testified: “Q. Well, how did you know, how did you know in this soft mucky soil, that these posts which were over farthest were not on the original or on the true line, how did you know? “A. I was not there when the fence was built. “Q. And, of course, you don’t know, that’s why I am asking you this question. Now, you found several posts there in mucky soil, which had been there, as you think, for some time, and you took those, assuming those were on the true line, didn’t you, in sighting through? “A. Yes, sir.” This testimony was evidently admitted on the theory, supported by the testimony of other witnesses for the plaintiffs, that the line fence when it was .standing was in a straight line from one end of the lot to the other. The surveyor also testified to measurements made on the basis of the original plat. For these he had no fixed starting point. There was no definite monument shown by the plat. Counsel for the defendant objected to the testimony of this witness and later made a motion to strike it all out. The motion should have been granted. See, Hustina v. Refining Co., supra, and cases therein cited. All of the positive testimony as to the exact location of the old boundary fence in relation to the position of the building comes from the defendant’s side of the case. The man who had charge of the construction of the building, the carpenter, the teamster, who did the excavating, the mason and three others who worked on the building, all saw the old fence easterly of the right of way and testify that the northeast corner of the building was placed about 18 inches from plaintiff’s line. Other witnesses, 11 in all, gave positive testimony as to the location of the line fence. These witnesses were in no way impeached, yet the jury must have wholly disregarded their testimony in finding a verdict for the plaintiffs. The verdict is contrary to the overwhelming weight of the evidence. The language used in Bernard v. Grand Rapids Paper Box Co., 170 Mich. 238 (42 L. R. A. [N. S.] 930), is applicable to this case: “Under our practice, this court must exercise its judgment as to the weight of the evidence in the instant case. We are satisfied upon this record that the verdict was against the clear weight of the evidence. We do not see how any other conclusion is possible. The instant case is of that class occasionally before the courts where, for some reason, not always apparent, justice has miscarried, and a verdict has been found against the weight of the evidence. Brassel v. Railway Co., 101 Mich. 5; Gregory v. Railway, 138 Mich. 388; Crowe v. Railroad Co., 142 Mich. 696.” Judgment is reversed and a new trial granted. Defendant will have costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Clark, J. Sallie Riegler was . granted divorce from Floyd A. Riegler in¡ the Kalamazoo circuit on December 5, 1919. The decree provided that he pay $18 per week, weekly in advance thereafter, for the support of minor children. Later a warrant was duly issued by a magistrate of Kalamazoo county charging the father with a violation of Act No. 276, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 11450 [1-2]), entitled: “An act making it a felony to neglect or refuse to obey the decree of a court of chancery providing for the support of minor children in certain cases, and to provide a penalty for the violation of the provisions of this act.” The arrest was made in Chicago where it is said the accused then resided. Proceedings for extradition were waived. The prisoner was conducted into the jail of Kalamazoo county. He was later released on bail. Immediately after such release he was arrested, on an attachment from the court which made the said decree, for contempt of court in failing and refusing to make the payments so required, the aggregate of payments in default then being $934. He moved to quash the attachment and for his discharge on the ground that he was immune from arrest on such process because he had been brought into the State of Michigan on criminal warrant and was in the State to answer the criminal charge. The motion was denied. He seeks to compel by mandamus the granting of such motion. It seems to be the rule in this State that one situated as was plaintiff herein cannot be served with civil process or arrested thereon while necessarily in attendance upon court and until he has been given a reasonable opportunity to depart from the State. Weale v. Clinton Circuit Judge, 158 Mich. 563, and cases there cited; McCullough v. McCullough, 203 Mich. 288; 14 A. L. R. 778; 25 C. J. p. 272. Respecting trial and punishment for other criminal offenses it was held in Lascelles v. Georgia, 148 U. S. 537 (13 Sup. Ct. 687), quoting syllabus: “A fugitive from justice who has been surrendered by one State of the Union to another State, upon requisition charging him with the commission of a specific crime, has, under the Constitution and laws of the United States, no right, privilege or immunity to be exempt from indictment and trial, in the State to which he is returned, for any other or different offense from that designated in the requisition, without first having an opportunity to return to the State from which he was extradited.” This holding was followed in Re Little, 129 Mich. 454 (57 L. R. A. 295), where it was held, quoting syllabus: “A person arrested in another State, charged with a Federal crime in Michigan, and brought here to await the action of the Federal grand jury, may be .turned over to the State authorities to be tried for a violation of our laws, without being allowed time to return to the State where he was originally arrested.” And in the Little Case there will be found criticism of In re Cannon, 47 Mich. 481, and People, ex rel. Watson, v. Judge of Superior Court of Detroit, 40 Mich. 729, cited by plaintiff. It has been held that the process in question is criminal, not civil. See Carnahan v. Carnahan, 143 Mich. 390 (8 Ann. Cas. 53, 14 Am. St. Rep. 660), and cases there cited. And support fori this holding will be found in our statutes respecting the enforcement of such decrees. See 3 Comp. Laws 1915, §§ 12268 et seq. and 11443 et seq., Act No. 415, Pub. Acts 1919, and Act No. 158, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11449). Bastardy proceedings in this State are not regarded as strictly criminal (Harley v. Ionia Circuit Judge, 140 Mich. 642; People v. Cole, 113 Mich. 83), but it was held in Cady v. St. Clair Circuit Judge, 139 Mich. 618, quoting syllabus: “Bastardy proceedings are so far of a criminal nature that a person who is within the State only for the purpose of putting in special bail in an action in which he was arrested on a capias is not privileged from arrest on a charge of bastardy.” There should be a like holding respecting the proceedings in the case at bar, namely, that the proceedings are so far of a criminal nature that the plaintiff was not privileged from arrest therein. Writ denied, with costs to defendant. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Sharpe, J. In November, 1919, the defendants were engaged in constructing a concrete bridge over the Boyne river in the city of Boyne City. Water for preparing the concrete was procured from a hydrant on the street and was carried to the mixer through a 11/2-inch pipe, which crossed the sidewalk on Water street from 10 to 14 inches above the walk. The plaintiff, a married woman 37 years of age, testified that while returning from the business section of the city to her home she tripped on this pipe and fell, sustaining injuries. This action is brought by her to( recover the damages occasioned thereby. She had verdict and judgment for $1,500. Defendants bring the case here on writ of error. The assignments will be considered in the order discussed by counsel. The declaration alleged: “That by such fall she injured her left knee, dislocating the kneecap, from which she has suffered severe pain, the veins of her left leg becoming varicose, and she has continuously suffered from the jar and. nervous shock; her memory affected, and she has been wholly disabled from doing her usual work since said fall and has suffered irreparable painful and permanent injury.” Plaintiff testified, over defendants’ objection: “I fell on my left knee and wrenched myself in trying to save myself. I struck on my left knee and wrenched myself around. * * * I think my kneecap was injured or put out of place because it slips at the place at times, after the injury. It did not before.” Dr. McGregor, who was called to treat plaintiff several days after, testified: “I remember being called to treat Mrs. Gallagher in December, 1919, for an injured knee. The knee was swollen and painful and there was some discoloration» The kneecap was raised up and riding. ‘ If you would push it down it would hit the condyle. It was not out. of place or dislocated when I saw it. I put on a. splint, bandaged the knee and applied cold applications. The knee joint is a very sensitives joint when injured. Rather more sensitive than most of the joints in the body.” Dr. Conkle testified that a fall such as plaintiff testified she sustained might dislocate the kneecap. “Dislocate” may be defined as “to put out of its proper place.” The allegation in the declaration informed the defendants that plaintiff had sustained an injury to her knee. Under the liberal rules, of pleading in this State, we do not think it should be said that the declaration was not sufficient to admit the proof received. In it we think the defendants were sufficiently informed of the injury plaintiff claimed she had sustained. Montgomery v. Railway Co., 103, Mich. 46 (29 L. R. A. 287), and cases cited. Error is assigned on permitting Dr. Conkle to answer certain hypothetical questions put to him. It appears that when objection was made plaintiff’s counsel changed the form of the questions to meet the objection and that none other were made. Complaint is made that the trial court did not submit defendants’ “theory of the case” to the jury. Attention is called to the 9th paragraph wherein the court said that defendants claimed “under the testimony, this was purely accidental.” In the 5th paragraph the court had said: “The defendant denies that this pipe aij the time was in the position the plaintiff claims it was.” This was followed by a statement of defendants’ claim that their workmen had removed the pipe before plaintiff passed along the street. If the plaintiff did not trip on the pipe, but fell because of the ice on the sidewalk, then her fall was accidental. We find no error in the instruction in this respect, when considered in its entirety. This assignment is thus stated: “Error in failing to instruct the jury how to apply the law of contributory negligence.” The jury were instructed: “Now, contributory negligence is the negligence of the plaintiff which contributes to any degree to the injury of which complaint is made.” In the absence of a specific request, we- think this instruction and the explanation which immediately followed fairly presented the matter to the jury. In instructing the jury that if they found plaintiff permanently disabled they might allow her for pain and suffering in the future, the court erroneously stated that her age was 37 and her expectation of life 31 years, whereas in fact the plaintiff was 37 at the time of her injury and 39 at the time of the trial and her expectancy of life at that time but 28 years. - No instruction was given that the jury should only allow thé present worth of such amounts as would compensate her for pain and suffering in the future. As was said in Denman v. Johnston, 85 Mich. 387, 399, such damages are matters “which the ordinary jury, without special instructions as to the method of ascertaining them, are hardly competent to grapple, with.” We have no means of knowing the amount so allowed by the jury. That the plaintiff suffered much is clearly established. Had the total verdict been awarded for future pain and suffering, the allowance would have been at the rate of about $50 per year. These errors affect the amount of the verdict only. We think the defendants will be amply pro tected by requiring the plaintiff to remit $100 from the judgment rendered. Error is assigned on the instruction as to the damages to which plaintiff was entitled. Without quoting it, we are of the opinion that it fairly presented the nature of plaintiff’s claim as to her injuries and the damages which should be allowed if such claim was supported by the proofs. On motion for a new trial defendants claimed that the verdict was grossly excessive and unreasonable. We have read the record with care and cannot so conclude. If plaintiff shall within ten days after the filing of this opinion file a consent that the judgment be reduced to $1,400, it will stand affirmed. In such event, in view of the fact that counsel for the defendants failed to call the court’s attention to the errors in the charge which have resulted in such remission, no costs will be allowed. Should such consent not be filed, the judgment will be reversed and a new trial granted, With costs to defendants. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Moore, and Steeee, JJ., concurred.

Sharpe, J. Defendant, by writ of error, seeks review of a judgment entered on a directed verdict against him in the sum of $892.60 in favor of the plaintiffs, representatives of the E. W. Sparrow estate, for rent of certain premises in the city of Lansing. A written lease of the premises was made by Frank E. Church as agent of the estate to Dan H. Hasbrook and Hattie E. Hasbrook for two years, commencing on April 1, 1916. They conducted a restaurant therein. On December 29, 1916, the Has-brooks assigned their interest in the lease, with the written consent of Church, to the defendant. At the same time they sold to defendant the furniture and equipment of the restaurant, taking a chattel mortgage thereon for a part of the unpaid purchase price. In September, 1917, the agency of the estate was transferred from Mr. Church to O. A. Jenison. Defendant conducted a restaurant in the premises and paid the rent until November, 1917, when he was drafted into the military service. Before leaving, he entered into a written agreement with Mrs. Riker, under which she was to occupy the premises. This agreement was drawn by Mr. Church, whose agency of the estate had theretofore terminated. Two copies were made. Neither copy was produced in court. An objection to parol evidence of its contents was sustained. The defendant, however, was permitted to testify: “Mrs. Riker was in full charge of the place, and run it until I got back. I simply turned over the whole business entirely to her. Mrs. Riker was to run the place. She took charge of the place just as I did when I bought it from Mr. Hasbrook, exactly the same.” Whatever its nature, it is apparent that it did not assume to transfer the lease to her. Defendant testified that he kept the lease and had it in his possession when he returned to Lansing in September, 1918. The restaurant was then closed. The rent had been paid up to April 1, 1918. Possession of the premises had not been surrendered. After an interview with Mrs. Riker, he went to see Mr. Jenison. Summary-proceedings against defendant were commenced to obtain possession of the premises. He testified that Jenison afterwards said to him: “If I fix it up with Mr. Hasbrook to let him have the fixtures back let him give the key to Mr. Jenison, he will let him go with the rentals which was due him. * * * At that time Mr. Jenison told me he would not exact any rent for any of the past occupancy of the building.” A written agreement was entered into, providing that the Hasbrooks might store the mortgaged property in a part of the leased premises until January 1, 1919, free of rent. 'The key was turned over, by whom it does not appear, to Jenison. Plaintiffs’ judgment was for the unpaid rent from April 1st to September 15,1918. The lease contained a provision: “Provided second parties may have the right to renew this lease for three additional years at such rent as can at that time be agreed upon.” No such agreement was made. Defendant’s counsel insists that plaintiffs, having offered no proof as to the rental value of the premises, were not entitled to recover. No assignment of the lease, assented to by the estate, and no surrender of possession of the premises having been made, and the landlord having acquiesced in the tenant’s remaining in possession, the defendant was in law a tenant holding over upon an implied contract to pay rent for another year according to the terms of the lease. Faraci v. Fassulo, 212 Mich. 216; Rice v. Atkinson, Deacon, Elliott Co., 215 Mich. 371 (19 A. L. R. 1399). In Rice v. Atkinson, Deacon, Elliott Co., supra, relied on by defendant, this rule is adhered to. In that case a tenant had held over after the time for which the premises were leased to him had expired. The question presented was whether a notice to quit at the end of the year was necessary. In the majority opinion it was said: “Where there is no express agreement for a renewal of an annual lease and the tenant remains in possession after the term has expired the landlord may treat him as a trespasser or may acquiesce in his continuing in possession and in the latter event the law presumes that the tenant holds for another year subject to the terms of the previous lease.” Error is alleged upon the failure of the court to submit to the jury the claim of defendant that Mr. Jenison agreed to forego the rent unpaid at the time possession was restored to the estate. The only authority Mr. Jenison then had as agent of the estate was to collect the rentals as they fell due and to re-rent the premises. The only consideration claimed for such a promise on his part was the delivery of the key to him. This defendant was under legal obligation to do in order to relieve himself from further liability to pay the rent. Defendant's purpose in seeing Mr. Jenison was to secure a termination of his liability under the lease. He could have had no other purpose in mind. If relieved of his obligation to pay rent by his agreement with Mrs. Riker, he would have had no occasion to visit Mr. Jenison. The estate was not seeking to terminate the tenancy for any reason other than the nonpayment of the rent. The surrender of possession was no such consideration as would support a promise to forego the rent then due. Davis v. Rider, 5 Mich. 423. We are also impressed that had any such agreement been made by Mr. Jenison it would not be binding on the estate. Jenison’s authority as agent was limited to the rental of the premises and the collection of the rents as they accrued. The judgment is affirmed. Wiest, , C. J., and Fellows, McDonald, Bird, Moore, and Steere, JJ., concurred. Clark, J., did not sit.

Steere, J. Oh August 2, 1918, defendant Boyes & Blandford Company entered into contracts with the State highway commissioner under the so-called Covert act to do certain highway construction on the “Huron Shore Pike Job” in Sanilac county, technically known as assessment districts 150, 151, 152 and 158. There was a separate contract entered into for each of the four districts with a bond as the law required for its faithful performance, approved by the State highway commissioner, furnished and executed by defendant New Amsterdam Casualty Company. The condition of each bond is as follows: “The condition of this obligation is such that if there shall be paid, as the same may become due and payable all indebtedness which may arise from said contractor to a subcontractor or party performing labor or furnishing materials, or from any subcontractor to any person, firm or corporation on account of any labor performed or materials furnished in the erection, repairing, or ornamentation of such building, improvement or works, then this obligation to be void, otherwise to remain in full force and virtue.” On August 14, 1919, the Burt Portland Cement Company entered into a contract with the Boyes & Blandford Company to furnish the latter 7,000 barrels of cement to be used in construction of culverts on those Huron Shore Pike sections at a price of $2.55 per standard barrel, including package, “f. o. b. cars, freight allowed to destination based upon the present tariff applying from Bellevue, Michigan.” The cement was to be packed in cloth sacks for which 10 cents each would be allowed for all returned within 90 days in good condition, and 5 cents per barrel discount allowed “for cash in full monthly, upon receipt of monthly estimates from State.” Four places of delivery, Amadore, Croswell, Applegate and Carson-ville, convenient to the sections of highway to be constructed, are specified. Times of delivery are stated: “As per contractors’ requirements until completion of work — State says ‘must complete work December 1, 1919.’ ” Specifications for cement under the contract are that it “is to conform to standard specifications for Portland cement adopted September 1, 1916, by the American Society for Testing Materials.” On August 30,1918, the Burt Portland Cement Company wrote the Boyes & Blandford Company, stating “Instructions have just reached us from Washington that ‘No manufacturer will furnish any road building material until the project has been approved by the United States Highway Council:”’ that it included bridges and culverts, and the approval must come through the State highway commissioner; that the order forbidding shipments except upon approved work became effective September 10, 1918, and the State highway commissioner had advised it “would be best for all concerned that you have delivered immediately — or before September 10th — and stored at different points along your line all the cement you would like to use this fall and we urge you to take this matter under advisement,” saying that if the plan outlined was decided upon “do not delay placing your orders a day longer than necessary.” On September 3d Boyes & Blandford Company responded by wiring “Ship immediately with expectation of completing before September 10th.” Four thousand, six hundred and four barrels of cement were delivered along the main line at convenient points between the 1st and 9th of September, 1918. The work was delayed because of labor scarcity, difficulties in getting gravel and other impediments resulting from existing war conditions, and extensions of time were granted by the State highway department, but Boyes & Blandford Company had become financially embarrassed to the extent that on January 6, 1919, it entered into an agreement with the Burt Portland Cement Company and all but one or two other of its creditors by which they consented to defer payment of debts then owing them for a year, also consenting to Boyes & Blandford Company consummating a loan from Philip Fritz of Grand Rapids for the purpose of continuing and completing its “Sanilac and Le Roy jobs,” and appointing Fritz “trustee for creditors to receive, handle and disburse the funds coming into his hands as such trustee for the purpose and in the manner herein stated,” the general scope of his trusteeship being “to supervise the finances of said debtor in the interests of all creditors.” Paragraph 4 of said agreement provides: “That said trustee shall apply the money obtained from the before-mentioned loan or loans, together with all moneys received on estimates from the State of Michigan under the contracts with said State covering the said Sanilac and Le Roy jobs, first, to the payment of all valid and accrued debts incurred in prosecuting the work on the said jobs. Provided, that persons furnishing materials on said jobs shall be paid for such materials only as estimates are received from the State, and then for such of said materials as are covered by said estimates.” The Boyes & Blandford Company continued performance of their contracts under extensions of. time, but on November 1, 1919, the State highway authorities ordered it to discontinue all use of Burt Portland cement. In October, 1918, the State highway commissioner notified Boyes & Blandford Company that one car load shipped to Carsonville in September, 1918, had failed to meet the test for standard requirements as to tensile strength, and after May 5, 1919, the State ordered the contractor to screen all Burt cement in which process about one-third of it was screened out and thrown away. Plaintiff Alpha Portland Cement Company, a New Jersey corporation, became owner of this claim as assignee of the Burt Portland Cement Company after action was begun, following which pleadings were amended by consent of counsel and this case tried before the court without a jury. Findings of fact and conclusions of law were filed by the court, resulting in a judgment in favor of plaintiff against the Boyes & Blandford Company for $4,016.82, and of no cause of action in favor of the New Amsterdam Casualty Company. From such adjudication plaintiff brings the case here for review by writ of error alleging 75 different errors committed by the trial court. The direct controversy in this court lies between plaintiff and the New Amsterdam Casualty Company, although plaintiff’s counsel discusses at, length the liability of Boyes & Blandford Company separately, “to clarify the issue as to the bonding; company.” The trial court held as a conclusion of law that upder the. terms of its bond the casualty company was only liable for the amount of cement which was actually used in and became a permanent part of the highway construction accepted by the State and that it could not be held accountable for “any cement sold from jobs or which still'remained on the jobs, or which was screened out and thrown away pursuant to order of the State highway department.” The court also found “as a matter of law that the fraud of plaintiff’s assignor (the Burt Portland Cement Company) in attempting to defeat the war order of the United States government is a further reason why it cannot recover against the New Amsterdam. Casualty Company.” Part of the court’s findings upon that proposition are as follows: “That between September 1st and September 8,1918, as a result of this conspiracy and plan there was placed on these jobs 22 car loads of cement, being 18,416 sacks or 4,604 barrels, all of the parties thereto knowing the lack or inadequacy of storage facilities on said jobs, the nature of the materials in question, and the time in which it would deteriorate, and the impossibility of its being used before winter set in. The defendant bonding company was not a party to and had no knowledge of this action. As a result of it, however, a large quantity of said cement became unfit for use and about May 1, 1919, the State highway department required all Burt Portland cement to be screened by the contractor, and about November 1, 1919, ordered its use to be stopped because it was in a large measure spoiled. A large portion of said cement was, as a result of this fraudulent plan and scheme, wasted. * * * “I further find that the actions of plaintiff’s assignor, the State highway department and the defendant, Boyes & Blandford Company, in entering into a conspiracy and unlawful understanding to place upon "this job 22 car loads of cement, not as contemplated by the contract, but all at one time and to ship this 'Cement just prior to the time when the Federal war ■order creating the Federal highway commission went into effect, was done for the purpose of making delivery of said 22 car loads of cement without the consent of the United States government in time of war.” The record fairly supports the court’s finding of facts as to a combined activity of the named parties to rush delivery of sufficient cement for those contracts before the Federal order, made effective September 10, 1918, took effect, and the consequences of their haste which resulted in this litigation; but the United States is not complaining or a party to this action, nor are we referred to any authority sustaining the proposition that shipping and delivering this cement to the contractor before the Federal order went into effect was unlawful or fraudulent, though evidently ill-advised as the court points out. The only injurious results disclosed were to the alleged conspirators themselves. Aside from that question, however, the trial court was right in the conclusion that the defendant bonding company could not, under the condition of its bonds, be held liable for any cement not actually used in constructing this highway. These bonds, were given under and with express reference to the requirements of Act No. 187, Pub. Acts. 1905 (3 Comp. Laws 1915, § 14827 et seq.). Said act is entitled: “An act to insure the payment of subcontractors and wages earned and material used in constructing, repairing and ornamenting public buildings and public works.” Section 1 of the act requires “sufficient surety by bond for payment for all labor performed and materials furnished in the erection, repairing or ornamenting of such building or works.” The contracts were with the State highway commissioner under the Covert act and subject to his supervision, with an approved statutory bond presumably in an amount based on the size of the contract with a view to cover the labor done and material used in constructing the highways. The act provides the manner of making payments to contractors by the State. Both the contract for this cement and the creditors’ agreement contemplate payments based on State estimates which only recognize accepted work done and material used in the construction. On November 2, 1918, the Portland company’s sales manager wrote urging Boyes & Blandford Company to “see that the work is vigorously prosecuted that we may both secure the money which will then be available.” He testified that when he wrote this letter he knew “the money was to be received when the estimates were made by the State and the money paid by the State.” But even if the contracting parties had no understanding that the contractors’ bond did not cover unused or rejected material furnished for the work, previous decisions of this court are contrary to plaintiffs construction of our statute. Protection under the statutory bond is analogous to that under our general lien laws. In People v. Sheehan, 118 Mich. 539, plaintiff brought action against a paving contractor and sureties on his bond for purchase price of some rejected curb-stones furnished for use in paving a street of Detroit. This court there said: “We are of opinion that the bondsmen cannot be held liable for material which, though purchased for this job on Randolph street, was rejected and sold to other parties.” It is. true the authorities in other jurisdictions are not in entire harmony upon that subject, and in some States under the wording of their statutes it has been held that the surety is liable for material bought and furnished in good faith for use in the work contracted for although it was rejected or otherwise disposed of by the contractor and did not become a part of the construction, apparently on the theory that the contractor became an agent of the surety for the purpose of contracting such liability. This court has taken the view that to so extend the statutory protection— “would tend to impair, if not absolutely destroy, the value of the bond to those who, in fact, did perform labor or furnish materials ‘in the erection, repairing or ornamenting of such building, works or improvements.’ ” City of Alpena v. Surety Co., 159 Mich. 329. The court was then construing an act of like import and superseded by Act No. 187, supra, the wording so far as material here being the same. It is also said of the legislative intent: “We are of opinion that by the statute in question the legislature intended to afford to those who furnish labor or material for public buildings or works the same protection they would have under the general lien laws of the State, had the labor or materials been furnished for. a private undertaking. If we are correct in this view, we are left in no doubt as to the construction the statute should receive. In Smalley v. Gearing, 121 Mich. 190, 203, this court said: “ ‘The equity of a lien claim for labor or materials arises from the fact that the value of the property to which they have been applied has been increased.’ “This case was cited and approved in North v. Fence Co., 144 Mich. 557. See, also, Luttrell & Co. v. Railroad Co., 119 Tenn. 492 (105 S. W. 565); McCormick v. Water Co., 40 Cal. 185.” Counsel for plaintiff particularly stresses and quotes from Western Hardware & Metal Co. v. Casualty Co., 105 Wash. 54 (177 Pac. 703, 181 Pac. 700). The lien law of that State makes the contractor agent of the owner for the purpose of establishing a lien, and their bonding statute imposes protection of material men and all others who furnish the contractor “with provisions and supplies for the carrying on of such work.” That opinion recognizes the apparent lack of harmony in different jurisdictions with the suggestion that it is more apparent than real owing to difference in language of different statutes, and says: “Of course, where a statute by its terms gives a lien right only for material actually going into and becoming a part of the structure, as some of them do, such a condition is necessary to support a claim of lien thereunder; but such are not the terms of our lien or bond statute.” In United States v. Jack, 124 Mich. 210, cited for plaintiff, the court was dealing with the Federal statute which is quite different in its provision from that of this State and protects all persons supplying the contractor with “labor and materials in the prosecution of work provided for in such contracts,” language which in the connection used the court said “could not well be more comprehensive.” This cannot be said of the Michigan act. The bonding company being held only liable for cement which was accepted, used in and became a part of the highway improvement, it is further urged for plaintiff that the court’s finding of fact that all so used was paid for is not supported by the evidence. It appears undisputed that on September 4, 1918, the next day after sending its message to the Portland Cement Company to start shipments immediately, Boyes & Blandford Company wrote the State highway department authorizing it to pay the cement company “for cement when shipped for Huron Shore Pike at $2.56 per bbl., delivered, and charge to our contract,” and on October 7, 1918, wrote the State highway commissioner in part as follows: “Inclosed we hand you O. K. invoices of the Burt Portland Cement Co. covering shipment of cement for our work on Huron Shore Pike. (Stating places where delivered, amounts received at $2.56, etc.) “Amount due Burt Portland Cement Co. $11,746.84. 121/2 bbls. deducted for damaged cement. See Fgt receipt with notation of damage attached to invoice. “Kindly return invoices for our files when you are through with them.” Plaintiff’s evidence showed that in connection with the arrangement for hurried shipment before the Federal order went into effect it was understood the State department would pay the Burt Portland Cement Company for the cement when shipped, on Boyes & Blandford Company’s orders, and charge the advancement to the latter’s contrac b. This could not be legally done and payments were only made on estimates as the work progressed. The State estimates so made gave no separate estimate or statement of the cement used, but showed the cubic yards of concrete accepted and the amount each of two different mixes of concrete, the formula for which, 1-2-4 and 1-8-6, according to the testimony, required 1.61 bbls. of cement in each cubic yard of 1-2-4 concrete, and 1.05 bbls. in a cubic yard of 1-8-6 concrete. Applying this formula the court found: “The amount of cement actually used in the con struction of these various jobs figured from the estimates and taking into consideration the different mixes is 3,085.69 barrels, which at $2.55 a barrel amounts to $7,868.51.” A war tax amounting to approximately one cent per barrel on these shipments was imposed by the Federal government, which was included in the invoice price Q.K.’d by Boyes & Blandford Company as a proper charge under their contract, which allowed freight to destination based on the then tariff applying from Bellevue. Approaching the subject by elimination of cement not used in the work from the total amount delivered at the job, the court found that of the cement required to be screened after May 2, 1919, “it was necessary to throw away about one-third of it” because there were lumps in the cement and the part which was thrown away was of no value and useless, but did not find how much was screened. It appears, however, that the witness who furnished the testimony on which this finding is based also estimated the quantity screened out and thrown away as “more than 175 barrels.” The court also found with sustaining proof that Boyes & Blandford Company sold 600 barrels of the rejected cement for $1.50 per barrel because of its condition, that 175 barrels more were sold to the Schlinkert Building, Fuel & Supply Company for $144.46 by plaintiff’s assignor, who retained the money, and about 121.5 barrels, in sacks and worthless, were left on the job. The finding of facts concludes as follows: “State estimates show that 3,085.69 barrels of cement were in the work. Of this cement 2,142.74 barrels were paid for, leaving 943.95 barrels not paid for but used in the work. Adding 943.95 barrels and 121.5 barrels we have 1,065.45 barrels of cement not paid for and for which defendant, Boyes & Blandford Company, is liable at $2.55 per barrel, being $2,728.90. Defendant Boyes & Blandford Company, is also liable to plaintiff for 600 barrels at $1.50 per barrel, being $900.” The court’s conclusions of law end as follows: “I find that plaintiff is entitled to recover from the Boyes & Blandford Company the sum of $3,626.90 together with interest at 5 per cent, from the 1st day of December, 1919.” The judgment entered thereon in favor of plaintiff against Boyes & Blandford Company is, as before noted, “in the sum of $4,016.82,” with costs. To the court’s original findings and conclusions, which as such are set out in the record at length, counsel for plaintiff proposed as amendments 75 findings of fact, and 25 conclusions of law asked to be substituted “in lieu of the entire conclusions of law found by the court.” A short order of the court grants some and refuses others by number, concluding: “It is further ordered that the findings filed by this court on October 29, 1921, and the foregoing proposed amendments to the findings of fact and conclusions of law which have been allowed or refused as above indicated, are the court’s completed findings of fact and law.” Search and comparison of the rather voluminous “court’s completed findings of fact and law” as above indicated, with amendments and substitutions allowed by number only, discloses some inconsistencies and uncertainty as to the mathematics and theories by which the judgment rendered was arrived at. • The theory of conspiracy and fraud might, if tenable, justify the judgment in favor of the bonding company, but that reason was only given in the court’s conclusions of law as “a further reason” why plaintiff could not recover against it, after holding the bonding company only liable for such cement as was actually used as a part of the finished work and that plaintiff had been paid in full for all cement actually so used. Yet the court found with sustaining proof that 3,085.69 barrels of cement were so used in the work, which at $2.56 per bbl. would amount to $7,899.36, and that it was conceded plaintiff had been paid $5,628.82, which leaves a debit balance of $2,270.54 in its favor yet unpaid. The record well supports the finding of facts which gives that result, and plaintiff should have judgment against the bonding company for $2,270.54 with interest at 5 per cent, from December 1, 1919. Plaintiff also urges that the*judgment against Boyes & Blandford Company should be for the agreed purchase price of the 4,604 barrels delivered, less total credits, and argues the deductions made by the court are unsupported in fact and law. No brief has been filed by Boyes & Blandford Company except as counsel for the bonding company contend against the judgment and its size, primarily in their client’s defense. In that connection the sweeping contention is made that in any event plaintiff cannot, under the provisions of its contract of sale and the creditors’ agreement, compel payment beyond estimates and payments by the State to the contractor of which 20 per cent, is withheld by the State until final estimate is made, and none had been made when this action was begun. The judgment rendered shows that theory was not entertained by the trial court. Neither is it tenable under the facts shown. The quantity of cement delivered between September 2d and 10, 1918, was shipped und'er special agreement for prompt payment supplemental to the original contract of purchase. Boyes. & Blandford Company’s treasurer and secretary testified to an arrangement between the parties whereby the State would pay for that cement as it was shipped and charge it to the contract of Boyes & Blandford Company when it was accepted by the latter, there being two reasons for ordering it shipped at that time, saying in part: “One was due to the railroad conditions that were tightening up at that time, and the possibility of not being able to get the material on the job, and the other was that we planned that this work would be completed in reasonable time, and would for that reason have the entire amount shipped to the job, and this was the substance of the conversation between myself and Mr. Boyes regarding this cement at that time. * * * “Q. Then you have told us about some sort of an arrangement you had with Mr. Burt about the payment of this money by the highway department. “A. Yes. “Q. To be paid all forthwith upon shipment? “A. That was the agreement. * * * The agreement was to pay the money forthwith on shipment. The only thing I had done was to notify the State department, or make an order on the State department to the Burt Portland Cement Company in accordance with that agreement.” The creditor’s agreement as to payments on estimates, whatever its validity or application before, could scarcely operate on this performed contract of sale and purchase after November, 1919, when use of Burt cement was stopped and the rights of these parties, whatever they were, permanently fixed. By that contract, delivery was to be made according to requirements of the purchaser, on its shipping orders in writing, by giving the seller instructions and reasonable time before shipments were to be made. Time of shipping, as well as quantity, within limits of the contract, were subject to the purchaser’s orders, The cement in controversy was shipped in compliance with Boyes & Blandford Company’s order of September 3, 1918, instructing the cement company to start shipping immediately with a view of completing the order before the • 10th of that month, and to be sure it “passed strict test.” C. H. Denman, a chemist of 20 years’ experience, largely with cement, who was in charge of the Burt Portland Cement Company’s chemical department at that time, produced and verified a copy of the records made in the fall of 1918 when analyzing and testing this cement. He testified that of his own knowledge the tests and records then made were “true and correct and that they conform to the standard specifications for Portland cement adopted September 1, 1916, by the American Society for Testing Materials.” When the Burt Portland Cement Company delivered this cement on Boyes & Blandford Company’s written order at the time and place directed, of a quality complying with the tests specified in the contract, it had fully performed on its part as to such shipments. It thereafter had no control over the time when it shpukl be used or where it was stored. Its suggestion to Boyes & Blandford Company for increased immediate delivery orders in view of the Federal orders was for “all the cement you would like to use this fail.” No complaint was made to the cement company that any of this cement was not up to the standard test specified in the contract until this action was begun two years later, and then only as to one car load designated by letters and No. 13980, shipped to Carsonville, September 13, 1918, which the State highway commissioner wrote Boyes & Blandford Company, on October 14, 1918, failed to meet the test as to tensile strength. Neither the State or contractor notified the Burt Portland Cement Company of that fact, so they could withdraw the car and replace it, and no attention was even paid to the notice from the State by the contractor. Boyes himself testified: “We did not make any attempt to keep these cars separate in unloading them. * * * The cars were not kept separate in unloading. The cement from that car was mixed with the other cement.” Defendant’s hearsay proof that this car failed in tensile strength was the copy of a test made by the Perry Testing Laboratory in Detroit sent to the State highway engineer, who did not see the test made, and which was admitted in evidence against objection, unverified by the testimony of any witness who was present, or knew that the claimed test was correctly made. Even the original record would seem to require supporting evidence. Swan v. Thurman, 112 Mich. 416. But if it was below the standard of strength it was the duty of Boyes & Blandford Company to so advise the cement company within a reasonable time if they desired to escape payment for it. Columbus, etc., Iron Co. v. See, 169 Mich. 663; Pentland v. Jacobson, 189 Mich. 339. This they did not do. They apparently paid no attention to the notice of the State highway commissioner, retained and used the car load the same as the rest without complaint or notice to the cement company for over two years after being advised by the State, and not until sued for its value. With such a lapse of time they must be deemed to have affirmed its previous acceptance on October 7, 1918, when they O.K.’d the invoices showing “Amount due Burt Portland Cement Company,, $11,746.84.” Excepting this car load, the trial court found in an allowed amendment to the original findings, “That the cement furnished in the job was all furnished in accordance with the contract.” From tangible figures in the findings sustained by the evidence we conclude plaintiff should have judgment against Boyes & Blandford Company to the amount of $6,118.02 with interest at 5 per cent, from December 1, 1919, less the joint judgment against both defendants for the amount the bonding company is holden for. The case will be remanded with instructions to modify the judgment heretofore entered in accordance with this opinion. Plaintiff will take costs in this court. ■ Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.

Steere, J. Rose Tucker was tried before a jury in the recorder’s court in the city of Detroit on January 31, 1922, and found guilty of the crime of larceny from the person. She was sentenced to the Detroit house of correction for the statutory period of five years with a recommended minimum sentence to be served of two years. The prosecution’s uncontroverted testimony shows in outline that defendant accosted one Walter Kaufmann, the complaining witness, on Hastings street in the city of Detroit on the evening of December 20, 1921, and temptingly solicited him to accompany her to a room upstairs in a building near by. He accepted her invitation and went upstairs with her to a room where two other girls appeared on the scene and following what apparently impressed him as a too familiar reception in which he was invited to spend some of his money he shortly withdrew. On reaching the street he discovered that his purse containing about $14 had disappeared. He immediately went back upstairs and demanded it of defendant. She denied having it and, in the interview which followed, one of the other girls in the room remarked that defendant had reported she had it and told her to return it, but she repeated her denial. Kaufmann then left and started out to find an officer, going down Hastings street to Gratiot where he met and told his troubles to a policeman who accompanied him to the scene of his adventure. The policeman testified they there found defendant and another-woman. He first asked defendant where that pocket-book was and she denied having it. In the talk which followed she quarreled with the other woman who said defendant-had it, and he found it lying on the floor behind a davenport. He then arrested defendant and took her downstairs. Of the transaction he said, “I did not arrest both of them because they were fighting, I had. all I could do to take care of one. * * * I took, her (defendant) out and went downstairs so she would-n’t get hurt.” He identified the pocket-book produced in court as the one he then found, and Kaufmann identified it as his, claiming he had it in his. pocket when defendant first accosted him on, the street- and in her familiarities “patted” his pockets. The officer also testified that while he was in the room defendant raised a window and hollered out to a couple, of girls out there, “Don’t come up here any more, Emma has snitched on me for $20.” He later went back to the room for Emma but found she had gone. The officer and Kaufmann were the only witnesses for the people. Kaufmann was a young man some 28 years of age whose testimony is somewhat weakened by inconsistencies and pretensions that in his conduct he was entirely actuated by meritorious motives. He testified that he accompanied the woman upstairs to the room with no impure purpose but because he did not want to be stopped by a woman and solicited on the street, which he “thought was against the rules of the city of Detroit and he wanted to help make a clean city” of it. His story in outline was that when she met and solicited him on the street there was no one near them and when he missed his purse he remembered that she patted him on his overcoat pocket, in which he sometimes carried it, and he was sure she got his purse out of there at that time; that when he first went into the room upstairs with defendant the three women surrounded him but in that interview he so conducted himself that they didn’t get within two feet of him and he was certain he did not lose it then because he “gave .nobody a chance to get the money upstairs.” He also recalled that as he followed defendant upstairs she stumbled and he heard her drop something, which he took to be her purse and which she immediately piqked up again, that after his quick exit he discovered his pocket-book was gone when he reached the bottom of the stairs, when he at once went back and demanded it of defendant who denied having it, which one of the other girls disputed. Defendant testified as a witness in her own behalf and stoutly denied having taken the pocket-book from Kaufmann or ever having had it, but said Emma was the one who took it and then told the officer where the pocket-book was and accused defendant of putting it there. Of the friction which followed she said: “Her (Emma) and the officer had some words and she threw a glass at me and he had to hold one of us.” Under such an emergency it would seem to be for the jury to decide whether he held the right one. On cross-examination she admitted having been arrested and convicted so many times that she could not remember the number but stoutly asserted she had never been convicted of larceny. After her conviction defendant’s counsel moved for a new trial which was denied. Defendant’s assignments of error are directed to the denial of her motion for a new trial, which was based on claimed newly-discovered evidence and the weakness of Kaufmann’s testimony, in illustration of which the following excerpt is quoted: “Q. You never at any time saw your purse on this girl, did you? “A. No, sir. “Q. And you never saw her take it from you? “A. No, sir. “Q. And if that purse was taken from behind the davenport you didn’t know of your own knowledge who put it there? “A. No, sir.” Also that the court erred in instructing the jury as follows: “There are certain elements constituting every crime which must be proved, gentlemen, beyond all reasonable doubt, before a conviction may be had. The first element in the present charge is that it occurred on the 20th day of December, A. D. 1921. The people must prove that allegation beyond all reasonable doubt. In the second place they must show beyond all reasonable doubt that the next essential element has been_ proved, namely, that the crime, if any, occurred within the limits of the city of Detroit. * * * “Now, it is for you to determine, gentlemen of the jury, from the evidence in this case, first of all, whether or not the defendant, Rose Tucker, on the 20th day of December A. D. 1921, within the city limits of the city of .Detroit, committed the crime of larceny from the person. Now the person in this case is one William J. C. Kaufmann. The people allege that she took this money from his pocket, from his person. Now the complaining witness, gentlemen of the jury, is not on trial in this case. You are concerned only in the guilt or innocence of this defendant,” etc. Of the first excerpt from the charge, it is claimed that the court after attempting to define the elements of the crime committed error by failing to enumerate in that connection each and every element constituting it, and a later definition of the crime given by the court would not cure the error. An examination of the charge shows that the language quoted was but introductory to a paragraph immediately following, beginning “Now, as to the charge itself,” which explained at length with unusual clarity and accurate definition the nature of the offense charged and all the elements constituting it. Of the second quotation from the charge, it is said that the court pointing out to the jury the fact complaining witness was not on trial amounted to a suggestion that the jury should give more consideration to his testimony than that of defendant. We discover no inference to that effect in the charge taken as a whole, which carefully and impartially cautioned the jury as to their duties, explained fully the nature of the crime charged and the facts which they must find established beyond reasonable doubt before conviction could be had. The charge was eminently fair, impartial and plain. We find no error in the particulars assigned against the charge. Of the court’s alleged error in refusing to grant a new trial, it is sufficient to state that the proposed witness whose newly-discovered testimony was relied on was Julia Jones who defendant testified was present in the room at the time of the arrest and the affidavit furnished in support of the newly-discovered evidence states that the affiant “made every possible effort to locate the said Julia Jones prior to the trial of the said cause,” but upon the trial counsel made no mention to the court of any witness whom they were unable to produce, nor asked a continuance in order to secure the attendance of a witness. Granting or refusing a new trial was within the discretion of the court. There was no abuse of the discretion. There was abundance of direct evidence, if believed, to support and justify conviction. It was for the jury to pass upon the credibility of the witnesses. A careful examination of this record shows no ground for reversal. The judgment will stand affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.

Bird, J. Defendant conducts an undertaking business in the city of Detroit. On the morning of April 11, 1920, defendant was called by plaintiff, or someone in her household, and advised that an infant had died in her house during the preceding night, and he was requested to come and take charge of and bury it. Defendant’s assistant at once repaired to plaintiff’s home and found that the baby belonged to a Mrs. Lago, a married woman, who .had been a guest for several weeks at plaintiff’s home. The baby had prematurely arrived and was slightly deformed in its forehead. Mrs. Lago made arrangements with the assistant to take the baby to the funeral parlors, prepare it for burial, and inter it. The mother did not care to have a funeral at plaintiff’s house. The price agreed upon for defendant’s services was $39. Mrs. Lago accompanied defendant to the parlors, where the death certificate and other details were arranged. When she- left she advised defendant she would pay him the following morning. She did not do so, and, between the hours of 11 and 12 in the forenoon, defendant’s assistant placed the body .in the car and went to plaintiff’s house and inquired for Mrs. Lago. He was advised that she was not in. He then inquired who was going to pay for the burial. Plaintiff replied she did not know; she was not. Defendant, then said to her that he would have to have his pay or would be obliged to leave the body. The assistant then went to the car and took the container in which the body had been placed, went into the house, opened it and laid the clothing on the davenport from which he had taken the body the morning before. When plaintiff saw that he was preparing to leave the body she yielded and gave him his money, whereupon defendant replaced the clothes in the container and left plaintiff’s premises, and afterward buried it in accordance with the agreement. It is plaintiff’s claim that she was so horrified and frightened over the threat of defendant to leave the body of the deformed child that she fainted after defendant left her house, and thatTO days later she suffered a miscarriage by reason thereof, and was made sick for several days thereafter. At the conclusion of the proofs defendant requested a directed verdict, but the trial court overruled the motion and submitted the question to the jury. After considering the question for a time they awarded plaintiff damages in the sum of $500. Counsel for plaintiff make the argument that defendant was a trespasser when he went back into the house the second time to return the body, because he -went in without knocking. We have serious doubt whether this is a material fact. If he were a ‘ trespasser he was a trespasser on the real estate, and did not inflict any damage upon plaintiff’s \ person. But, in any event, we do not think he was a trespasser on the premises. In the first instance he was invited to come on the premises by Mrs. Lago, a guest of plaintiff, and with plaintiff’s consent. He was still engaged in the business for which he was invited to come onto the ' premises. On this visit he knocked at the door and ¡ was admitted. After he had talked with plaintiff and ' learned he was not going to be paid, he went out to the car to get the body to return it to the place from which he had taken it the day before. When he returned with the body he would not be expected to knock before entering, any more than a peddler would who had been regularly admitted and returned to his wagon to get some goods to exhibit. Defendant had an implied, if not an express, license to go upon the premises as he did. 25 Cyc. p. 642. It is asserted, but not argued, by plaintiff’s counsel that when defendant made this visit and returned the body he was guilty of an assault. There is nothing in the record that has been called to our attention which would support this assertion. It is not shown that defendant offered any physical violence, or that he threatened her, or that any such thing was contemplated by defendant. Unless there was a threat or offer on the part of defendant to do plaintiff physical injury, there was no assault, within the law. 3 Cyc. p. 1066. The questions of trespass and assault being eliminated, the case is so similar to Nelson v. Crawford, 122 Mich. 466, that it must be ruled by that case. In that case the defendant dressed himself in women’s clothing, put on a woman’s hat and veil, and with a parasol started for plaintiff’s house. When he arrived he tapped the floor or walk with his parasol. It attracted the attention of the plaintiff and she spoke to him but he made no answer. She was very much frightened and ran to the bedroom, where her husband was, and defendant followed her. The husband picked up a stick of wood and ordered him out, whereupon defendant spoke and made himself known. It appeared that defendant did this stunt out of a spirit of fun and- was not moved by any malicious motives, and with no intent to injure anyone. As a result of this fright plaintiff claimed she suffered a miscarriage several days thereafter. Inasmuch as plaintiff received no personal injury, it was held she could not recover damages for fright and mental disturbance. In this case Mr. Justice Grant calls attention to the fact that the courts are divided on the question whether damages may be recovered - for fright or mental anguish, where there is no physical injury. Many of the eases are reviewed in the opinion and the conclusion is reached that what defendant did was not an assault and that no damages could be recovered for fright and mental distress, because there was no physical injury. This case has been many times referred to and approved in subsequent cases, and the doctrine of that case was directly applied in Ellsworth v. Massacar, 215 Mich. 511. A leading case on the question, and one often cited, is Mitchell v. Railway Co., 151 N. Y. 110 (45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604). In that case it is said, in part: “If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest on mere conjecture or speculation. The difficulty which often exists^ in cases of alleged physical injuries, in determining whether they exist, * * * would not only be greatly increased, but a wide_ field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy. * * * We think the most reliable and better-considered cases, as well as public policy, fully justify us in holding that the plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal injury.” The case of Ewing v. Railway Co., 147 Pa. St. 40 (23 Atl. 340, 30 Am. St. Rep. 709), considers the question: “The wrong of which the plaintiff Eva Ewing complains was a collision of cars upon the railway of the defendant company, in consequence of which the cars ‘were broken, overturned, and thrown from the track, and fell upon the lot and premises of the plaintiffs, and against and upon the dwelling house of plaintiffs, and thereby and by reason thereof greatly endangered the life of the said Eva Ewing, then being in said dwelling house, and subjected her to great fright, alarm, fear, and nervous excitement and distress, whereby she then and there became sick and disabled, and continued to be sick and disabled from attending to her usual work and duties, and suffered and continues to suffer great mental and physical pain and anguish, and is thereby permanently weakened and disabled,’ etc. To this statement the defendant demurred, and the court below entered judgment for defendant upon such demurrer. This ruling is assigned as error. It is plain from the plaintiff’s statement of her case that her only injury proceeded from fright, alarm, fear, and nervous excitement and distress. There was no allegation that she had received any bodily injury. If mere fright, unaccompanied with bodily injury, is a cause of action, the scope of what are known as ‘accident cases’ will be very greatly enlarged, for in every case of a collision on a railroad the passengers, although they may have sustained no bodily harm, will have a cause of action against the company for the ‘fright’ to which they have been subjected. This is a step beyond any decision of any legal tribunal of which we have knowledge,” . ¡ This case is reported in 14 L. R. A. 666 and an. appended note discusses the cases and the variance of the courts on the question. A valuable note is also annexed to the case of Gulf, etc., R. Co. v. Hayter, 77 Am. St. Rep. 856 (93 Tex. 239, 54 S. W. 944, 47 L. R. A. 325). Whatever may be the merits of the respective rules of damage this court has aligned itself with those; courts which hold that no damages can be assessed! for fright or mental distress unless accompanied with; physical injury. The case is devoid of any evidence of assault, and, if we apply the rule laid down in Nelson v. Crawford, supra, the defendant was entitled to a directed verdict. The trial court was in error in not granting defendant’s motion. ■ The judgment will be set aside with no new trial. Defendant will recover his costs. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

Fellows, J. Running south from Carson City is a main traveled highway to Hubbardston, Matherton, Pewamo and Portland. A portion of it is on the line between Clinton and Ionia counties. As it runs out of Hubbardston, it is entirely within the township of Lebanon, Clinton county. Shortly after leaving Hubbardston the road is constructed by excavating sufficient to make a highway on the westerly side of a hill; the contour of the hill is circular and the road does not run in a straight line; the dirt bluff or bank being on the easterly side, and on the westerly side the declivity or slope runs down to the bottom lands of Fish creek. On March 22, 1920, plaintiff was in the employ of the Lewellyn Bean Company and lived at Carson City. He bought hay and grain for the company and his work took him out in the country. He owned and drove an automobile. On this particular day he left home early in the morning bound for Pewamo over this highway. In going up the highway where it was dug out of the side of the hill, plaintiff’s machine was precipitated over the. right-hand bank, rolling down hill. He received serious injuries and in this action recovered verdict and judgment for $1,500, which judgment is here reviewed by the township. It was the claim of the plaintiff that he drove carefully up the hill on the right side of the road following a rut at a moderate rate of speed and that the accident was caused by his wheel striking or dropping into a gully or ravine several inches in depth running across the highway and cut there by water flowing across the road and running down the bank, and that this threw his machine to the right, breaking a decayed and useless barrier and rolling down hill. His claim is that the gutters or ravines running across the highway were of long standing, that the barrier was decayed and useless, and that the highway was not reasonably safe for public travel. The township denied the existence of gutters or ravines running across the road, insisted that the surface water flowed to the east and down a ditch on that side of the highway, insisted the highway was reasonably safe for travel, and denied the accident occurred as plaintiff claims it did. There was testimony sustaining the claims of both parties. .• There are 63 assignments of error all of which are insisted upon and discussed. We can not, of course, .take up each one and discuss it at length, nor shall we attempt to amplify discussion of unimportant questions raised. Such questions as are apt to arise on a new trial will, however, be noticed. There was no error in receiving testimony showing the condition of this highway for several months before the accident. This testimony was admissible for the purpose of establishing constructive notice to the township officials. Nor was it error to permit the man under whom plaintiff worked both before and after the accident to testify to his disability to do as good or as strenuous work after the accident as before, or to permit plaintiff’s wife to testify that he was not as strong after the accident as before. Langworthy v. Township of Green, 88 Mich. 207. Both parties had procured photographs of the scene of the accident. These photographs have been returned. They show the old barrier; that it has been replaced by another since the accident; in fact, they disclose a substantial barrier along the side of the road when the photographs were taken. Those taken by plaintiff were identified but not immediately received in evidence. Attorneys for both parties apparently had the rule, announced in numerous cases, in mind that it is improper to show repairs by the township subsequent to the accident. Just before the plaintiff closed his case and after a recross-examination of plaintiff, his counsel, upon the theory that defendant’s counsel had opened the door, was permitted to show the erection of the new barrier after the accident. We do not understand that plaintiff’s counsel contend that primarily they had the right to show such subsequent repairs. This court has spoken frequently on the subject but the language of Justice McGrath in Langworthy v. Township of Green, supra, is particularly applicable. He there said: “Plaintiff called as a witness one Fryburg, who testified that he was overseer of highways of this road district in 1889, and who was permitted to testify, under objection, that he cut off the exposed portion of the log in June, 1889. This was error. The evident purpose was to show that the township admitted by this act the defect, the dangerous character of this obstruction, and that the road was not reasonably safe by reason of its existence. After an accident a precaution may be taken which did not suggest itself before the accident, and, in the absence of any instructions from the court guarding the jury against the use of such testimony as an admission on the part of the township, the admission of the testimony is ground for reversal.” We have read and re-read the cross-examination of the plaintiff by defendant’s counsel and we are unable to find in the record, and by it we must be bound, any cross-examination which opened the door for this proof or which dealt with the question of the new barrier or which justified the admission of this testimony. For this error the case must go back for another trial, and we deem it proper to say that should defendant introduce the photographs which are before us showing a substantial barrier, plaintiff should then be permitted to show that it has been erected since the accident, and the jury should be cautioned that such fact is not to be taken as evidence of negligence, or an admission of negligence on the part of the defendant. What we have said about the barrier is applicable to the retaining wall or pile of stone. Plaintiff’s claim that this existed at the time of the accident may doubtless be made more definite- upon another trial. The trial judge permitted the officers of defendant township to testify that they had' never heard of an accident on this hill, but declined to receive such testimony from others. Error is assigned on the latter ruling. We think it was correct. The holdings of this court have not been uniform upon the right to prove prior similar accidents at the same place for the purpose of establishing negligence. We need not review all the authorities. In Gregory v. Railway, 138 Mich. 368, it was held that such proof was only admissible to show notice. But this case was expressly overruled by the case of Woodworth v. Railway, 153 Mich. 108, in which it was held that such proof was admissible to prove negligence. However, in Larned v. Vanderlinde, 165 Mich. 464, written after the Woodworth Case, it was definitely held that negative testimony was not admissible, that it would not be competent- to prove absence of accidents to show absence of negligence. In the recent case of Werney v. Reid, 219 Mich. 257, where defendant had been permitted to testify that he had never had an accident before — evidence of habit — it was held that such testimony was not so prejudicial as to demand a reversal. Here it was sought to introduce negative testimony from residents of the vicinage that they had never heard of prior accidents at this point. Such testimony was not admissible. The questions of defendant’s negligence and of plaintiff’s contributory - negligence were for the jury under the conflicting testimony. We recognize the greater probative force of actual measurements over estimates -of witnesses, but. Mr. Belnap, the engineer called by defendant, did not make his survey until the following year, and under the well-recognized rule that the testimony and its legitimate inferences most favorable to the plaintiff must be accepted on a motion to direct a verdict against him, we agree with the trial court that the case was one for the jury. The contention of defendant’s counsel that it can not be held liable for a defective plan of construction of the highway should be noted. The cases so holding cited, by counsel were all written before the enactment of Act No. 244, Pub. Acts 1879, superseded by Act No. 264, Pub. Acts 1887. In Malloy v. Township of Walker, 77 Mich. 448 (6 L. R. A. 695), Mr. Justice Long fully considered the early cases in this court, the cases from other jurisdictions and concluded (we quote from the syllabus): “The statute requiring townships to keep their highways in repair cannot be so construed as to relieve from liability by saying that the township had adopted a method of construction, and had built according to the plan. “A municipality cannot construct a dangerous and unsafe road, — one not safe and convenient for public travel, — and shield itself behind its legislative power to adopt a plan and method of building and constructing in accordance therewith.” In the instant case the trial judge quite properly instructed the jury at the request of defendant’s counsel: “So in this case at the point of the accident where the highway extends along a high embankment, the township is only required to exercise that degree of care which common prudence dictates in view of an unusual danger, as necessary to reasonable safety in the ordinary use of the highway at that point, and in that regard I charge you that it is not necessary, at such a place, to erect guard rails or barriers sufficiently-strong to stop an automobile running at a high rate-of speed.” It is possible that the trial judge might with propriety have more fully instructed the jury as to when and under what circumstances a proper barrier should have been maintained, but, in the absence of a request for more specific instructions on that subject, we need-not discuss the question. For the error pointed out the case must be reversed with a new trial, and with costs of this court to defendant. Wiest, C. J., and Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.

Fellows, J. This- bill in equity attacks the validity of an election held on November 8, 1921, under the provisions of section 3309 et seq., 1 Comp. Laws 1915, the apparent result of which election was to annex the territory comprising the village of Oakwood to the city of Detroit. All the municipalities affected by the proceedings are made defendants together with the board of county canvassers of Wayne county. The trial judge was of the opinion that the election could not be attacked in equity, that the remedy was proceedings in the nature of quo warranto, and without considering the merits dismissed the bill. Plaintiffs’ counsel here insist that proceedings in the nature of ■quo warranto do not furnish the exclusive remedy, that a bill in equity is maintainable, and that in any «event the bill should not have been dismissed but the case should have been transferred to the law side of the court under the provisions of section 12351, 3 Comp. Laws 1915. Since the decision of this case in the court below this court has handed down opinions in Youells v. Morrish, 218 Mich. 194, and Anderson v. Levin, 218 Mich. 225. In the Youells Case we considered the effect to be given sections 13551, 13552 and 13553, 3 Comp. Laws 1915. In that case the proceedings were instituted seasonably but the municipality was not made a party, and we held that it could not be brought in by amendment after the statutory period had expired. In the Anderson Case the proceeding’s were not instituted within the time limited by the statute. In the instant case the bill was filed nine days after the election and all the municipalities affected were made parties. In the Youells Case a motion for rehearing was made in which substantially the same argument was indulged in upon the question of the exclusiveness of the remedy as is here urged by plaintiffs. The application for rehearing was denied. In both cases, as in the instant case, the contest did not involve the claims of rival candidates to an office. Both cases held that the statutory remedy was exclusive, and we are all agreed that such should be the.holding here. My associates are all agreed that this case should be transferred to the law side of the court under the provisions of section 12351, 3 Comp. Laws 1915. With some difficulty I have been persuaded to agree with their views. The statute is a remedial one and has frequently been applied by this court. Flint v. LeHeup, 199 Mich. 41; Toles v. Duplex Power Car Co., 202 Mich. 224; Courtney v. Youngs, 202 Mich. 384; City of Iron Mountain v. Waterworks, 206 Mich. 537; VonHoene v. Barber, 215 Mich. 538; French v. Mulholland, 218 Mich. 248; Banks v. Wayne Circuit Judge, 221 Mich. 147. It follows that the decree dismissing the bill will be vacated and the case remanded to the court below with instructions to enter an order transferring the case to the law side of the court. Neither party will recover costs. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Moore, J. John C. Batchelder, now dead, made a will on September 24, 1920, bequeathing to his heirs at law all his household goods and bric-a-brac, appraised at upwards of $4,000. He devised his home to the trustees of the Protestant Episcopal church for the diocese of Michigan, in trust, to hold and maintain as a home for boys, and left the residue of his estate to them to endow such home, which he desired should be named the “Sarah Clark Home” in memory of his mother. He was unmarried and had no relatives dependent upon him, and none nearer than cousins. The will was duly admitted to probate December 1, 1920, and the executor proceeded to administer the estate. Claims were ordered to be heard by the court, and there being none presented, an order was made May 19, 1921, closing the hearing of claims. The executor on July 6,1921, having paid the undertaker and sexton for the funeral expenses and the doctor for the expenses of the last sickness of deceased, filed his final account showing these payments and a due administration of the estate. On the 21st and 28th days of September, 1921, respectively, the petitioners, who were cousins of the deceased, filed petitions in the Macomb county circuit court for leave to appeal from the order admitting the will to probate. In support of their petitions they filed the affidavit of Louella Harrington. In opposi tion to said petitions were filed the affidavits of a number of the deceased’s friends, and Dr. King who attended the deceased during his last illness, Mr. Henry J. McKay, the executor who drew the will, and Mr. George L. Canfield, an attorney, who attended the hearing on the executor’s final account. The circuit judge on January 6, 1922, entered an order allowing the appeals. The petition for writ of mandamus was filed February 1, 1922, but service thereof was delayed for many months on account of the illness of Judge Tucker. The answer of the defendant, signed by a visiting circuit judge, was filed on November 2, 1922. The petitioner for mandamus claims: “(1) Petitioners did not show themselves to be without default in having omitted to claim their appeal seasonably according to law; “(2) It was not shown that justice required a revision of the case; “(3) All debt's of said estate had been paid prior to the filing of the petitions and therefore, the petitions were filed too late.” In our view of the case it will be necessary to consider only the second of these claims. The controlling statute reads: “If any person aggrieved by any act of the judge of probate, or by the determination of commissioners on claims, shall from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on .the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be. taken and prosecuted with the same effect as if it had been done seasonably.” 3 Comp. Laws 1915, § 14156. “No such appeal as provided in the preceding section shall be allowed without due notice to the party adversely interested, nor unless the petition therefor shall be filed within one year after the making of the decree or order complained of, and then such appeal shall not be allowed if the debts of said estate have been paid, or the estate distributed to the persons entitled thereto in due course of law.” 3 Comp. Laws 1915, § 14157. While the proceeding before us is not a proceeding on the merits, it was said by Justice Grant in Sanborn v. St. Clair Circuit Judge, 94 Mich, at p. 526: “It is within the power and duty of the court to whom the petition is addressed to consider both the petition and answer, and determine (1) whether the petitioner is without default; and (2) whether it appears that justice requires a revision of the case. The petition in this case sets forth sufficient to call for the exercise of this judgment on the part of the court and therefore we cannot disturb it. Smith v. Wayne Circuit Judge, 82 Mich. 93.” The sworn petitions of the petitioners bear only upon the question of their laches in not filing the petitions earlier, and require no further discussion. The affidavit of Louella Harrington bears upon the physical and mental condition of Mr. Batchelder, when he made the will, and, it is claimed, shows that justice requires that the delayed appeal should be allowed. It is claimed that the will is the result of undue influence or, mental incompetency or both. If there should be a trial upon the merits, if the same state of facts were sworn to by the affiant as a witness that is sworn to in the affidavit it would not show undue influence. See In re Ferris’ Estate, 191 Mich, at p. 144 et seq. Also In re McIntyre’s Estate, 193 Mich, at p. 279 et seq. It would have been the duty of the trial court to say that no undue influence was shown. We also think it would have been the. duty of the trial judge to instruct the jury that there was no proof of mental incompetency. See In re Weber’s Estate, 201 Mich. 477; In re Cochrane’s Estate, 211 Mich. 370. It would be unjust to subject the estate to the delay and expense of litigation upon the showing made by the petitioners. We do not think the requirements of the statute have been met, and the writ of mandamus will issue as prayed, with costs against contestants. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Moore, J. The plaintiff filed this bill of complaint for the purpose of having a judgment obtained against her and her husband in favor of the defendant on the 9th of March, 1915, set aside so far as it applied to her, and to have a levy made on her property declared void. It was the claim of the plaintiff that process was not served upon her in the suit in which judgment was obtained. The chancellor found as a fact that plaintiff was served with process and dismissed the bill of complaint. The case is brought 'here by appeal. Upon the trial it was stated by counsel for the plaintiff that, if process was served upon her, this ■case must fail. We quote from the brief of counsel: “Counsel of the plaintiff conceded on the trial of the case that the only question was whether the plaintiff, Gertie Petersen, has been served with process by which suit against her was commenced. Upon that question we have taken this appeal and insist that the evidence is overwhelmingly in favor of the plaintiff’s contention.” A brief statement of the dealings between the parties is desirable. In March, 1913, Mr. Petersen bought a farm from Mr. and Mrs. Phelps, and gave a mortgage upon it for $2,500, the proceeds of which were paid to Mr. Phelps. At the same time a second, mortgage was given by Mr. and Mrs. Petersen for-$1,100, and a note collateral to said mortgage was, given as follows: “Greenville, Mich., March 29, 1913. $1,100'. “On or before eleven years after date, for value received, I promise to pay to the order of Melvin Phelps and Eveline Phelps, his wife, and the survivor of them eleven hundred and no/100 dollars at the Greenville State Bank, with six per cent, interest, payable annually from date until paid. Payable at the rate of one hundred dollars per annum. “It is expressly agreed that if the interest money above agreed to be paid shall become due and remain unpaid 30 days the whole amount of principal and interest shall, at the option of the holder hereof, forthwith become due and collectible, according to the conditions of a certain mortgage, bearing even date herewith, and collateral hereto. The maker and indorser hereof waive notice of dishonor and protest. “Clarence M. Petersen, “Gertie Petersen.” On the same day a lease was made between Mr. and' Mrs. Petersen and Mr. and Mrs. Phelps by which the latter were to occupy some of the premises for an agreed rental, which amounts were to be applied on the principal of the second mortgage. The note and second mortgage were not paid and, January 26, 1915, Mrs. Phelps, whose husband was then dead, commenced suit by declaration, and on March 9, 1915, obtained judgment against Mr. and Mrs. Petersen for the sum of $1,205.33, and costs. The declaration was put in the hands of a constable for service, who made a sworn return on the declaration, we quote: “That on the 20th day of January A. D. 1915, he served the declaration of which the annexed is a copy, -on Clarence M. Petersen and Gertie Petersen, the defendants named in said declaration, by delivering to •each of said defendants at the city of Greenville in said county of Montcalm, a true copy thereof; and of The annexed copy of note and the notice relating Thereto, together with a true copy of the notice to appear and plead attached thereto, as hereto attached.” It was the claim of Mrs. Petersen that this return was not true and that she was not in Greenville on the 20th of January, 1915, but that she was at home on that date. She so testified and some of her relatives testified to the same effect. Upon the trial the constable was sworn and testified that his return on the declaration was' true. It was admitted that Mr. Petersen was served with process' as stated. The chancellor had no difficulty in reaching the conclusion that Mrs. Petersen was personally served with process and a careful reading of the record leads us to the same conclusion. See Allured v. Voller, 112 Mich. 357; Miller v. Smith, 115 Mich. 427 (69 Am. St. Rep. 583); Rorabacher v. Walsh, 170 Mich. 59. The decree is affirmed, with costs to the appellee. Wiest, C. J., and Fellows; McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Bird, J. In August, 1918, plaintiff obtained a decree of divorce against defendant in, the Wayne circuit court, on the ground of extreme cruelty. The decree gave plaintiff the custody of their adopted child, Mary, who was then 2 years of” age, until she should arrive at the age of 14 years. The decree further provided that defendant should pay to plaintiff $4 a week for the care and support of said child. For a time defendant complied with this order, but finally ceased altogether to make payment, and plaintiff secured an order of court directed to him to show cause why he should not be deemed guilty of contempt of court for' his failure to pay alimony for the support of the child. Defendant’s answer to this order was the filing of a motion to modify the decree by striking out all reference in the decree to the adopted child. This was the only cause shown. This motion was denied and defendant has appealed. Two questions are raised: (1) That the statutory authority to award alimony does not include the right to award alimony to adopted children. (2) That the adoption proceedings were invalid. Section 11407, 3 Comp. Laws 1915, provides that upon granting a decree of divorce, “the court may make such further decree as it shall deem just and proper concerning the care, custody and maintenance of the minor children of the parties.” And section 11414 empowers the court to “award alimony to the wife and such children of the marriage as shall be committed to her care and custody.” Defendant’s, argument is that the language of the statute “such children of the marriage” does not include adopted children. The adoption statute provides : “Whereupon such child shall, in case of a change of name, thereafter be known and called by said new name, and the person or persons so adopting” such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.” 3 Comp. Laws 1915, § 14142. If we close our eyes to all other statutes except the alimony statute, defendant’s construction is probably a reasonable one. But in construing it we must construe that statute in connection with the adoption statute, and when we do, there is not much difficulty in arriving at the conclusion that adopted children should be construed to be within the meaning of the word “children” in the alimony statute. In passing the adoption statute the legislature evidently intended, in so far as language would make it possible, to place the adopted child in the family in the same position as the natural child. When we keep this view in mind in reading the two statutes it becomes a reasonable construction to say that an adopted child stands in the same relation to the parents as the natural child. When defendant consented to the adoption proceedings he obligated himself to care for and support the little girl, Mary. When, and how, and by what means, has he been relieved of this obligation? The fact that his wife secured a divorce from him would not relieve him of that duty, neither would the fact that the little girl lives with the mother after divorce relieve him of her support. The decree of the court did not relieve him, it simply provided the qucmtum of support which he should furnish and the times within which he should furnish it. This obligation upon the part of defendant rests upon him in no different way than as though Mary was a child of his own blood. The alimony statute must be construed as including adopted children as well as natural children. The adoption statute provides that: “Such adoption, and in case a change of name is desired, such change of name, shall be with the consent of the persons hereinafter described, viz.: “1. In case the parents of such child, or either of them, are living, then with the consent of such parents or the survivor of them; “2. In case such child is abandoned by one of its parents, then with the consent of the other parent; “3. In case such child be illegitimate, then with the consent of its mother.” 3 Comp. Laws 1915, § 14139. The records of the probate court show that “Helen Layman, mother and only parent” consented to the adoption. The point made against the validity of this consent is that it does not show under which of the three heads of the foregoing statute it belongs. If Helen Layman was the only parent the child had, it is quite reasonable to infer that her paternal parent was dead. The plain inference from this statement brings it clearly within the first subdivision. The mere fact that the petition is not in the exact language of the statute would not invalidate the consent if such facts were stated therein as would bring the case clearly within one of the three grounds. This objection must be overruled. These conclusions are in keeping with the conclusions arrived at by the chancellor, and his order will be affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ., concurred.

Clark, J. This case is reported in 209 Mich. 497, which see. There a new trial was granted unless plaintiff chose to remit a judgment of $3,311.28 to $2,148.36. Plaintiff did not remit. A second trial resulted in a verdict and judgment for plaintiff for $3,221.44. Defendant brings error. Plaintiff owned certain patents for automobile bow sockets. A contract of May 8, 1917, in consideration of a royalty of 6 cents per set, gave defendant the exclusive right “to manufacture the above mentioned socket, under ithe above mentioned patents, also any improvement heretofore made upon the same, and any improvement that may hereafter be made.” * * * The important patent covered a five-bow socket, of which there was no production, there being no demand. There was a demand for four-bow sockets. So the five-bow design was modified and reduced to a four-bow. The four-bow socket was in existence on May 8th when the contract was made. Its manufacture was contemplated. Defendant exhibited it to a customer and secured, on May 15th, a contract to manufacture it. It was made and supplied to the trade. Defendant paid royalty to plaintiff. On June 24, 1918, defendant notified plaintiff that it would not further recognize the contract, that it had never used or manufactured the device covered by the patents, and that the royalty paid had been paid under mistake. It is conceded here that defendant, having recognized the contract and proceeded under it, is liable for unpaid royalties up to June 24, 1918, in the sum of $2,267.28. The question submitted to the jury was stated by the trial judge: “Now, it is conceded here by the defendant that it is liable for the sockets manufactured and sold by defendant up to June 24, 1918, at which time the defendant company sought to terminate the contract between the parties; and the question for you to determine, gentlemen of the jury, is whether or not there :’is any liability on the part of the defendant company '.for the sockets manufactured and sold by defendant .'from June 24, 1918, until the commencement of this ‘suit, on August 26, 1918. The determination of that question, gentlemen of the jury, and that presents practically the single issue of fact for you to determine, depends upon your answer to this question: Did Mr. Schimmel, as claimed by the plaintiff, in behalf of the plaintiff, suggest the reducing of the five-bow top to a four-bow; top, and acting in conjunction with Warren Stoller, an employee of the defendant, using the five-bow socket as a basis, work out the reduction of this five-bow top to a four-bow top? The plaintiff claims in this case that he did; while the defendant insists that the four-bow top was the product of Mr. Stoller, an employee of the defendant company, assisted by Mr. Rathbun of the defendant company, and the defendant makes the claim that before Mr. Schimmel did anything in connection with the matter, if he did do anything toward the development of the top in question, that Mr. Stoller, the defendant’s employee, had had prepared a drawing of the four-bow top, and had consulted a patent lawyer with a view to obtaining a patent thereon, and that he had transferred his interest in the invention to the defendant company. “Was this four-bow top a product of Mr. Schimmel on behalf of the plaintiff company, as claimed by the-plaintiff, or was it the product of the combined efforts of the employees of the defendant company? “Upon your answer to that question, gentlemen of the jury, will depend your verdict. Upon your answer to that question will depend whether the plaintiff is entitled to recover for the sockets manufactured and sold after June 24, 1918. If this four-bow socket was the product of Mr. Schimmel, as claimed by the plaintiff, then your verdict will be for the plaintiff for the full amount of its claim, namely, $3,221.44, which represents the sockets manufactured and sold by the defendant company up to the time of the commencement of this suit, with interest. If it was the product of Mr. Stoller, or the product of Mr. Stoller and others, acting for the defendant company, then your verdict will be for the plaintiff for the sum of $2,267.28, which represents the royalty on the sockets manufactured and sold by the defendant company to June 24, 1918. “If one is the owner of an invention or device, another, person may contract with him to pay him a royalty for the use of this invention or device, whether or not such invention or device is patented.” There was evidence to make the issue indicated in the charge of the court. The jury found that the four-bow device was the invention of plaintiff. It is also indicated that in making the contract the parties contemplated the manufacture and sale of such device. The language of the contract “and any improvement heretofore made” should be.noted. In the former opinion we said: “We have already seen that the patents mentioned in the contract did not cover the sockets which were in fact made. It must be assumed that the reference in the contract to the patents had some purpose.” And— “In the instant case after the contract was made both parties acted under it until defendants gave notice of rescission. We think, under the facts disclosed by this record, they had a right to give this notice, and that they should pay royalties up to the time of the rescission.” It is urged that such former opinion is the law of the case. But the record here is substantially different. Here there is definite and positive evidence that the four-bow device was the invention of plaintiff and that its manufacture was contemplated by the contract. The rule of the law of the case may not be applied to a substantially different record. See Mutual Life Ins. Co. v. Hill, 193 U. S. 551 (24 Sup. Ct. 538); Winkleman v. City of Adrian, 151 Mich. 519; Porth v. Cadillac Motor Car Co., 209 Mich. 92; American Ins. Co. v. Martinek, 216 Mich. 421. And upon the facts of this record the trial judge properly held in denying a motion for judgment notwithstanding the verdict: “The record on the second trial is the same as on the former with one exception. At the second trial proof was introduced to the effect that one of the plaintiff’s officers was the inventor of the device which it was determined was being manufactured and sold by defendant under the contract between the parties. This claim was disputed by defendant and the issue was submitted to the jury, who found for the plaintiff. The situation thus presented is as follows: The parties entered into a written contract by which defendant agreed to pay a certain royalty on a device covered by certain patents held by plaintiff. The device contemplated by the parties and actually manufactured by defendant was not covered by the patents ¡referred to in the contract. The device which defendant is manufacturing is the invention of plaintiff, an unpatented device. The inventor of an unpatented device may make a valid contract for its manufacture, use or sale. It is no objection to thy validity of such a contract that any person may manufacture it until the patent is issued. The vendee or licensee, in the absence of fraud or mistake, must abide by his conduct. Tiffs is a matter of contract between the parties.” On the record here presented defendant appears to have been without right to give the notice of rescission of the contract. See Hamilton v. Park & McKay Co., 112 Mich. 138; Hall Manfg. Co. v. Supply Co., 48 Mich. 331; Atlas Press Co. v. Eames, 206 Mich. 588. Other questions are suggested by counsel, but we find no reversible error. Judgment affirmed. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Bird, J. Plaintiffs filed their bill in the Wayne circuit court to abate a nuisance alleged to have been created by the defendant in the vicinity of their dwelling. Relief was denied and the bill dismissed. Plaintiffs appeal. Plaintiffs were the owners of a two-family flat known as 1030 Forrest avenue, east, in the city of Detroit. They occupied one of the flats and rented the other one. To the west of plaintiffs’ lot is a public alley 25 feet in width and west of the public alley are the lots occupied by defendant as a creamery plant. When plaintiffs purchased their property there there was one residence immediately west of the alley, but those premises were purchased by defendant and the house moved therefrom. Now defendant’s premises bound the alley on the west, and plaintiffs’ premises are on the east, their house being situate within 2 feet of the alley. About a year after plaintiffs purchased their premises defendant bought some lots on that block and established its creamery. Since that time defendant’s plant has gradually expanded and absorbed other lots. Defendant has a capital of $750,000 and does a large business. It has 75 routes over which it delivers milk. It delivers milk to 20 independent dealers for their routes. It employs a large number of men, operates between 90 and 100 vehicles, some of which are automobiles and some are wagons. It uses in its business a large number of milk cans, bottles and cases. It turns out about 2,500 cases of milk every morning. It maintains in the plant a conveyor which conveys the milk from the plant to the loading platform. To the south of the plant and plaintiffs’ premises it maintains the barns for its horses. The testimony shows that the active work with trucks and wagons commences about 12:30 at night and increases in activity up to 2:30 or 3- o’clock a. m., when the maximum is reached, and then continues on until between 7 and 8 in the morning. Heavily loaded auto trucks come in over the paved alley and unload and then reload with empty cans. Horses and wagons to carry the milk over the 75 routes are gotten ready around 3 o’clock in the morning and they load up their milk and drive out over this paved alley within 2 feet of plaintiffs’ house. The milk cans are thrown against each other and the clinking of bottles is heard when the men are loading up or returning the bottles. In addition to this activity the men are talking to each other in a loud voice in order to be heard. Some of them swear at their restless horses. Automobiles are started and stopped and some of them are left running during the process of loading, and the smoke and bad odor work their way into plaintiffs’ house in the warm weather when the windows are up. The plaintiffs allege that this intense activity keeps them awake at night; that they are frequently awakened by this medley of noises and are afterwards unable to sleep again by reason of them. That the deprivation of sleep has had an unfavorable effect on their health and produced nervous disorders to such an extent that plaintiff lost his position by reason of it. Plaintiffs further complain that by reason of the noise they are unable to rent the other flat in their house; that their tenants would remain only for a short time because they could not sleep. This claim was verified by several ex-tenants appearing as witnesses and testifying to the fact. Several other witnesses, some of them neighbors, testified to the boisterous manner in which the work of the plant is carried on. Other witnesses appeared for defendant and gave testimony modifying to some extent that given for plaintiffs. At the conclusion of the proof the chancellor announced the following conclusion: “The Court: I will find as a fact, and as a matter of record, that the conditions as shown by the evidence to have existed do constitute a nuisance, and I do think this should be so changed and modified by a decree as to abate in a degree the nuisance that now exists.” The chancellor concluded, however, to give defendant an opportunity to better conditions, and suggested that a shed be built over the paved alleyway between plaintiffs’ house and the creamery. The case was adjourned and this suggestion was acted upon. A shed was built, and further proof was then taken as to its efficiency. At the conclusion of the adjourned hearing the chancellor denied the relief prayed for and dismissed plaintiffs’ bill. The question presented is whether these disagreeable noises in the night time in such close proximity to plaintiffs’ dwelling constitute a nuisance which should be abated by injunction. In considering the question whether noises furnish a ground for injunctive relief it is observed in R. C. L. that: “The authorities are numerous which hold that noise alone, or noise accompanied by vibration, if it be of such character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance, and be the subject of an action at law, or an injunction from a court of equity, though such noise and vibration may result from the carrying on of a trade or business' in a town or city. To have this effect the noise must be unreasonable in degree; and reasonableness in this respect is a question of fact depending on the character of the business, the manner in which it is conducted, its location and relation to other property, and the other facts and circumstances of the case. The number of people concerned by the noise and the magnitude of the industry complained of are both elements-entitled to consideration in reaching a conclusion as to the fact. And, again, the time at which noises are made is an element to be considered in determining whether a noise constitutes an actionable nuisance. A noise incident to the operation of machinery during the day may not be a nuisance, while the same noise during the usual sleeping hours of the night would constitute a nuisance. And noises- made on Sunday may constitute a nuisance though they would not have been such if made on a weekday.” 20 R. C. L. p. 445. In the case of Reilley v. Curley, 75 N. J. Eq. 57 (71 Atl. 700, 138 Am. St. Rep. 510), it is said: “The next question is whether noise alone may constitute such a nuisance as to subject the one creating the same to restraint in equity. That such is the case I am convinced from the authorities, not only in our State, but in many other jurisdictions. “Of course, the character and volume of the noise, and the time and duration of its occurrence, and the place where it occurs, and the surroundings thereof, are the important and determinative features. Davidson v. Isham, 9 N. J. Eq. 186; Wolcott v. Melick, 11 N. J. Eq. 204 (66 Am. Dec. 790); Ross v. Butler, 19 N. J. Eq. 294 (97 Am. Dec. 654); Cleveland, v. Gaslight Co., 20 N. J. Eq. 201; Demurest v. Hardham, 34 N. J. Eq. 469; Cronin v. Bloemecke, 58 N. J. Eq. 313 (43 Atl. 605); Gilbough v. Amusement Co., 64 N. J. Eq. 27 (53 Atl. 289); Laird v. Sanitary Co., 73 N. J. Eq. 49 (67 Atl. 387); First M. E. Church v. Grain Coal Co., 73 N. J. Eq. 257 (67 Atl. 613); Powell v. Furniture Co., 34 W. Va. 804 (12 S. E. 1085, 12 L. R. A. 53, with numerous cases in the notes); Hill v. Fertilizer Co., 112 Ga. 788 (38 S. E. 42, 52 L. R. A. 398); Froelicher v. Oswald Ironworks, 111 La. 705 (35 South. 821, 64 L. R. A. 228); Herring v. Wilton, 106 Va. 171 (55 S. E. 546, 7 L. R. A. [N. S.] 349, 10 Ann. Gas. 66, 117 Am. St. Rep. 997); 2 Wood on Nuisances (3d Ed.), § 611.” In 1 Spelling on Injunctions (2d Ed.), § 431, it is .said: “Noises which tend to disturb rest and quiet in the neighborhood may be restrained. * * * To warrant an injunction against a noise as a nuisance it must be shown that the noise is such as to produce actual physical discomfort to a person of ordinary sensibilities, and is unreasonably and unnecessarily made.” In the case of Herring v. Wilton, supra, the plaintiff filed suit to restrain defendant from keeping a kennel of dogs 125 feet from his premises on account of the whining of the puppies and the barking of the •dogs at night. The claim was that the whining and barking kept plaintiff’s family awake at night, and •deprived them of their rest. After a hearing the noises were declared to be a nuisance and a decree was made abating them. The case of Mitchell v. Flynn Dairy Co., 172 Iowa, 582 (151 N. W. 434, 154 N. W. 878), the relative positions of the dwelling and creamery were the same as here. The noises complained of were similar, the time of night when the noises were made was the same, and the controlling questions are the same. It was said, in part: “We have already set forth the general nature of the noises complained of in the petition. This branch of the case discloses just grounds of complaint by plaintiffs. In considering this question, two prominent facts of great aggravation stand forth. One is the night operation of the plant, and the other is the use of the west alley by the defendant. This alley was paved. It was a public alley, but it was practically appropriated by the defendant to its private use, and thereby made a part of its private plant. The alley extended originally • to the south line of plaintiff’s lots. The defendant, however, built a shed across the south end thereof. The alley was so connected with the building as to make a continuous drive from the north end of the alley south, then east into the buildings, then north along an inside driveway. Bottles of milk and cream were loaded or unloaded from the wagons standing in this alley. This work began at 1:30 in the morning, and continued at short intervals into the forenoon. The teams thus standing were within a few feet of the sleeping rooms in the residence of Jaderstrom. Profane (and sometimes obscene) teamsters did their part to disturb all nearby sleepers. It is needless to argue that such a situation would utterly destroy all opportunity for rest in such adjacent dwelling. On the east side was the other unloading platform, and similar noises there disturbed the rest of the Mitchells, 100 feet away. In addition to this, at various hours of the night and day, was the steam exhaust and the operation of the ice crusher. Seven or eight hundred thousand pounds of ice per month were hauled into and out of the shed before referred to. In the meantime, it was passed through the ice crusher. - There were times when the alley was so congested that cans and bottles of milk were unloaded upon the sidewalk on University avenue. This tended to the increase of the disturbance of persons on the north side of that street. Where so many teams are brought to a stop at the same place every day, it is easily credible that a condition of nuisance would arise as a result of the manure and urine of the horses. This is especially so as to the alley. To a lesser degree, the same thing would be true of University avenue, whenever it was used for unloading purposes.” And the court found the charge of nuisance sustained and ordered an abatement of them. See, also, note to Powell v. Furniture Co., supra; Stevens v. Rockport Granite Co., 216 Mass. 486 (104 N. E. 371, Ann. Cas. 1915B, 1054, and note). le are persuaded that the first impression of the chancellor in the present case was the correct one. The subsequent testimony as to the efficiency of the shed does not convince us that the noises have been abated or modified to any extent by reason of the structure. A statement of the relative positions of plaintiffs’ house and defendant’s creamery, supplemented with defendant’s recital of the activities of the plant during the night, is sufficient to establish the fact that it is a nuisance as to plaintiffs and their tenants. It would be well nigh impossible to have 90 vehicles consisting of automobiles, trucks, horses and wagons with their attendant noises moving about on a stone pavement, soon after midnight, within 2 feet of one’s house without creating a disturbance which would affect the slumbers of normal people. We think the proofs, which are not disputed, establish the fact that these noises have affected the peace and health of plaintiffs and deprived them of several tenants. Defendant is conducting a large and important industry and has a large investment in its plant, but these facts do not authorize it to establish its plant in a residential section of the city and so operate it at night as to deprive those living in close proximity of a reasonable and normal use of their property. Whether defendant can change its operation in a way to avoid this nuisance is for the company to solve. Reasonable time should be granted it to accomplish it if it can, but, in any event, the nuisance must be abated within a reasonable time. The decree is reversed, and one must be entered in conformity to this opinion. Wiest, C. J., and McDonald, Sharpe, and Steere, JJ., concurred with Bird, J. MOORE, j. For the reasons stated by the chancellor, I think the decree should be affirmed, with costs to the appellee. Fellows and Clark, JJ., concurred with Moore, J.

Bird, J. In 1919 Margaret Petrovich lived with her daughter Agnes and two other children in the city of Detroit. Differences arose between her and her husband and he went away. Learning that he was at some point in the State of Ohio she left her children in care of a Russian family, and went to search for him. When she returned she could not find her children. After some inquiry she learned that the defendant society, whose object was to look after dependent and neglected children, had taken them. After a time she secured a return of two of her children, but the defendant refused to release Agnes. After making many unsuccessful efforts to secure the custody of Agnes, she employed counsel and filed a petition in the Wayne circuit court for a writ of habeas corpus. The matter came to a hearing and petitioner established the fact that she was the mother of the child and that the custody of Agnes had been granted to her by the Wayne circuit court in a divorce proceeding. She also established the fact that her residence was in Wayne county. Defendant society sought to justify its refusal to surrender the child because of certain proceedings had in the juvenile division of the probate court adjudging the child a dependent and neglected child, and committing her to the care of the defendant society. It was shown by the society that after a period of probation it had placed Agnes in the family of Mary DeVoy, and that an adoption had taken place and the child’s name had been changed to Alice DeVoy. The records and files of the proceedings in probate court were offered in evidence by counsel representing de fendants. The files disclosed a summons directed to the parent or the mother, but there was no return indorsed thereon. At the conclusion of the proofs the trial court found as a fact that the petitioner, Margaret Petrovich, was a resident of Wayne county when the proceedings were had in probate court. It was conceded that no service of the summons was had upon her. The commitment of Agnes by the probate court was found invalid because the provision of the statute in such cases had not been followed, in that no summons had been served on petitioner, the child’s mother. The proceedings are in this court for review on a writ of certiorari. The findings of fact of the trial court that Margaret Petrovich was the mother of the child, and was a resident of Wayne county at the date of the proceedings, were amply supported by the testimony, and, as we understand, is not seriously denied. The further fact as shown by the probate court files and the testimony of petitioner that no summons or notice was served upon the mother was also found by the trial court. The conclusion of law reached by the trial court that the proceedings in probate court were void because of the want of service of the summons is supported not only by the statute but by the holding of this court (1 Comp. Laws 1915, § 2035; In re Paulson, 212 Mich. 502). In the case cited, where a similar question was involved, it was said: “Section 2015 in plain terms requires a summons to be issued, setting up the substance of the charge and the time and place of hearing. If the parents have the custody of the child, the summons must be served on them. If the child is in the custody of another, then notice must be served on the parents. Both of these statutory requirements are jurisdictional, but neither of them appear from the record to have been complied with.” Counsel has prepared an elaborated brief discussing the question whether the probate court is an inferior court or a superior court within the meaning of our Constitution and laws. This was done for the purpose of elaborating the distinction between the presumptions of jurisdiction which arise in a superior court and in an inferior court. He states the distinction, as follows: “I understand the-rule of presumption of jurisdiction to be that in the case of a superior court this jurisdiction is protected against collateral attack unless the records show affirmatively a lack of jurisdiction, while in the case of inferior courts such records must, as a general rule, show jurisdiction affirmatively to justify such immunity.” If it were important it could be said that Mitchell v. Bay Probate Judge, 155 Mich. 550, is an answer to his contention that the probate court is a superior court, but it will be of no avail in this controversy to enter upon a discussion of that question, because the trial court had before him the files and records of the probate court, and he determined that they showed upon their face a lack of jurisdiction in that the summons required by the statute had never been served, and that no attempt had been made to serve it. This finding would be sufficient to avoid the proceedings in any court. It is said by counsel that no writ of certiorari was issued by the trial court to bring the records and files of the probate court into the circuit court. This is not important. They were before the trial court and counsel himself offered them in evidence. The trial court was right in its conclusion and the writ of certiorari must be dismissed. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Moore, J. The defendants were partners at Grand Rapids, Michigan, in the tire business for about ten years prior to January 9, 1920, when they dissolved partnership. Mr. Noble purchased Mr. Bissell’s interest and continued the business under the trade name “The Grand Rapids Vulcanizing Company.” No direct notice of the dissolution was given by the partners to the plaintiff. Mr. Noble assumed the partnership debts, but this fact was not directly communicated to the plaintiff, who sold goods to the partnership. After the dissolution but before the plaintiff had notice of it the defendant Noble, who seemed to be in charge, of the business, issued two trade acceptances, amounting to $7,434 each, in favor of the plaintiff. These were dated January 17, 1920, and were due, one on May 15th, and one on June 15, 1920. Mr. Noble continued to buy goods of the plaintiff after they had knowledge of the dissolution, and covered these later purchases with other trade acceptances. On May 15th the first trade acceptance of $7,434 was paid. About the 1st of June, Mr. Noble went to Akron and told the plaintiff that he would not be able to pay the other trade acceptance of $7,434 which was coming due, and the trade acceptance of $1,232.75 which would mature on the 15th of June, covering his individual purchases. It was there arranged that these two acceptances were to be “recalled” from the banks, where they had been discounted, and Mr. Noble was to give to the plaintiff two new acceptances, one for $4,333.37, due August 15th, and one for $4,333.38 due on the 15th of September. When Mr. Noble got back to Grand Rapids he sent these acceptances to the plaintiff by mail. Afterwards and on August 15th, Mr. Noble paid the acceptance then due, amounting to $4,333.37. The other trade acceptance given June 4th, and due September 15th, was never paid and together with the old acceptance was in the hands of the plaintiff at the time of the trial. Suit was brought by the plaintiff. At the close of the testimony counsel for the defendants moved for a directed verdict, claiming that what was done between Mr. Noble and Mr. Fouse representing the plaintiff released Mr. Bissell from liability. The court overruled the motion and submitted the case to the jury. Verdict and judgment in the sum of $4,110.75 for the plaintiff were entered. The case is here by writ of error. Counsel for the appellants claims: “(1) That the trade acceptances of June 4th, due August and September 15th were given and received in payment of the trade acceptance for $7,434 on which the suit was brought. “(2) That the trade Acceptances of June 4th, due August and September 15th, were forwarded to the plaintiff on condition that the old trade acceptance be returned and that consequently the retention of the new acceptances requires a surrender of the old. “(3) That the retention of the new acceptances of June 4th, coupled with the receipt of the payment of one of them in full on August 15th is inconsistent with an existing liability on the old acceptance and that the legal result was the payment of the old acceptance.” The pivotal question in the case is stated by counsel for the appellants as follows, we quote from the brief: “The main issue between the parties is whether this issuance by Mr. Noble and the acceptance by the plaintiff of these two new trade acceptances was a payment of the old trade acceptance of $7,434, on which the suit was brought, or whether that transaction amounted to a renewal merely so as to leave both of the partners responsible for the payment of it. * * * “The question involved in this case is whether or not there was an agreement to receive the new acceptances as payment. The court held as a matter of law that there was no such agreement and consequently no question of fact on that issue for the jury.” It is the claim of the plaintiff that at the time the two acceptances of $4,333 were received it had no knowledge of the. fact that it had been agreed between Mr. Noble and Mr. Bissell that Mr. Noble was to pay the debts of the partnership, and had no thought of releasing Mr. Bissell from the debt. The trial judge gave the jury a long charge in which 'he evidently attempted to cover every phase of the ■case which it was proper for them to consider. We quote some of the charge: "‘By agreement between counsel^ all other computations and questions have been eliminated; the defendant asks for no set-off or consideration for other items that have been mentioned here, and the plaintiff asks for no other items of recovery other than this quarter of “the original $14,868, together with interest on that from June 15, 1920. “The defense by the defendants to the claim of the plaintiff for recovery is. that at the time of the dissolution of this partnership Mr. Noble agreed to pay .-all the debts and obligations then existing, and in •consideration therefor and for some other sum besides !Mr. Bissell turned over the entire assets of this co-partnership to Mr. Noble. Now, .no notice was given directly by the defendants or either of them to the plaintiff of this dissolution of copartnership, but notice did come to the plaintiff on the 29th of January, 1920, that these two men had dissolved their copartnership. The two trade acceptances of $7,434 each were made by Mr. Noble in the name of the original copartnership, Grand Rapids Vulcanizing Company, on the 17th of January, 1920, and this was before the plaintiff had any notice that they had dissolved. Therefore, the defendants were jointly liable upon'these trade acceptances the same as though they had been issued before any attempt on their part t<5 dissolve .had been made. Now, as I say, one of these trade acceptances originally given was paid and the other was hot paid, and the time for payment was extended upon it. “Mr. Bissell claims and Mr. Noble, too, that after the plaintiff knew that they had dissolved partnership and had sufficient facts and circumstances in hand from which they either knew or should have known, had they acted diligently and with reasonable caution, defendants claim that the plaintiff knew that Mr. Noble was continuing the business and was liable for its debts and obligations, and that Mr. Bissell was. not — had an arrangement with Mr. Noble whereby Mr. Bissell was released from obligation of the co-partnership debts, and by reason of that fact, the defendants here claim that the plaintiff by extending time for the payment of his second trade acceptance; dismissed Mr. Bissell from legal liability in the matter. “The plaintiff claims that they had no knowledge.- and no fact or circumstances from which they could, be held to know or to infer or to put them upon their guard, that' there was any arrangement between these two partners who had attempted to dissolve whereby one of them became a principal to the other one a surety as to their relations towards their obligations; .and that is the issue in this case for your determination from all the circumstances — yes, from all the circumstances in the case, did the plaintiff know or were they chargeable with knowing, considering what they did know,‘that the defendants had had an arrangement between themselves whereby Mr. Bissell was relieved from the debts of the copartnership, and in the extending of the time for the payment of this trade acceptance, and with the dealings with Mr. Noble after the dissolution, did the plaintiff in what it did have such knowledge as to this agreement of dissolution between the parties and of Mr. Noble to pay the debts and extend the time, do such acts in regard to the dealings between the'plaintiff and the defendant Mr. Noble and the Grand Rapids Vulcanizing Company as to release Mr. Bissell from liability? “Under the uniform partnership act of 1917 of Michigan, paragraph 3, section 26, it is provided that where a person agrees to assume the existing obligations of a dissolved partnership, the partner whose obligations have been assumed shall be discharged, from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature of time of payment of such obligation. * * * “Unless the defendants have satisfied you by a preponderance of the evidence that the plaintiff knew of this agreement or with reasonable care and diligence prompted by what the plaintiff did know the plaintiff should have known of the agreement by Noble to pay the debts of the copartnership, then the extension of time on the payment would not release Bissell and he would be liable with Noble for the balance of this partnership debt. * * * “And in this case as between the partners Noble and Bissell with the agreement that they had that Noble should pay all the debts, the relation of principal and surety existed after the dissolution of the partnership so far as the debts of the partnership were concerned. Noble became the principal debtor and Bissell became his surety, and any creditor without the consent of Bissell who gave an extension to Noble with knowledge of the fact that Noble had agreed to pay the debts of the partnership thereby releasing Bissell from any liability to him. * * * “In determining the question of fact submitted to you as to this knowledge on the' part of the plaintiff as to this agreement, you are not restricted to direct evidence of knowledge or notice on the part' of the plaintiff of such an agreement, but it is within your power to say whether an honest inference from the facts that have been proved is that the plaintiff did or did not know or did or did not have notice that Noble* had agreed to pay the debts of the partnership. Of course, if the plaintiff, did not have knowledge that Mr. Noble agreed to pay the debts of the partnership, then the plaintiff did not waive the right'to bring action against Mr. Bissell aftd Mr. Bissell is not released. * * * “So in this case you will determine that one question of fact, first, whether or not from the evidence in this Case it is established by the defense that the plaintiff did have knowledge of. ike agreement between Mr. Noble and Mr. Bissell that Mr. Noble .should pay the debts of the copartnership. If there was such knowledge on the part of the plaintiff, if the defense has established that fact by evidence wkich preponderates in favor of the defense that the plaintiff did have such knowledge that Mr. Noble was to pay the debts of this copartnership and with that knowledge extended the time for payment of this trade acceptance of $7,434, then that act would release and discharge Bissell from liability under that trade acceptance or from liability in this suit; and if the plaintiff by such act extended the time, having knowledge of this agreement between Noble and Bissell that Noble was to pay the debts and discharge Mr. Bissell from liability, then the plaintiff cannot recover in this case and your verdict will be no cause of action. “If the time was extended for the payment of that unpaid seventy-four hundred and thirty-four dollar trade acceptance without knowledge on the part of the plaintiff that there was an agreement on the part of Noble to pay these debts of this copartnership upon dissolution, then the plaintiff is entitled to recover. The burden is not upon the plaintiff to show that it did not have knowledge of this agreement, but it is upon the part of the defense to show that it did have knowledge of this agreement. “As I have said and counsel have argued, the conditions in this case were quite complicated, the affairs, the accounts, but by agreement between counsel as they have argued to you, and as I have already stated to you, the issue here is whether or not the plaintiff is entitled to recover $3,717; and if, in accordance with the rules that I have given you, you find that the plaintiff is entitled to recover, your verdict will be that the plaintiff is entitled to recover for the $3,717, together with interest thereon at six per cent, from the 15th day of June, 1920, which has been computed here that the interest is $393.75, making a total of $4,110.75. Of course you do not have to take anybody’s computation as to the amount of interest. You may compute it yourselves. But if the plaintiff is entitled to recover, it is entitled to recover a judgment against both the defendants in the sum of $3,717, together with interest from June 15, 1920, at six per cent.” Some of the provisions of the uniform partnership act, so-called, are germane to the case we are considering. We quote: “Section 36. (Effect of Dissolution on. Partner’s Existing Liability.) “(1) The dissolution of the partnership does not of itself discharge the existing liability of any partner; “(2) A partner is discharged from any existing liability upon dissolution of the partnership by an agreement to that effect between himself, the partnership creditor and the person or partnership continuing the business; and such agreement may be inferred from the course of dealing between the creditor having knowledge of the dissolution and the person or partnership continuing the business; “ (3) Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership1 who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligations.” * * * Act No. 72, Pub. Acts 1917, § 36 (Comp. Laws Supp. 1922, § 7966 [36]). We think the controlling question in the case was one of fact, and that it was properly submitted to the jury. The judgment is affirmed, with costs to the appellee. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Moore, J. The facts are stipulated as follows: “The relator was employed by a properly authorized agent of the street railway commission of the city of Detroit on November 10, 1920, as a lineman, and that on the 26th day of November, 1920, he was discharged from this employment by said commission. That the relator was at that time, and now is, an honorably discharged veteran of the European war, having served in the navy of the XJnitéd States of America; is a resident of the city of Detroit, Wayne county, Michigan, and had been at the time of his employment a resident of said city for upwards of two years. “That the relator started suit in the Wayne circuit court against the respondent under section 1041 of the Compiled Laws of 1915' of the State of Michigan, as amended by Act No. 224 of the Public Acts of 1919 of the State of Michigan (Comp; Laws, Supp. 1922, § 1041), praying for a writ of mandamus to compel his reinstatement and the payment of money due him for the period from November 26, 1920, until the time of the filing of his petition for said writ. That the said cause came on for hearing, and as a result thereof a writ of mandamus ordering the reinstatement of the relator was issued out of and under the seal of the court on the 6th day of April, A. D. 1921, but the trial court refused in that proceeding to adjudicate the matter of any moneys due the relator. That in said proceeding the constitutionality of the legislation under which the writ of mandamus was sought was not at issue, and no reference to the constitutionality of the act was made by either party, nor by the trial court. The relator was at once returned to his work. “In July of the year 1921, this proceeding was instituted asking for a writ of mandamus compelling the street railway commission of the city of Detroit to pay the relator the sum of $838.65 which he claimed as the sum due him for services which he did not perform, but which he claims he should have been allowed to perform, between the period of November 26, 1920, and April 6, 1921, that period between the time of his discharge and his reinstatement by the Wayne circuit court by the writ of mandamus. That prior to the bringing of this action the plaintiff filed with the common council of the city of Detroit, Michigan, his petition for an order directing the payment of said sum of $838.65. This proceeding is also brought under the provisions of section 1041 of the Compiled Laws of 1915 of the State of Michigan, as amended by Act No. 224 of the Public Acts of 1919 of the State of Michigan.” The proceeding calls for a construction of Act No. 205, Pub. Acts 1897, as amended by Act No. 85, Pub. Acts 1899, Act No. 329, Pub. Acts 1907, and by Act No. 224, Pub. Acts 1919 (Comp. Laws Supp. 1922, §§ 1041, 1042). The last named act reads in part as follows: “Section 1. In every public department and upon the public works of the State and of every county and municipal corporation thereof honorably discharged Union soldiers, sailors and marines of the civil war, and honorably discharged soldiers, sailors and marines of the Spanish-American war, of the present war in Europe and of every other war in which the United States of America has been a participant, shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them: Provided, however, that the applicant shall be of good moral character and shall have been a resident of the State for at least two years and of the county in which the office or position is located for at least one year, and possesses other requisite qualifications. “Sec. 2. No veteran or other soldier, sailor or marine as indicated in the preceding section holding an office or employment in ‘any public department or public works of the State, or of any county, city, town ship or village of the State shall be removed or suspended or shall, without his consent, be transferred from such office or employment except after a full hearing before the circuit court of the county where he is employed, and at such hearing the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension, or transfer shall be made only upon a written order of the circuit court.” The trial court filed a very elaborate opinion from which we quote freely: “The court at the time stated to counsel and reiterates here, that unless the court has jurisdiction it ought not to make any order in the matter at all in any of the cases then pending before it. “The Constitution of the State of Michigan, article 4, declares: " ‘Section 1. The powers of government are divided into three departments: The legislative, executive and judicial. “ ‘Seo. 2. No person belonging to one department shall exercise the powers belonging to another, except in the cases expressly provided in this Constitution.’ “In general it may be said that in construing the above provisions, the Supreme Court of the State of Michigan has given effect to the above provisions in a large number of cases, a few of which only are cited here, as showing' the temper and tendency thereof (citing Houseman v. Kent Circuit Judge, 58 Mich. 364; City of Manistee v. Harley, 79 Mich. 238; People v. Dickerson, 164 Mich. 148 [33 L. R. A. (N. S.) 917, Ann. Cas. 1917B, 688]; Anway v. Railway Co., 211 Mich. 592 [12 A. L. R. 26], and other authorities). “The Constitution of Michigan, among other things, contains the following, article 9: “ ‘Section 7. The governor shall have the power and it shall be Ms duty, except at such time as the legislature may be in session, to examine Into the condition and administration of any public office and the acts of any public officer, elective or appointive; to remove from office for gross neglect of duty or for corrupt conduct in office, or any other misfeasance or malfeasance therein, any elective or appointive State officer, except legislative or judicial, and report the causes of such removal to the legislature at its next session. “ 'Sec. 8. Any officer elected by a county, city, village, township or school district may be removed from office in such manner and for such cause as shall be prescribed by law.’ “Constitution of 1850, article 12, among other things, contains the following: “ ‘Section 7. The legislature shall provide by law for the removal of any officer elected by a county, township or school district, in such manner and for such cause as to them shall seem just and proper. “ ‘Sec. 8. The governor shall have power and it shall be his duty, except at such time- as the legislature may be 'in session, to- examine into the condition and administration of any public office and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following State officers, to-wit: The attorney general, State treasurer, commissioner of the land office, secretary of State, auditor general, superintendent of public instruction or members- of the State board of education, or any other officers of the State except legislative or judicial, elective or appointed, and to appoint a successor for the remainder of their respective unexpired term of office, and report the causes of such removal to the legislature at its next session.’ “In pursuance of the above section 7 the legislature delegated to the governor of the State the power of removal. See 1 Comp. Laws 1915, § 243, wherein certain officers of the State and county may be removed by the governor for ‘Official misconduct, or habitual or wilful neglect of duty.’ “Section 245, 1 Comp. Laws 1915, among other things provides: " ‘The governor may remove all county officers chosen by the electors of any county or appointed by him; and shall also remove all justices of the peace and township officers chosen by the electors of any township; or city or village officers chosen by the electors of any city or village, or any ward or voting district thereof, when he shall be satisfied from sufficient evidence submitted to him as hereinafter provided, that such officer is incompetent to execute properly the duties of his office, or has been guilty of official misconduct, or wilful neglect of duty, or of extortion, or habitual drunkenness, or has been convicted of being drunk or whenever it shall appear by a certified copy of the judgment of a court of record of this State that such officer after his election or appointment shall have been convicted of a felony;’ etc. “It will be noted at the outset that no authority is delegated to the governor, either in the _ Constitution or in the statutes passed thereafter in pursuance thereof, except for causes therein specifically designated. In no case is the power of removal lodged in the removing officer under the designation of ‘for cause’ or ‘cause shown or proven,’ but in each case the specific kind of cause is pointed out in the statute, among other things, to-wit: official misconduct, habitual or wilful neglect of duty, extortion, habitual drunkenness, convicted of being drunk, convicted of'a felony, etc. “It may be observed that the above provisions relate to officer as distinguished from employees; however, Act No. 156, Laws 1851, has the following title: “ ‘An act to define tke powers and duties of the boards of supervisors of the several counties, and to confer upon them certain local, administrative and legislative powers.’ ' “Section 11 of said act, subdivision 17th as amended (1 Comp. Laws 1915, § 2274), among other things provides: “ ‘That the board of supervisors shall have authority to remove any officer or agent heretofore or hereafter to be appointed by said board when in its opinion he is incompetent to execute properly the duties of his office, or when on charges and evidence it shall be satisfied that he has been guilty of official misconduct, or habitual or wilful neglect of duty, if in its opinion such misconduct or neglect shall be a sufficient cause for such removal; but no such officer or agent shall be removed for such misconduct or neglect, unless charges thereof shall have been preferred to said board, of supervisors or the chairman thereof, and notice of the hearing, with a copy of the charges, delivered to such officer or agent, and a full opportunity given him to be heard in his defense, either in person or by counsel.’ “The above provisions of the statute were extensively considered in the case of Trainor v. Board of Auditors, 89 Mich. 162 (15 L. R. A. 95). In this case it appeared that relator Trainor was appointed file clerk of county records, and relator George C. Burgess chief janitor of the county building by the board of auditors, and on April 13, 1891, a contract in writing was signed by the county auditors hiring and employing said Trainor and Burgess for the term ending January 1, 1892. It further appeared that thereafter the political complexion of the board of auditors changed, and on April 27, 1891, the board of auditors, as then constituted, passed a resolution finding that Trainor and Burgess were incompetent to properly execute the duties of their offices, and further resolved that their services be dispensed with from and after the 1st day of May, 1891. The relators thereupon filed proceedings in court, and it was shown that the action discharging them was without notice and without an opportunity to be heard. It was shown upon the trial that the board of auditors had the same power of removal as boards of supervisors possessed under the statutes, and the question arose as to whether the action of the board of auditors in discharging and removing the employees in the manner they did was legal. At page 170, Mr. Justice Morse, who delivered the opinion of the court, among other things, said: “ ‘Although it is the undoubted policy of our State, and best in accord with our system of government, that officers should hold for fixed terms, and not be subject to< removal at the will or caprice of the appointing power, yet there ig no constitutional objection to the conferring of such power of removal in offices not elective, and the legislature has undoubted authority to do so.’ “At page 171 the opinion proceeds as follows: “ ‘Nor is it at all singular that the legislature made a distinction in the method of procedure between removals for incompetency and removals for official misconduct and wilful neglect of duty. One charge is hard to specify and to establish, while the others are not. Official misconduct and wilful neglect of duty would appear about the same to all, while incompetency would involve at once a difference of opinion, as it would be generally a mere matter of opinion. If a removal, in cases of janitors and the like employees In and about public offices, for incompetency, is to be made, it would seem wiser to leave it to the judgment or opinion of the appointing officer, rather than, every time a hall sweeper or a door closer is to be removed from public office for failure to do his work properly, to require that charges should be preferred and a hearing had upon them. The relators in this case may have a remedy if they have been removed solely for political reasons, and unjustly branded as incompetent when they are not; but it is not by this proceeding as they cannot here traverse the statement that in the opinion of the board they were incompetent. It is the opinion that controls, and we must be bound by the return of the respondent that this opinion was the cause of the removal.’ “It may be observed in passing that the Supreme Court held that the boards of supervisors and, in the county of Wayne, the board of county auditors, an administrative and executive body in each case, could be delegated with the power of removal; no claim being made that the determination of the cases mentioned in the statute was a judicial function. “Fuller v. Attorney General, 98 Mich. 96. In this case it appeared that the board of control of the house of correction removed the warden of the reformatory at Ionia, and thereafter the relator, the party removed, applied to the attorney general to file an information in the nature of a quo warranto to test the title of the incumbent to the office, and in delivering the opinion of the court, Chief Justice Hooker, at page 101, among other things, says: “ ‘The constitutionality of the act giving power of removal to the board of control is also attacked under section 2, art. 3, of the Constitution, which reads as follows; “ ‘ “No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution.” “ ‘This is upon the theory that the right to an office, where removal is sought for cause, can only be tried by some officer belonging to the judicial department under the Constitution.’ “The court then reviews at length some of the former decisions of the Supreme Court, and continues at the bottom of page 102 as follows: ‘“There never has been a time in the history of the State when the courts have attempted to exercise this power of removal.’ “Again the court continues near the bottom of page 108: “ ‘The State has existed nearly 60 years, during all of which time officers and boards have been created, with power of appointing and removing subordinates — sometimes at will or pleasure, sometimes with concurrence of others, sometimes for cause, — before it was discovered that the constitutional provision that no person belonging to one branch of the government shall perform the functions of either of the others was a limitation of the power of the legislature in these matters. Meantime, this court has repeatedly refused to interfere with removals of subordinates, and it is not too much to say that the three departments of government have concurred in the recognition of ■the power and it is as plain that none of them ever supposed ¡that the power of removal was limited to a department that had never been suspected of having any jurisdiction of such matters (citing cases). “ ‘To the proposition that removing boards perform acts which are judicial in their nature, we readily assent. They must hear and determine, when the power is limited to removals for cause. So must boards of review, auditing boards, highway and drain officers, pardon boards, and in fact nearly every officer who has duties to perform); and it is also true that the action of all of these is subject to review in courts of justice. None of them, however, belong to the judicial department of government, nor can they be called judicial officers, though all perform acts in their nature judicial. Their acts are administrative.’ “The opinion continues at page 105 as follows: “Tt is legitimate and proper for the legislature to guard against hasty or partisan action by boards, by requiring the publicity which comes of written charges and a hearing; and where this is required, though the action may be said to be, in a sense, judicial it is not in the sense contended for, and the turpitude of the act constituting cause cannot embarrass the government by depriving the board of power to remove, on the ground that the officer has a right to a trial by the judicial department. We think the cases of Dullam v. Willson (53 Mich. 392 [51 Am. Rep. 128]) and Clay v. Stuart (74 Mich. 415 [16 Am. St. Rep. 644]), as well as the other cases in Michigan, are. not at variance with this doctrine, though the language used in some of them might, at first blush, lead us- to think otherwise. The case of Wellman v. Board of Police, 84 Mich. 558, 91 Mich. 427, is one where this court asserted the power of the board, although the offense was a felony. The question was there raised and settled in accord with what has been said. See, also, Stadler v. City of Detroit, 13 Mich. 346; Board of Auditors v. Benoit, 20 Mich. 185 (4 Am. Rep. 382). “ ‘The next question requiring attention pertains to the charge upon which the action of the board was based. The act provides that the warden shall only be removed for cause. What is meant by cause? If we look to the Constitution for light upon this subject, we shall find that causes for impeachment are limited to corrupt conduct in office, crimes and misdemeanors. Const, art. 12, § 1. Removals by the governor under section 8, art. 12, may be for gross neglect of duty, corrupt conduct in office, or any other misfeasance or malfeasance therein. We can mention many other things which would justify a State officer or board in removing a subordinate. Negligence, bad habits, slovenliness, want of discretion, incompetency, or anything else which would show unfitness for the place, and inability to perform the duties in a satisfactory manner and in accordance with the best interests of the State, would justify his removal.’ “And again the court continues at page 107 as follows; “ ‘A radical difference exists between removals of State officers for the causes mentioned, and the removal of subordinates by their superiors; and while, in this case, the law requires the charges to be presented in writing, it is sufficient if they contain specific statements of infractions of the law, or of the rules and regulations which the accused should observe, and specify the facts depended upon to show incompetency or unfitness, and which require a removal, from the standpoint of the best interests of the institution.’ “We have quoted at some length from the above case because we have found more light upon the various propositions involved in the instant case than any other decision of the Supreme Court. “Attorney General v. Jochim, 99 Mich. 358 (23 L. R. A. 699, 41 Am. St. Rep. 606). This was an information in the nature of quo warranto to test the title of respondent to the office of secretary of State. In this case the power of the governor to remove, as well as the sufficiency of the cause alleged, was involved. Among other things, it was claimed that a public office was property of which a constitutional officer could not be deprived without due process of law, which involved a judicial proceeding for the trial, and in discussing this question, among other things the court uses the following language at pp. 368 and 369: “ ‘The legislature may remove officers not only by abolishing the office, but by an act declaring it vacant, as was done by Act No. 140, § 13, Pub. Acts 1891. Throop v. Langdon, 40 Mich. 673; Board of Auditors v. Benoit, 20 Mich. 184 (4 Am. Rep. 382). And it may lodge the power to remove from statutory offices in boards or other officers, subject to statutory regulations. * * * “ ‘Nor does it follow that removal from office is a deprivation of the officer of property, because it must be for cause, upon specific charges, and after an opportunity to be heard. * * * “ ‘Due process is not necessarily judicial process. Administrar tive process, which 'has been regarded as necessary in government, and sanctioned by long usage, is as much due process as any other. * * * “ ‘The requirement of the Constitution that a person cannot be deprived of his property without due process of law does not imply that all trials in the State courts, affecting property, must be by jury,.’ “At page 374, the court continues: “ ‘Dullam v. Willson, 53 Mich. 392 (51 Am. Rep. 128), is authority for the proposition that the incumbent is entitled to notice of the charge, and an opportunity to be heard in his defense. This necessarily implies that the governor’s action is, in a sense, judicial. But it does not follow that the investigation must be made by some other person or officer, who must make complaint to the governor; that the complainant must procure counsel; or that the governor is necessarily interested, and thereby disqualified from hearing and determining, because he performs the other duties which are specifically imposed upon him by this section of the Constitution. * * * Finally, the governor acts judicially upon the accumulated evidence, and such explanations by way of defense as the respondent may offer. In this respect his action is similar to that discussed in Fuller v. Attorney General, 98 Mich. 96, which discussion it is unnecessary to repeat.’ 475 “Article 7, § 11, of the Constitution of Michigan provides: “‘The judges of the circuit courts may fill any vacancy in the offices of county clerk or prosecuting attorney within their respective jurisdictions, but shall not exercise any other power of appointment to public office.’ “In pursuance of the above constitutional provision the legislature passed an act (See 1 Comp. Laws 1915, § 255), which among other things provides: • “ ‘When at any time there shall be in either of the offices of county clerk or prosecuting attorney, no officer duly authorized to execute the duties thereof, the judge of the circuit court of the circuit in which the county where such vacancy exists shall be situated, may appoint some suitable person to perform the duties of either of said officers for the -time being.’ * * * “It is manifest that the power of the circuit judges above conferred to fill vacancies in the offices of the county clerk and prosecuting attorney, is of and by itself an executive or administrative act. It is to be noted, however, that the constitutional provisions separate the powers of government into three departments and forbids any person belonging to one department to exercise the powers belonging to another ‘except in the cases expressly provided in this Constitution.’ “The clause above quoted seems to complete the answer to the objection that might be made; however, another view of the matter is, that the offices of prosecuting attorney and county clerk are incidental to the exercise of the complete jurisdiction of the circuit court, and as bearing upon this phase, citation is hereby had to the cause of Union Trust Co. v. Wayne Probate Judge, 125 Mich. 487. “In this case Act No. 188, Pub. Acts 1899, among other things, provided for the fixing of the tax on in heritances and delegated to the probate judge certain duties. “Upon page 494, Mr. Justice Hooker, in delivering the opinion of the court, says: "‘We are of the opinion that there is no force in the point that duties not judicial are imposed upon the judge of probate. These duties, as held in the cases of State v. Gloucester Circuit Judge, 50 N. J. Law, 585, 611 (15 Atl. 272, 1 L. R. A. 86), and In re McPherson, 104 N. Y. 306 (10 N. E. 685, 58 Am. Rep. 502), are necessarily incident to the settlement of estates, and may be performed by the judge of probate.’ “McCall v. Calhoun Circuit Judge, 146 Mich. 319. In this case Act No. 272, Pub. Acts 1905, was. challenged upon the ground that it attempted to delegate to the circuit judge certain administrative functions not strictly judicial. This act, among other things; provided for inspection and approval by the circuit judge of the place for holding court, and the Supreme Court held that while not strictly judicial, these acts were incidental to judicial functions and sustained the act. “In the charter and laws of Detroit, 1914-1916, § 286, which is the act creating the recorder’s court, appear the following provisions: “ ‘There shall be a clerk and two deputy clerks of said court, who shall be appointed by the recorder, and a memorandum of such appointment shall be entered upon the records of the court. Such clerk and deputy clerks shall hold their offices for the term of six years from and after January 16, 1894, and until their successors are duly appointed and qualified. * * * The recorder shall have the power at any time to remove such clerk, 'deputy clerk and assistants, for incompetence or serious neglect in the performance of their duties; and in case of such removal, or of a vacancy in the said office by the death of said clerk, deputy clerk or assistants or otherwise, the said recorder shall fill the unexpired term by a new appointment.’ “Act No. 369, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 14725 [1] el seq.), reorganized the recorder’s court of the city of Detroit. “In the case of Beck v. Keidan, 215 Mich. 13, one Benjamin E. Beck was appointed deputy clerk by the recorder on January 29, 1920, and that thereafter said Beck was verbally notified that a majority of the judges of the said recorder’s court had decided to dispense with his services from and after July 31, 1920. In his bill praying for injunction Beck averred that no charges were presented, filed or served, nor had he had the advantage of any trial, nor was any order of removal ever entered in the journal of the recorder’s court, and thereupon he applied to the circuit court for an injunction restraining the clerk of the recorder’s court and the several judges thereof from his threatened ouster. “It will be noted that the power of removal under the statute above quoted was limited to the following specifications: (a) For incompetence, (b) Serious neglect in the performance of duty. “The circuit dismissed the bill upon the ground of want of jurisdiction, but the Supreme Court reversed the decree and granted injunctive relief. “The opinion (see page 19) contains the following significant observation: “‘Now that the court is reorganized we think a majority of the judges may do what Judge Wilkins theretofore might do. If they should find, after a proper hearing, afteh notice and an opportunity to be heard has been given him, that the plaintiff is incompetent or that he seriously neglects the performance of his duties, then we have no doubt of the power of removal. That power has not been properly exercised in the instant case.’ “It is manifest that competent clerks, and those who do not neglect the performance of their duties, is not only incidental to the functioning of courts, but is absolutely essential to the proper administration of justice, and by reason thereof the courts may be delegated with such power. “Act No. 205, Pub. Acts 1897, in its original form prior to the Brennan amendment, came before the Supreme Court for construction in the case of Ellis v. Common Council of Grand Rapids, 123 Mich. 567, and at page 569, Mr. Justice Grant, who delivered the opinion of the court, among other things, says: “‘The provisions of this act are penal in their character, and must be strictly construed,’ “Keeping in mind the decision of the Supreme Court above quoted, attention must be directed to the failure of section 2 to specify, either directly or remotely, the causes upon which suspension, removal or transfer shall be made. “In Robison v. Miner, 68 Mich. 549, the validity of the liquor law of 1887 was challenged upon several grounds. This law, among other things authorized municipal boards or trustees, or council who passed upon the sufficiency of the bond of the applicant, to reject the same if the bond is known to them ‘to be a person whose character and habits would render him or her an unfit person to conduct the business of selling liquor.’ “Mr. Justice Campbell, who delivered the opinion of the court upon this proposition, among other things, says, at page 555: ■ “‘If no- standard is laid down, there may be as many scales of fitness and unfitness as there are boards.’ “At page 556, the learned justice continues: “ ‘If the statute had fixed the rule, there would be means of protecting parties against caprice and condemnation unheard. But when the same persons are to be judges of the proper causes of rejection, as well as of the fitness of persons under such causes, the law subjects every one to the mere will of his neighbors, and gives him no rights whatever. No man’s rights can be submitted, under a constitutional government, to the discretion of anybody. * * “ ‘The power in a county treasurer to require new bonds in any contingency which he determines should require it is still worse, for it works a forfeiture of the rights obtained by paying the taxes imposed for the year’s business, as well as the breaking up- of the business. This cannot be done. The specified causes, so far as they go, are not illegally laid down, although the law is deficient in providing no method of getting at the facts by a hearing before any one. The treasurer is given such powers by ’this legislation as cannot be sustained on any legal principle. * * * “‘These principles underlie the whole policy of the statute. It provides that no one shall sell, except on the condition specified, and it leaves it discretionary with local boards to de prive any .person of the right of selling on their private judgment as to his fitness.’ “In the early case of Underwood v. People, 32 Mich. 1 (20 Am. Rep. 633), the statute of the State was declared unconstitutional, and in the course of the opinion Mr. Justice Campbell refers to the case of People, ex rel. Attorney General, v. Lawton, 30 Mich. 386, wliich held that a law was not enforceable unless it furnished adequate means to secure the purposes for which it was enacted. At page 5 of the opinion the justice continues: “ ‘No circuit judge can he compelled to perform functions not judicial in that capacity.' “Applying the above principles to the facts in the instant case, we find that the only offense committed by the respondent relates to the alleged excessive use of intoxicating liquors. No allegation appears in the petition that the alleged action of respondent was contrary to the statute or contrary to the rules of the department. Without any allegation relating thereto, rule No. 4 was received in evidence, but the rule itself contains the clause ‘while on duty or in uniform,’ and respondent was in neither of these conditions at the time of the alleged offense. “The court has made extensive research into, not only the cases cited by counsel during the arguments, but also into the decisions of other States to find, if possible, whether or not any attempt has been made in other jurisdictions to delegate to the court the power of suspension, removal or transfer of executive officers or employees, and: no such statute has been yet discovered.” We will not quote from the opinion any further. It concludes: “The court finds arid determines that the removal, suspension and transfer of officers and employees in public departments of the State, and of cities, towns and villages thereof, is primarily and essentially an executive or administrative function, and the attempted delegation of such function by said section 2 to the judicial department of government is uncon stitutional, null and void, the same being contrary to the provisions of sections 1 and 2 of article 4 of the Constitution which are as follows: “ ‘Section 1. The powers of government are divided into three departments; The legislative, executive and judicial. “ ‘Sec. 2. No person belonging to one department shall exercise the powers belonging to another, except in the cases expressly provided in this Constitution.’ “Said section 2 is unconstitutional, null and void in that no provision is made in said section or in the act itself specifically setting forth the causes based upon which the order of such removal, suspension and transfer may be made. There being ho common standard for determination mentioned in the statute, no judicial question arising under the statute is presented to the court. “The effect of this decision adjudging and determining the invalidity of the amendment of section 2 as amended in 1919, revives and brings into full force said section 2 prior to said amendment, which purported to delegate to the executive department-of government the function of removal, suspension and transfer. It is the opinion of this court that such delegation of power is not only legal in itself, but is the- only department properly intrusted with such administrative powers, and the officers mentioned in section 2 as originally enacted may proceed to exercise the powers delegated ill the same manner as though the amendment had never been passed. * * * “For the reasons above given an order may be entered dismissing the petition upon the ground that this court is without jurisdiction in the premises. “There are four other cases now pending before this court likewise involving the validity of said section 2 as amended, and without filing a separate opinion in each case, an order of dismissal for want of jurisdiction will be entered therein respectively.” The case is brought into this court by certiorari. The important question is, Did the court err in finding that section 2 -of Act No. 224, Pub. Acts 1919, is un constitutional? We quote from the brief of counsel for appellant: “In considering this contention, it may be well to have in mind at the very outset that any proceeding involving the removal of an office holder or employee., whether elected or appointed, unless such office holder be removable by law at the will of a superior is a ‘judicial’ rather than ‘executive’ or a ‘legislative’ act. “It is claimed that the act in question contravenes section 2 of article 4 of the present Constitution of the State of Michigan as follows: “ ‘No person belonging to one department shall exercise tbe powers belonging to another, except in the cases expressly provided in this Constitution.’ “That the removal of an elective or appointive officer, where the statute does not expressly give the power of removal at will and without cause shown, is a ‘judicial’ rather than an ‘executive’ function will be recognized upon an examination of the following cases: Clay v. Stuart, 74 Mich. 411 (16 Am. St. Rep. 644); Speed v. Detroit Common Council, 98 Mich. 360 (22 L. R. A. 842, 39 Am. St. Rep. 555); Metevier v. Therrien, 80 Mich. 187; Dullam v. Willson, 53 Mich. 392 (51 Am. Rep. 128).” Counsel also cite other authorities but we think none of them is controlling of the instant case, as a reading of the opinions therein will show they are readily distinguishable from the case before us. If a court is to pass intelligently upon the question of whether one holding an office or employment in any public department shall be removed, suspended or transferred it would seem that the first inquiry would be, Is the officer or employee competent to hold the place? Has he made himself familiar with the duties imposed upon him? If so, does he properly discharge them? Is he diligent about his work, or is he a loiterer? Is he painstaking and accurate in what he does or must his work be constantly supervised be fore it can be acted upon? Is he a person of integrity, whose honesty is not questioned? All these and many other inquiries which readily suggest themselves present questions of fact and are administrative in their character and are not judicial. The action of the court below is affirmed. Fellows, Clark, Bird, and Steere, JJ., concurred with Moore, J.

Bird, J. Plaintiff is the owner in fee of all that part of lots 1 and 2, section 3, town 14 north, range 5 east, lying easterly and northerly of the right of way of the Grand Trunk Railway Company in Bay county. Between these lots and the shore line of Saginaw Bay and outside of the meander line- there lies a strip of land about 280 feet in width. Upon a portion of this strip defendant has built a summer cottage and is now in possession of it. Plaintiff claims title thereto on two grounds: (1) That the land is the result of accretions to his adjacent soil. (2) That he and his predecessors in title have occupied it for over thirty years, and that he now has title by adverse possession. The defendant concedes plaintiff is the owner in fee of lots 1 and 2, and admits that he himself has no title to the disputed strip, but he denies that the disputed land is the result of accretions; he insists that the strip of land is submerged land and is lake bottom, and belongs to the State of Michigan. We do not think the record supports plaintiff’s theory of accretions. The record is very brief. The defendant offered no testimony. From the testimony we are persuaded that the disputed strip which lies between the meander line and the present shore or water line is, in the law, submerged land and lake bottom. The disputed strip has never been surveyed and we think we may indulge the presumption that when the meander line was established it followed the then existing shore line. Brown v. Parker, 127 Mich. 390. We are encouraged in this belief by the testimony of plaintiff and others that the water line has materially receded in the last 30 years, and that the height of the disputed premises and vicinity has been raised by artificial means, by artificial fills. Plaintiff testified: “The water is lower than it was 20 years ago, I imagine about 16 to 18 inches.” William McKittrick, who has spent his summers in this vicinity since 1890, testified: “The water did come up and submerge the land around where. Rabior’s cottage is, in former years. We have not noticed it in recent years so much. With a stiff northeastern it blows the water up there in the neighborhood of 100 or 150 feet from the Baltimore cottage. There is a slight ridge there. The place back of him has been filled in in recent years; it was a swale formerly in there, and we under-brushed and filled it in. That was thirty years or so, and within that period of time we have frequently filled it up so that the ground between where Rabior’s cottage is and the meander line is now higher because of its having been built up in that way by cottagers down there so that it would be higher, and we would avoid some of the water.” It further appeared from the testimony of this witness that the Rabior cottage did not interfere with the ingress or egress to and from the water. Henry Thompson, a civil engineer, who has been familiar with the locus in quo for many years, said: “I know that the property where Mr. Rabior’s cottage is located has been overflowed at times, in years gone by, and I know it is overflowed from the northeast wind. * * * “I do not want to say that the water does not come back on this land and cover'the land outside of the meander line, but it does not get up as high as it did 80 years ago, because the level of the lakes is lower. There has not been any material difference in the winds and the velocity and force of them in the last 80 years, that I know of.” We think a fair inference is, from the meager testimony, that the disputed strip was submerged when the meander line was established, and that the disputed strip is the result of the recession of the waters and not of accretions. If this be' true, the disputed area must be regarded in the law as lake bottom. When the meander line was established it fixed the status of the disputed strip as lake bottom, and this status in the law would not change even though a portion of it had become dry land. While it is generally held that the title to lands under rivers and inland lakes belongs to the riparian proprietors, a different rule has been made with reference to the Great Lakes. The Great Lakes have been classed with tide waters, and the same rules applied. People v. Silberwood, 110 Mich. 103 (32 L. R. A. 694); Ainsworth v. Hunting & Fishing Club, 159 Mich. 61. In the last case cited it was said: “It is the established law of this State that riparian owners along the Great Lakes own only to the meander line, and that title, outside this meander line, subject to the rights of navigation, is held in trust by the State for the use of its citizens” (citing authorities). The Wisconsin court has reached the same conclusion. Diedrich v. Railway Co., 42 Wis. 248 (24 Am. Rep. 399). In Illinois Cent. R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. 110), will be found a very learned and exhaustive opinion on this question by Mr. Justice Field, and he therein reaches the conclusion that the States bordering on the Great Lakes own the title of the land in trust which is covered by their waters. Counsel assert plaintiff has title to the disputed strip by adverse possession. This question was raised and settled adversely to plaintiff’s contention in State v. Venice of America Lomd Co., 160 Mich. 680. It was there said by Mr. Justice Stone, who wrote the opinion, that: “An exhaustive discussion of the nature of the State’s title to land beneath the waters of the Great Lakes, and of the question whether any part of such territory can be acquired, as against the State, by adverse possession, will be found in the minority opinion of Justice Hooker in the last above case (State v. Fishing & Shooting Chib, 127 Mich. 580). It there clearly appears from an abundance of authority that title to submerged lands in the Great Lakes held by the State cannot be devested by adverse possession; it being held in trust for the public, according to the original cession from Virginia and the ordinance of 1787. The late case of Illinois Steel Co. v. Billot, 109 Wis. 418 (84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905), supports this view. Olds v. Commissioner of State Land Office, 150 Mich. 134; Ainsworth v. Hunting & Fishing Club, 159 Mich. 61. “The questions of water line and estoppel are answered by the above authorities. “The trust in the State is an express trust; and the rule is too well settled to need citation of authorities that, as against the State as the trustee of an express trust, the statute of limitations will not run. 1 Gyc. p. 1113, and cases cited.” It might not be amiss to call attention to the fact that the State has of recent years established a policy in dealing with this class of lands. Act No. 326, Pub. Acts 1913, as amended (1 Comp. Laws 1915, § 606 et seq.). Our conclusion is that plaintiff has failed to establish his title, and that the motion which defendant made, for a directed verdict, should have been granted. The judgment will be reversed, and a new trial granted, with costs to the defendant. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, and Steere, JJ., concurred. Moore, J., did not sit.

Fellows, J. Armin Weinberger, who did business in Detroit under the name of Weinberger & Ziegler, desiring to engage in the business of selling foreign steamship tickets and to receive' the certificate of the commissioner of banking of the State authorizing him so to do as provided by Act No. 271, Pub. Acts 1915, as amended by Act No. 399, Pub. Acts 1919, applied to such commissioner for such certificate, tendering a bond in proper form with defendant Fidelity & Casualty Company of New York, a surety company, as surety. As the bond bore date January 13, 1921, we need not consider the act as rewritten by Act No. 306, Pub. Acts 1921, amended by Act No. 19, First Extra Session 1921 (Comp. Laws Supp. 1922, § 7164 [1-3]). The bond was accepted and the certificate issued. The “use” plaintiff desired to bring two relatives to Detroit from Warsaw, Poland. He applied to Weinberger on April 18, 1921, for two tickets for this purpose and paid him $370.68, and there was given to him two papers. They were not tickets. In the usual course of business these papers should have been forwarded to the prospective passengers and a coupon designated as “purchaser’s receipt” should have been given the purchaser for his money and Weinberger should have sent to his principal a coupon called “advice coupon” together with the money paid by the purchaser less his commission. This he did not do but appropriated the money to his own use. Tickets not having been delivered to Ostapow’s relatives in Warsaw, he again saw Weinberger and was told that he would have to pay $30 more. This he did, and was given a receipt. No tickets were ever issued for the transportation of Ostapow’s relatives from Warsaw to Detroit. Weinberger having absconded, this action was brought upon his bond. On behalf of defendant it is insisted that the act under which this bond was given offends the Federal Constitution in that it is in conflict with the Fourteenth Amendment, and further, that it places a direct burden on foreign commerce. It is insisted that the bond, being a statutory bond, falls if the statute falls, and that there can be no recovery upon it. It is further insisted that even though the statute be valid there can be no recovery because there has been no breach of the bond. Defendant can not, under the facts of the case, ques tion the constitutionality of the act. Both it and its principal, Weinberger, have had the benefits of it and under such circumstances can not question its validity. Defendant has had its premium for executing the bond and Weinberger, until he absconded, all the benefits the act conferred; by the favorable action on his application to the commissioner of banking, he obtained a certificate from that officer, representing the State, authorizing him to engage in the business of selling steamship and railroad tickets for transportation to or from foreign countries. The fact that this particular customer did not deal with him with knowledge of the statute is unimportant. Under the law the certificate' was displayed in his place of business; it was in effect a 'certificate of moral character and financial stability and Weinberger had and enjoyed the full benefit of it. Neither he nor his surety can now claim the act is unconstitutional. Daniels v. Tearney, 102 U. S. 415, is a leading case. An ordinance of the State of Virginia was passed in furtherance of the plan of secession. It was admittedly an unconstitutional act. Pursuant to its terms the bond in suit was given. It was said by Mr. Justice Swayne, speaking for the court: “It is well settled as a general proposition, subject to certain exceptions not necessary to be here noted, that where a party has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense, although such unconstitutionality may have been pronounced by a competent judicial tribunal in another suit. In such cases the principle of estoppel applies with full force and conclusive effect.” In Winthrop v. Fellows, 230 Fed. 702, injunction against the officers of the State was sought to restrain them from enforcing the two-cent passenger rate fixed in the railroad act under which the Pere Marquette Railroad Company was organized, on the ground that such rate was confiscatory and therefore unconstitutional as applied to that railroad. It was there said: “The present Pere Marquette Railroad Company was organized in December, 1907. At that time the statute of 1907 which is attacked was in force, and was a part of the act under which the railroad company was incorporated, and thus constituted a material part of its charter. The amendment of 1911 did not change or affect the rates of fare which the Pere Marquette was permitted to charge for the transportation of passengers. It follows that the railroad company, its stockholders, as such, and all claiming under it by right of representation, are effectually estopped to question the validity of the statute here under consideration. Having sought and accepted the rights and privileges thereby granted and conferred, they must perform the duties and obligations therein imposed.” Among the cases cited was the similar case of Commissioner of Railroads v. Railway Co., 130 Mich. 248. The railway company, in perfecting its reorganization plans, incorporated under the Michigan railroad act which then prescribed a passenger rate as applicable to that company of two and one-half cents a mile. It declined to put such rate into force and mandamus was sought to compel that result. Under the pleadings the rate was admittedly confiscatory and therefore the act, as applied to that company, unconstitutional. But this court there held that the company could not avail itself of the act and then attack onerous provisions of it as invalid. The case was reviewed in the Supreme Court of the United States in Grand Rapids, etc., R. Co. v. Osborn, 193 U. S. 17 (24 Sup. Ct. 310), and was there affirmed upon the authority of Daniels v. Tearney, supra. In the recent case of Samuels v. Couzens, 215 Mich. 328, the plaintiff had applied for the issuance of a license under an ordinance of the city of Detroit. It had been refused him and the proceedings were* to compel its issuance by mandamus. • It was held that he could not question the validity of the ordinance. See, also, Goodspeed v. Wayne Circuit Judge, 199 Mich. 273; Interstate Railway Co. v. Massachusetts, 207 U. S. 79 (28 Sup. Ct. 26). Shaughnessy v. Surety Co., 138 Cal. 543 (69 Pac. 250), is in accordance with the doctrine contended for by defendant’s counsel, and some things said in Love v. McCoy, 81 W. Va. 478 (94 S. E. 954, L. R. A. 1918C, 832), sustain their position, but it was there said: “It is not the policy of the law to permit escape from the legal consequences of the execution of such an instrument, if some one or more of the persons who bind themselves to perform its conditions receive and enjoy its fruits or the protection it affords, or derive some material or financial benefit from it. They will, not, in either such event, when summoned to account for a breach of the conditions, be permitted to plead the voidness of the statute necessitating the execution of the undertaking.” Upon the authority of the adjudicated cases and upon fundamental principles of sound law, we think it should be held that, inasmuch as Weinberger enjoyed the benefits of the act in question, neither he nor his surety can assail its validity. One of the conditions of the bonds was that the principal “shall sell only genuine and valid steamship or railroad tickets for transportation to and from foreign countries.” The “use” plaintiff purchased, or supposed he purchased, from Weinberger two tickets from Warsaw, Poland, to Detroit, and paid Weinberger therefor $400.68. This sum, it is admitted, was sufficient. Weinberger’ gave him certain papers which were not “genuine and valid steamship or railroad tickets” nor did anyone issue to him or his relatives in Poland “genuine and valid steamship or railroad tickets,” and Weinberger pocketed the money. This was a breach of the bond. The judgment is affirmed. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Moore, J. The plaintiff, who is 19 years old, and her husband, Alfred Walter Davis, who was also under 21 years, in the afternoon of April 17, 1921, were riding in an automobile with the owner and driver of the car. There were other persons in the car. It is the claim of the plaintiff that the defendant was running its locomotive engine wild on Sunday on no schedule time; that the engine was coming from the south toward Lansing at a very high rate of speed; that no signal of any kind was given; that no bell was sounded or whistle blown; and that, because of the negligent running of the locomotive, the automobile in which plaintiff was riding was struck and plaintiff was severely injured. It is because of her injuries this suit is brought. After the plaintiff had sworn two witnesses, one of whom made a plat showing the situation where the accident occurred, and one of whom was the driver of the car, and when the plaintiff had not been sworn, nor had other witnesses she had in court to be sworn, at this juncture, on motion of the defendant’s attorney, the court directed a verdict for the defendant, stating that “the plaintiff by her driver was so negligent that she cannot recover.” The case is brought here by writ of error. If the trial judge had remembered that the plaintiff was an infant, and had recalled what was said by Justice Hooker, speaking for the court in the case of Hampel v. Railroad Co., 138 Mich. 1 (110 Am. St. Rep. 275), when he said: “The next question of importance is whether the negligence of the driver is imputable to the plaintiff’s intestate. Plaintiff’s counsel concede that, had she been an adult, it would be, but earnestly and ably contend that, as she was an infant, she should not be charged with the negligence of the driver. It is urged that the doctrine of negligence rests upon the assumption that the relation of principal and agent or master and servant exists between the passenger and driver, and that, as an infant can be neither principal nor master, the doctrine cannot apply to an infant. The deceased was an infant 13 years old, in a carriage by invitation of its driver, through whose negligence, and without her fault, she was killed. Had she been an adult, his negligence would have been imputable to her, upon the fiction that he was her agent, under the doctrine of Thorogood v. Bryan, 8 C. B. 115, which is recognized as authority in this State. See Mullen v. City of Owosso, 100 Mich. 103 (23 L. R. A. 693, 43 Am. St. Rep. 436). But this infant lacked the capacity to make him her agent, while there is not the least substance of a claim that either party supposed that such relation existed as a matter of fact.” it is likely he would not have directed a verdict. In that case it was held that the negligence of the driver was not imputable to the infant. In the case of Donlin v. Railway, 198 Mich. 327, Justice Fellows quoted with. approval at greater length than we have done from the language of Justice Hooker. For this error this case must be reversed. We suggest that greater latitude should be allowed the witnesses upon the new trial in stating what was done about looking in both directions, and listening as the car approached the crossing. We also think the verdict should not be directed until the plaintiff is given an opportunity to make her case if she can do so. The case is reversed, with costs to the plaintiff, and a new trial is granted. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, and Steere, JJ., concurred. Clark, J., did not sit.

Wiest, C. J. Dr. William H. Betteys held an accident policy issued by defendant company on September 17, 1910, indemnifying him “against disability or death resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means,” and renewed from year to year, with his wife designated therein as beneficiary in case of his death. Dr. Betteys died January 24, 1918, it is claimed, from an injury to the back of his left hand occasioned, in December, 1917, by the slipping of a wrench, resulting1 in an infection causing acute dilatation of the heart. This suit was brought by the beneficiary to recover the death benefit and also the weekly indemnity for disability. Defendant, under plea of the general issue, gave notice denying the alleged cause of death; set up failure of proof of disability and of cause of death; averred that suit was not brought in season and the claim made was invalid by failure to comply with stated provisions of the policy. At the trial plaintiff claimed a waiver by defendant of proof of death and cause thereof, and that defendant was estopped from raising the question of limitation of time in which to bring suit. Plaintiff had verdict and the case is here by writ of error, and the assignments of error present numerous rulings at the trial and defendant’s motions for judgment notwithstanding the verdict and for a new trial. Letters from defendant and its agents were introduced, over objections, to show waiver of strict compliance with the terms of the policy relative to notice and cause of death. It is claimed that such letters did not show a waiver under the terms of the policy, for the time set out in the policy “is an essence of the agreement of all parties in interest,” and defendant’s agents had no power to waive its terms. The letters have been examined and were admissible, along with the testimony, upon the question of waiver of proof of death and cause thereof within the 60-day period fixed by the policy. This matter, however, is not of much importance for defendant’s denial of liability to pay the death benefit excused plaintiff from making proof of death and cause thereof. Defendant had notice from Dr. Betteys that he had received an injury to his hand, presumably due to the bite of an insect, causing an infection. About a week after the death of Dr. Betteys^ Mr. Corbett, an attorney living at Oxford, notified the defendant of his death, and blanks upon which to make proofs were sent to Mr. Corbett on February 8, 1918. On February 9th, defendant wired Mr. Corbett “to hold up death proofs,” and later requested and obtained return of the blanks. This recall of the death proof blanks was occasioned by a telegram received by defendant from its district manager at Detroit, stating “Dr. Betteys died of acute valvular insufficiency of heart.” In June, 1918, plaintiff was notified that defendant denied liability because Dr. Betteys died of disease, but would recognize a claim for weekly indemnity for disability of the doctor, if such disability was occa sioned by an accident and proof thereof was promptly made. No proof of any kind was made until July, 1919, when plaintiff sent to defendant proof of death and cause thereof. Such proof, when received by defendant, was at once rejected and returned. The policy provided: “No legal proceeding for recovery hereunder shall be brought within ninety days after receipt of proof at the office of the company in Hartford, Connecticut, nor after one year from the date provided herein for the filing of proofs.” Plaintiff claims that defendant is estopped from invoking the contract provision limiting the time in which to bring suit to 14 months after death of the insured. We think she is right, so far as the weekly indemnity from time of the accident to time of death is concerned, and wrong as to the death benefit. The defendant waived administration of Dr. Betteys’ estate and recognized the right of plaintiff, without administration, to claim the weekly indemnity under the policy, if disability was occasioned by an accident. We have examined the record and find that, instead of giving plaintiff to understand the death claim was open to proof, there was denial by defendant of liability. This is apparent from the recall of the death proof blanks, the offer to receive proof relating solely to weekly indemnity for disability, the notification, in June, 1918, that defendant was not liable because the doctor died of disease, and the same notification in August, 1918, to plaintiff’s attorneys. Plaintiff could and should have brought suit upon the policy within the period fixed in the contract of insurance. After the denial of liability, in the letter of June 18, 1918, plaintiff had nearly eight months in which to bring suit, but let the time run by and in July, 1919, did the unnecessary thing of making proof of death and cause thereof, and then waited until months later before she brought this suit. Plaintiff slept upon her right to bring suit, after defendant recalled the death loss blanks and denied liability, and she was not lulled to sleep by any act of defendant. It is true she sought proofs to convince defendant of its liability and was encouraged by an agent of defendant in doing so, but this neither waived the time in which to bring suit nor did it estop defendant from standing upon its denial of liability and from invoking the time limitation. Dahrooge v. Insurance Co., 177 Mich. 442 (48 L. R. A. [N. S.] 906). Waiver of time in which to make proof of death and cause thereof, and the attitude of the company in denying liability and thereby excusing the making of such proof, must not be confused with the time limitation for bringing suit, for the waiver of one condition did not necessarily involve the waiver of the other. This court held in Law v. Accident Ass’n, 94 Mich. 266, quoting from the syllabus: “Where an accident insurance policy provides that no suit shall be brought, or arbitration required, to recover any sum, unless commenced within one year after the injury, and more than five months elapse, after the assured is fully advised that the company refuses to pay or arbitrate the claim, before the expiration of the year, a suit thereafter brought is barred by the provision cited, unless it has been waived by the company. McIntyre v. Insurance Co., 52 Mich. 188; Gould v. Insurance Co., 90 Mich. 302; Voorheis v. Benefit Society, 91 Mich. 469; Steele v. Insurance Co., 93 Mich. 81 (18 L. R. A. 85).” See, also, Lentz v. Insurance Co., 96 Mich. 445; Shackett v. Benefit Society, 107 Mich. 65; Dahrooge v. Insurance Co., supra, and 3 A. L. R. 223, where cases on the subject are listed. We find no occasion to pass upon the many assignments of error, for the case, so far as the death bene fit is concerned, must be decided adversely to plaintiff, because suit was not brought within the time stipulated in the contract. Upon this record the defendant was entitled to a directed verdict in its favor as to the claim of the plaintiff as beneficiary. The claim of plaintiff for the weekly indemnity for disability of the doctor constitutes a proper subject for a new trial. The judgment is reversed and a new trial granted, with costs to defendant. Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred. Clark, J., did not sit.

Moore, J. The plaintiffs brought this action to recover a broker’s commission for the sale of defendants’ farm. In the spring of 1920 the plaintiff firm had in their employ a salesman, Mr. Mann, who obtained from the defendants Exhibit A, which is spoken of as a listing contract, which gave to the plaintiffs such rights as they possessed to sell the farm. It was the claim of the defendant that this contract was not to be effective for 30 days, and was not to be effective at all if during the 30 days defendant notified the plaintiffs he did not desire to sell the farm, and that he gave them such notice within the 30 days. Some time in September Mr. Sharrar, acting for the plaintiffs, took Mr. Hickle to the farm of Mr. Nestle. Mr. Nestle said he wouldn’t sell the farm, wouldn’t talk with them about it, but said he would meet them at Mr. Giddings’ office in St. Louis. Mr. Giddings was his lawyer. The meeting was had. The defendant persisted in his refusal to sell the farm, and this suit was brought. The declaration consists of two counts. The first count is for the breach of the listing contract, Exhibit A, by the parties for the sale of defendants5 farm; the second is the common counts in assumpsit. The plea is the general issue with notices, which set up five grounds of defense. At the conclusion of all of the testimony the trial judge was of' the opinion that the plaintiffs had not met the conditions contained in the listing contract, and directed a verdict in favor of the defendants. The case is brought into this court by writ of error. A large amount of testimony was permitted by the-trial judge tending to show that the so-called listing-contract did not contain all of the contract, that it was not to be effective for 30 days, and not at ail if the plaintiffs were notified within the 30 days that defendant did not want to sell, and that such notice was given. This is said to be error upon the theory that It permitted a written contract to be changed or contradicted by oral proofs. Much space is devoted-in the brief to this contention. Inasmuch as the trial judge ignored this testimony and based his action upon his construction of the two written instruments,, we think it unnecessary to spend further time with this feature of the case. Counsel for the appellants contend that when defendant attempted to withdraw the listing contract that he was told it was too late, that the farm had already been sold to Mr. Sickle, that the duties of the plaintiffs were then complete, and no duty whatsoever devolved upon them to tender to the defendants a written contract. We quote from the brief: “Our court has repeatedly held that where a special contract has been fully executed by one party and nothing remains to be done but pay money, recovery may be had on the common counts;55 citing many cases.55 The law is as stated by counsel but the query arises whether it is applicable to the facts disclosed by this record. The special count in the declaration referred to Exhibits A and B and counts upon a breach of the conditions in Exhibit A. CounseTfor the plaintiffs in his opening statement to the court and jury referred to these exhibits and said “on the 21st day of September following the making of this contract, Mr. Hickle made and executed on his part a written contract which complied with the terms and provisions of the agency which was created in Sharrar and Watson” * * * and claimed that by so doing they had complied with the conditions contained in the listing contract, and were entitled to their commission. The two witnesses who testified to plaintiffs’ having found a purchaser of the farm were Mr. Sharrar and Mr. Hickle. Mr. Sharrar testified in part as follows: “Q. Now, witness, calling your attention to Exhibit B, I will ask you if you at any time submitted to Mr. Nestle any other terms than what are contained in this, for the purchase of the farm? “A. That is the 3,300 and 500 down, it is the only one. “Q. That is the only one? “A. Yes, sir. “Q. And it is the proposition which Mr. Hickle, you say, made? “A. Yes, sir. “Q. For the purchase of the land? “A. Yes, give him 3,000 down and add our 800 commission. “Q. You put it all in there? “A. I suppose it is in there; yes, sir. “Q. And that is the only proposition that you ever communicated to Mr. Nestle for the purchase of that farm? “A. Only one I know of. “Q. If there had been any other you would have known it? “A. I think I would.” Mr. Hickle was a witness, his cross-examination was in part as follows:- “It was a short time before we went out there, week or two, with Exhibit B in our possession that I first talked to Mr. Sharrar about it. I wouldn’t say it was one week or two weeks, just a few days, something' like that. I signed Exhibit B a short time, I think a week, before we took it out to the farm. I haven’t any judgment about the time, I can’t tell whether it was a week, a day, or what it is. “Q. Did you ever make any other proposition to •Mr. Nestle than what is contained in this? “A. No, sir. “Q. And you never made any other offer for the farm than what is contained in this? “A. No, sir. “Q. That is Exhibit B?” We think it clear that the case was tried upon the theory that the only offer to purchase was contained in Exhibit B. It now becomes necessary to see what are the essential provisions of Exhibits A and B. We quote from Exhibit A: “This agency is conditioned upon said agents obtaining for said lands, net to the owner, the sum of fourteen thousand (14,000) dollars of which $3,000 shall be paid in cash and the- balance of purchase price all to be paid in 10 years, with the privilege of paying any amount any interest day with interest at the rate of 6 per cent, per annum from date of delivery of possession of said lands. “Said agents agree to exert their best efforts to obtain a purchaser of said lands upon the above terms. In payment for which services, the owner agrees to pay said agents for their work in cash the excess of the purchase price of such lands over and above said $14,000 at the time the papers are signed and the sale completed with the purchaser. * * * “In case such agents find or obtain no purchaser they shall receive nothing for any services per formed by them. This agency is exclusive and not revocable. * * * “All lumber and barn frame to be reserved. Some of rose bush and peonies to be reserved.” We now quote from Exhibit B: “Said first party in consideration of the sum of fourteen thousand eight hundred (14,800) dollars, to be paid by second party to first party, and of the covenants to be performed by second party, as hereinafter expressed, hereby agrees to sell to second party all of that certain piece or parcel of land. * * * “Said second party, in consideration of the covenants herein made by first party, agrees to purchase of first party, the above described premises, and to pay therefor to first party, or his legal representatives, at St. Louis, Mich!, the sum of fourteen thousand eight hundred (14,800) dollars, in manner as follows, viz.: “$500 on signing of contract, receipt of which is hereby acknowledged; $3,300 or more on March 1st, 1921; $500 or more on March 1st, 1922; and $500 or more on March 1st, each and every year following, all to be paid in ten years from March 1st, 1921, together with interest on the whole sum that shall be from time to time unpaid, at the rate of 6 per cent, per annum, to be computed from March 1st, 1921, and to be paid annually. Principal or interest not paid when due shall bear interest until paid at 6 per cent, per annum.” There is no statement in the contract that “All lumber and barn frame to be reserved; some of rose bush and peonies to be reserved.” The record shows that the lumber and barn frame were so attached to the realty that a deed of the farm would convey title to them. It will be noted that in the listing contract the sum of $3,000 was to be paid in cash “with the privilege of paying any amount any interest day with interest at the rate of six per cent.” This insured to the seller that $11,000 of his money would draw six per cent, for at least a year. The offer to purchase contract provided “$500 on signing of contract receipt of which is hereby acknowledged, $3,300 or more on March 1, 1921.” It will be noticed that this gave the purchaser the right to pay in full for the farm March 1, 1921. The right of defendant to have his $11,000 invested for at least a year at six per cent, interest was a valuable right. See Barbour v. Hickey, 24 L. R. A. 763 (2 App. D. C. 207). We have already said enough in relation to the failure to make the reservations mentioned in the listing contract. It was no part of the duty of defend' ant to show the plaintiffs wherein they had failed to comply with the listing contract,' but it was the duty of the plaintiffs to show they had complied with the conditions before they were entitled to their commission. Hannan v. Fisher, 82 Mich. 208; Gannon v. Stansfield, 216 Mich. 440, and the cases cited therein. The other assignments of error have been considered but do not call for discussion. The judgment is affirmed, with costs to the appellees. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Steere, JJ., concurred.

Steere, J. Plaintiff filed this bill to compel specific performance of. a land contract given to bim by defendant Campbell, reading as follows: “50.00. Detroit, Michigan, January 28, 1916. “Received of Benjamin Robinson fifty dollars on account of contract for lot one (1) Yeaman’s addition to Highland Park village 105 Hamilton — 125 on Glendale — 128 on Leslie unrestricted. “The balance of four hundred and fifty dollars when contract is signed and twenty-five hundred dollars four months from date of contract. Seven thousand dollars on or before five years from date of contract. A good and merchantable title to be furnished. “W. C. Campbell.” The property which he sought to compel conveyance of was also involved in Craig v. Crossman, 209 Mich. 462, in which Crossman and Campbell were also defendants. In that case Craig sought, and obtained, specific performance of a land contract covering this property. While that suit was pending, Campbell, who is said to be an attorney, planted the seed for another lawsuit by negotiating this sale of the property to plaintiff. He claims to have then fully advised the latter or his agent of the Craig litigation, which plaintiff denied. Campbell had previously contracted to sell this property to Craig’s assignor, and then gave Crossman a deed to it, recorded April 27, 1912, which they claimed was in the nature of a mortgage. It is undisputed the Craig suit was begun in the circuit court of Wayne county, in chancery, on April 5, 1913. A lis pendens of the Craig suit was put on record at the time it was begun. Decree for specific performance was granted to Craig by the circuit court on March 20, 1917, which was appealed to and affirmed by this court on April 10, 1920. Plaintiff had constructive notice of the Craig suit by virtue of the lis pendens when he negotiated for and obtained the agreement of January 28, 1916, from Campbell to sell him the property for $10,000, on payment of $50 down with deferred payments for the balance. He also was a real estate operator running on high speed and says the price he agreed to pay “was way below the market.” He claimed that he then knew nothing about the Craig case, and relying on Campbell’s agreement for a mer chantable title he promptly and successfully proceeded, with the help of another real estate man named Osterle, to negotiate a sale of the property for $12,600 to W. W. Chapin on payment of $100 down, giving him a memorandum of agreement dated February 19, 1919, somewhat similar but more elaborate than that he received from Campbell. By its terms a second payment of $3,000 was to be made “upon the execution of a land contract, said contract to be executed within ten (10) days after delivery of a Burton abstract, brought down to date, showing a good, merchantable and sufficient title, free and clear of all liens and incumbrances of every kind and character.” Plaintiff then proceeded to investigate the title and submitted an abstract he obtained from Campbell to his attorney, who on reading it advised him of the situation and Campbell’s inability to give him a good, merchantable title. His efforts with Campbell produced no results beyond optimistic assurances, which were not satisfying to Chapin who pressed plaintiff to carry out the terms of his agreement with him. Unable to do so he finally obtained from Chapin a cancellation of their contract by returning him the $100 and paying him $75 more. After final demand of Campbell to furnish him a good, merchantable title, contingent on which he offered performance on his part, plaintiff filed this bill asking that Campbell be decreed to settle the imperfections in his title arising from the Craig suit and “furnish to plaintiff a good and merchantable title to said premises,” tendering .on his part payment and full performance according to their agreement. This suit asking as ground of equity jurisdiction specific performance of a contract made January 28, 1916, was begun to compel conveyance to plaintiff of a good and lawful title to property which by a deed dated April 9, 1912, and recorded in a liber of deeds of Wayne county April 27, 1912, Campbell had previously conveyed to Crossman, and for specific performance of a previous contract to convey Craig had, on April 5, 1913, commenced suit against Campbell and Crossman, with a Us pendens filed to protect his claim. Plaintiff had both constructive and actual notice of that situation when he brought suit. When this case was heard and decided specific performance of the contract which Craig held, compelling conveyance of the property to him, had been decreed in the circuit court and .affirmed on appeal. Concededly the court could not decree specific performance in plaintiff’s, favor, and his alleged ground of equitable jurisdiction was not established. Neither did it exist when he commenced his suit, for the rights of the parties in the Craig case of which he had notice were then fixed. Crossman was made a party to this suit under an allegation that while the legal title was in him he held it for Campbell and had given the latter an instrument in writing acknowledging he so held it. Apparently on that theory the bill prays that Campbell be decreed “to settle any claim, interest or lien that the other defendants herein had in and to said premises,” and then specifically perform by furnishing plaintiff a good, merchantable title thereto. Yet he knew before filing his bill that if Craig prevailed in his suit specific performance of Campbell’s agreement to sell him the property could not be enforced, and the only relief open to him was money damages for breach of contract. In the Craig Case the court squarely held that plaintiff therein was legally and equitably entitled to have conveyed to him by Crossman the premises in ’controversy “free and clear from all liens, interests or titles of defendant William C. Campbell * * ■* upon payment by plaintiff to defendant John M. Cross- man of a certain sum of money to be ascertained in manner following," etc. As said by this court in that case the decree and reasons for it are too lengthy to be detailed, but it is sufficient here to state that under the decree Crossman filed with the clerk of the court a good and sufficient deed of the property to Craig and the latter deposited with the clerk the amount required, which yet remained in custody of the court. Crossman claimed this money in part payment of $13,000 due him from Campbell as security for which he had held the property. Plaintiff had no contract or business relations with Crossman. He asserted that he had “no dealings with Mr. Cross-man whatsoever, only with Mr. Campbell who represented himself as owner of this property." It was successfully urged in the court below and is claimed here that the chancery court, having acquired jurisdiction under the equitable allegations in plaintiff’s bill, should retain it to declare a lien in his favor upon that fund for the amount of damages the court found he had suffered by reason of Campbell’s breach of contract. The trial court so held, and decreed a money judgment in plaintiff’s favor for $3,466 damages made up of the following items: Difference between the contracted purchase price and fair market value of the property $2,600, paid Chapin for release of contract $75, paid Campbell on purchase price $50, interest from August 19, 1916, to February 26, 1922, $741. For this a lien was declared on the fund which the court had said in the Craig Case should be paid to Crossman after the exact amount had been determined and he had deposited with the court a deed of the property to Craig, which it is conceded Cross-man did. To reach the result arrived at the chancery court must have assumed to pass upon the liability existing between Campbell and Crossman, and entertained the bill after its alleged grounds for equity jurisdiction failed in order to render a money judgment for damages arising out of a breach of contract with Campbell and declare a vendee’s lien upon funds awarded in the Craig Case to Crossman with whom plaintiff had no contract relations, or dealings. For the chancery court to exercise jurisdiction over matters not of general equity cognizance, but involved in the litigation, for the purpose of full and final adjustment of the whole controversy, some ground of equitable jurisdiction must in each case be not only asserted in the bill but established upon the hearing. Laubengayer v. Rohde, 167 Mich. 605; Lee v. Hedenskoog, 200 Mich. 427; Sharon v. Fee, 203 Mich. 152; James S. Holden Co. v. Realty Co., 216 Mich. 633; Brauer v. Laughlin, 235 Ill. 265 (85 N. E. 283); 36 Cyc. p. 747. Plaintiff contends that even though the equitable grounds alleged may fail the court can nevertheless, if any equitable grounds are proven, retain jurisdiction to declare and enforce a vendee’s lien for the amount shown equitably due him, and urges as controlling upon that proposition Albright v. Stockhill, 208 Mich. 468. In that case the bill was filed to rescind a contract for the trade or exchange of a quantity of real and personal property on the ground of fraud and misrepresentation charged in various particulars by which defendant induced plaintiff to enter into the contract. Many questions of fact and law were involved in that case including violation of the “bulk sales law” which the court discusses at length. While holding that under the complicated state of facts shown plaintiff was not in a position entitling him to a rescission of the entire contract, covering both real and personal property, the court found that under the evidence relating to a stock in trade and fixtures he had established equitable grounds for re lief, and retained jurisdiction to grant the same. As to it the court held that if the amount was in question an accounting might be had, saying in part: “While we do not think that a case for rescission of the entire contract has been made out by the evidence in the case, still it would be most inequitable to compel the plaintiff to lose the entire value of the stock in trade and fixtures, where the creditors are subjecting such property to the payment of their claims. * * * “To the extent that plaintiff has suffered and been damnified, or shall be damnified, he is entitled to relief against the defendant Stockhill and may have a lien for such sum upon the farm in Ionia county.” (Citing cases.) In that case the court sustained in part the equitable grounds of relief alleged. The facts there involved dealing with a complicated contract of exchange bear little analogy to the facts touching this simple contract-for sale of a single piece of land. Rescission, not specific performance, was the equitable ground of relief there asked and the lien allowed was on land involved in the exchange which the grantor could convey. Here plaintiff’s equitable ground for the relief asked was impossible of enforcement or performance •in whole or in part both at the time the bill was filed and when it was heard. We are cited to no authority extending the principle of vendee’s lien to loss of prospective profits. When the contract fails through the vendor’s default the generally accepted rule is that the purchaser is entitled to a lien upon the land for repayment of what he has paid under the contract. That rule is recognized in our early cases of Payne v. Atterbury, Harr. Ch. 414; Lockwood v. Bassett, 49 Mich. 546. We do not find that general rule repudiated or altered in later decisions. A further obstacle to application of the theory of a vendee’s lien is that Campbell had no title to or interest in the land contracted for which the court could subject to a lien. “Only lands involved in the contract, and only the title and interest of the vendor in such lands are subject to the lien. Lands which the vendor has no legal right to convey are not subject to the lien. There is no lien where there is no land or interest in land to which it may attach.” 39 Cyc. p. 2036. Plaintiff’s sole claim is for a money judgment for damages arising from breach of a land contract, specific performance of which is impossible of enforcement. No other subjects of equity jurisdiction are shown. The decree must therefore be set aside, with costs of this court to defendants, and the case remanded for either transfer to the law side of the court or dismissal, in accordance with the statute for transfer and this opinion. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ„, concurred. Moore, J., did not sit.

Fellows, J. This case involves the ownership of $5,655 on deposit in the First National Bank of Kalamazoo, standing in the name of Mrs. Charles Nurrie at the date of her death. Plaintiff, Charles Nurrie, was the husband of Mary Ann Nurrie; William L. Fitzgerald is the executor of her will executed shortly before her death in which she bequeathed $2,000 to her mother, $500 to her sister, and the balance to her husband. The bank was made defendant but did not participate in the hearing of the case and is not interested in the outcome. Plaintiff was a subcontractor under the Marble-Palmer Company, and in 1921 was engaged in the performance of his contract in laying rails for the Michigan Central railroad. He had about 65 men in his employ. During the fall of that year his contract took him to Decatur, Galien, Niles and Concord on the Air Line branch. He would only be at his home in Kalamazoo over Sundays. Plaintiff’s employees received their regular pay by checks of the Marble-Palmer Company sent direct to them and plaintiff paid them a bonus of five and ten cents an hour in cash. Plaintiff was paid by checks as his contract proceeded. The account in question was opened September 6, 1921. We are satisfied beyond doubt that the initial deposit and each succeeding one was made up entirely by payments made by the Marble-Palmer Company to plaintiff on his contract. While the teller of the bank is not as positive in his recollection as some witnesses are, the trial judge, who heard him testify and saw him on the witness stand, placed credence in his testimony and, taking it and other disinterested testimony in connection with the circumstances of the case, concluded the fund belonged to plaintiff. It not infrequently happens that the circumstances which develop in a case and which are established beyond cavil are more persuasive than the testimony falling from the lips of interested witnesses. Such is the instant case. The circumstances all point one way. They are aided by disinterested testimony and drive one reading this record to the conclusion reached by the circuit judge that the fund in the bank was the money of plaintiff and not the money of deceased at the time of her.death; that it was the money of the plaintiff when deposited and so remained. We shall not attempt to detail all the circumstances, but some should be noted. Plaintiff, although doing a large business, had no bank account in his own name. Unless this money was his money he had nothing to show for his season’s work, for the performance of his contract on the railroad, no money with which to conduct his operations. Defendant’s counsel insist that both had money, but the facts are that the money which plaintiff had was all paid by the Marble-Palmer Company after his wife’s death. When she died, so far as this record discloses, he was absolutely without present funds. Mrs. Nurrie had another account in the same bank, a checking account; the amount deposited in this account would indicate that it was for her personal needs and household expenses. Plaintiff was not in Kalamazoo during banking hours; he frequently needed currency to pay the bonus and the operating expenses of the camp; on occasions when plaintiff would be coming home in the evening or when Mrs. Nurrie would be going out to the camp, she would have currency in considerable sums in her "pocketbook or at the house. On one occasion she sent plaintiff $1,000 in currency by one of the men. The money was given the man at the bank. Mrs. Nurrie had no separate income and was not possessed of any property when she married plaintiff. Every dollar of the sum here involved was money paid by the Marble-Palmer Company to plaintiff for the performance of his contract. All of these circumstances sustain the somewhat indefinite recollection of the bank teller to the effect that when the account was opened Mrs. Nurrie explained that her husband would not be in town during banking hours, and that the account should be so carried as to permit her to draw the checks for the convenience of the business. Manifestly this money was the money of the plaintiff unless he gave it to his wife. Where money is paid to a wife or child there is a presumption that it is a gift or an advancement (Waterman v. Seeley, 28 Mich. 76); but this is a rebuttable presumption. Smith v. Smith, 215 Mich. 556. In the last cited case we quoted with approval from the case of Adlard v. Adlard, 65 Ill. 212, the following language: “It is, no doubt, as argued by appellant’s counsel, a natural presumption that a husband, placing his money in the hands of his' wife, to be invested in her name, intends it as a specific provision for her exclusive benefit, yet such a presumption would be unreasonable when a husband, a day laborer, deposits with his wife his daily, weekly, or monthly earnings as he receives them, with a view, as they accumulate, to a permanent investment, leaving such investment to her own judgment, retaining nothing in his own hands, and making no provision for his own future.” This language is particularly applicable to the facts of the instant case. If plaintiff had given this money to his wife he had practically stripped himself of his business capital and the means of. going ahead with his contract. The circumstances and the testimony above referred to rebut any presumption which the law created. We need not review at length the testimony introduced by defendant. No shadow of doubt can be cast upon that given by the executor. The mother and sister were called as witnesses'; both gave testimony tending to show admissions of plaintiff that the money belonged to his wife; both testified that they came to visit deceased in December and remained until after her death, that on the evening of their • arrival she showed the bank book of the account in question, said it was hers, and that plaintiff acquiesced in such statement, and that she said: “I have got more this time than what I had last time when you came.” Their last visit was the preceding May. Neither the account in question nor the checking account was opened until fall. She had no bank account in May, and, so far as the record discloses, no cash on hand at the time of their former visit. This is possibly but a slight circumstance but it challenges scrutiny of their testimony. Without further discussion of the testimony it may be said that we are clearly of the opinion, as was the trial judge who heard and saw the witnesses, that the money here involved is the money of the plaintiff. The money being that of the plaintiff, his right to it was not defeated by the fact that it was deposited in the name of another. Davis v. Savings Bank, 53 Mich. 163; Hamburger v. Bank of Detroit, 218 Mich. 173. The decree will be affirmed, with costs. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Wiest, C. J. Plaintiff filed the bill herein for specific performance of a contract for exchange of properties between himself and defendant Elizabeth Schuster, and to regain possession of an unrecorded deed given him by Elizabeth 'Schuster and obtained by her without his consent from the office of the register of deeds of Wayne county, where it had been left to be recorded. By answer in the nature of a cross-bill defendant Schuster asked to have the contract and the deed in question set aside for fraud. At the hearing defendant Schuster prevailed and plaintiff is here by appeal. Defendant Clara Coral was a lessee of the Schuster premises and has no interest in the litigation. In the course of the opinion Elizabeth Schuster will be considered the sole defendant. Defendant is a native of Austria-Hungary, is a midwife by profession and has been in this country since about 1910. Plaintiff came from Poland to this country in 1906. Plaintiff owned certain store premises in the village of Richmond, Macomb county, upon which there were two mortgages aggregating $3,000. He had sold the premises to Martin Kanar, his brother, on land contract, and Kanar had assigned the contract to Stanley Komasara. Defendant' owned a house and lot in the village of Hamtramck, Wayne county. June 26, 1919, by written agreement, the parties stipulated for the exchange of their properties; plaintiff to deed defendant the Richmond property, subject to the mortgages and land contract and pay $300, and defendant to deed plaintiff the Hamtramck property, with all fixtures and furniture in the house, subject to the lease to Clara Coral and a mortgage of $3,175, to be assumed by plaintiff. A few days before this contract was made defendant had listed her property with Walter Halicki, a real estate broker, and expressed the desire to exchange for country property on account of the physical condition of her husband. Very soon after the listing Mr. Halicki brought the ■parties together, and the' agreement mentioned was ■prepared by him. In this agreement Mr.,Halicki was ■to receive a commission from both parties. Defendant claims she was induced to enter into the agree ment and to subsequently deed her property to plaintiff by false and fraudulent representations made to her by defendant and by Mr. Halicki, with reference to the Richmond property. At the time the agreement was made on June 26, 1919, and when they passed deeds on July 11, 1919,. defendant had never seen the property in Richmond, and had no information about it except as given her by the plaintiff and Mr. Halicki. The claimed false and fraudulent representations made by Mr. Halicki were made in the presence of defendant and plaintiff made the same representations. This is one of the cases where the trial judge had the decided advantage of seeing the witnesses. It is inconceivable that defendant would have traded her home for the Richmond property without seeing such property unless it was pictured to her by plaintiff. She claims it was described to her as a large brick store oh the main street, having an elevator and steam heat, and occupied on one side by a hardware store, paying $140 rent each month; that it was sold on land contract requiring the vendee to pay $75 per month and interest, and the vendee had paid a substantial amount upon such contract; that there were two mortgages on the property amounting to the sum of $8,000, but they were held by a party who cared only for the interest and was in no hurry for the principal. Plaintiff denies most of the claimed representations but was forced to admit enough thereof to seriously weaken his denial of the others. The evidence shows that the store is not on the main street, was not occupied as a hardware store, and, in fact, had not been occupied as a store for from three to five years. It had no steam heat, and the elevator was a hand-operated contrivance. The property was under contract of sale but the purchaser on land contract, finding the same wholly unproductive, was anxious to pass the burden to some one else. The two mortgages were held by a Mrs. Canfield of Mt. Clemens and long past due, and plaintiff had been threatened with foreclosure months before. We are of the opinion that plaintiff represented to defendant that the store was occupied and, therefore, a revenue producer, and the holder of the mortgages was in no hurry for payment. These were material representations, for defendant was exchanging all the property she had for this property in Richmond and plaintiff knew she could not obtain any immediate revenue from the property and could not meet the mortgages, long due and pressed for payment. It is clear that had plaintiff informed defendant of the truth about the matters mentioned there would have been no deal made. Plaintiff seeks to parry the effect of his representations by the claim that defendant stated she did not care about the store building because she was only purchasing his equity in the land contract with Komasara. It does not help plaintiff to attempt to show defendant such an ignoramus as this would indicate. Neither does this claim square with the representations he made in answer to her inquiries about the store, nor explain why he told her the store building would be worth $60,000 if in Detroit. The store was well characterized by a witness from Richmond as a “white elephant.” We pass the question of Mr. Halickfs double agency, and rest our decision upon the representations made by the plaintiff. We have read the record with care and we are persuaded that the learned circuit judge reached the right conclusion. The decree is affirmed, with costs to defendant Elizabeth Schuster. Fellows, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. On April 30, 1920, plaintiff grazed or ■slightly cut the skin of her left forefinger while handling index cards in the office of the defendant Modern Pattern & Machine Company, where she was employed as its auditor and office manager, receiving a salary of $60 per week. Infection developed in the finger followed by blood poisoning which extended through her left arm and shoulder resulting in serious illness and total incapacity for some months. The accident was duly reported by defendants to the (then) industrial accident board and an agreement made by them to pay her compensation at the maximum rate during total disability in accordance with the terms of the compensation act. This was regularly paid up to and including April 8, 1921. On July 13, 1921, defendants filed a petition with the department of labor and industry (successor of the industrial accident board) asking to be relieved from further payments on the ground that plaintiff had regained her health and sufficiently recovered from the effects of her injury to perform the duties of the position in which she was employed when injured, and had, since March 28, 1921, been engaged in remunerative employment, although for a less wage than she was receiving when injured owing to changed industrial conditions and resulting reduction of wages. Plaintiff answered denying full recovery and alleging injury of a permanent nature by reason of which she could not perform certain of the duties of her former position, and consequent inability to secure such employment. The commission of the department of labor and industry denied defendants’ petition, finding and ruling, so far as material here, as follows: “2. That on account of applicant’s disability she is unable to perform all the work she was performing at the time of her injury, and that on account of said disability she is unable to earn as much wages as she was earning at the time of her injury. “3. The applicant was receiving at the time of the accident an average ■ weekly wage of $60 and at the present time she is receiving $30 per week. “4. That the applicant should in accordance with the provisions of the law, receive 60 per cent, of the difference between what she was earning at the time of the accident and what she is able to earn at the present time, not to exceed $14 per week. In this case, the maximum of $14 should be paid. “5. That there is now due and payable from April 9, 1921, the sum of $280 which amount should be paid to said applicant, and receipts therefor filed with the commission.” After the infection had been relieved and she had apparently recovered her health, plaintiff applied for her former position, stating she felt able to perform its duties. Owing to changed business conditions and. falling off in volume of its work, the Modern Pattern & Machine Company had reduced the number of its employees, reduced the wages of some and eliminated the office which she had formerly held. She was offered a position on its clerical force at much less wages than she received in her former position, which she declined. In the latter part' of March she found employment as bookkeeper with the Harvey G. Wilson Company at $30 per week, and was yet so employed at the time of hearing the petition. She testified that she was also doing “the banking and.other things” there, her work being similar “in a way” to her former position. When asked what her former duties were with the Modem Pattern & Machine Company she answered, “I audited the books, employed the office help and made collections.” On August 8, 1921, when her testimony was taken, she stated of her then disabilities that the fingers of her left hand and her left shoulder were yet stiff, she could not raise that arm clear up and down, demonstrating what she conceded to be about an 18-inch arc from a vertical position, that the condition of her arm remained about the same since she resumed work although there might be a little improvement, that when she attempted to raise it higher it pained her, and she could not use the typewriter as well as before, or use the telephone with her left hand and at the same time write with her right hand as formerly, she being right-handed. That the infection had disappeared and plaintiff recovered her general health appears to be undisputed. Four physicians who had examined her were called as witnesses. They testified to finding limitation in the free movement of her left shoulder as a result of previous infection in that point. None of them testified that it disabled her from performing the duties of the employment in which she was engaged at the time of the accident as described by her and a Miss Herter, who was one of the office force 'with her at that time. Three of the four physicians testified they saw nothing in her physical condition to interfere with her performing the duties of her former position. Dr. Couchman, called as her witness, was not questioned on that subject. He testified to discovering a limitation in the function of her left shoulder and that it was smaller than the right. He measured her hands “as for a glove,” finding the left 7 and the right 7% inches,, but found her forearms of equal measurement. On cross-examination he stated that it was common to find the right hand larger than the left. The other physicians confined the limitation of function which they found in her shoulder to an outward and upward movement, which Dr. Drescher described in non-technical terms as inability “to fully raise her arm.” It is urged in behalf of defendants that there is no testimony in the record which can be said to fairly support the finding that any limitation of function in plaintiff’s shoulder disables her from performing her duties at the employment in which she was engaged when injured and earning whatever wages that position commands; that the fact she was receiving but $30 per week at the time of the hearing and had received $60 per week at the time of the accident is in no sense a controlling factor; and, assuming a partial disability existed, the method of computation adopted by the commission of the department of labor and industry is not in harmony with the requirements of the employer’s compensation act. In the exercise of its prerogative to find the facts the commission found partial disability based on meager evidence to support such finding as applied to plaintiff’s former employment, but sufficient, as we conclude, to support the same within the exclusive province of the commission to determine the facts. No finding was made, however, as to the degree or percentage of plaintiff’s partial disability, nor determination of the proportionate extent of impairment of her earning capacity in the line of her employment, as of the time of her accident. Pertinent portions of sections 10 and 11, part 2 of the workmen’s compensation law, as amended (Act No. 64, Pub. Acts 1919, and Act No. 41, Pub. Acts 1917 [Comp. Laws Supp. 1922, §§ 5440, 5441]), provide as follows: “Section 10. While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee a weekly compensation equal to sixty per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than fourteen dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks from the date of the injury. * * * “Sec. 11. * * * (e) The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured em ployee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury.” In only finding an indefinite, partial impairment and then resorting to the simple method of computing their award under section 10 on the basis of a percentage of difference between what plaintiff was earning before and after the accident, the commission adopted an easy method which ignored the requirement of section 11 that the average weekly earnings of the injured employee should be computed according to the provisions of this section as shall fairly represent the proportionate extent of impairment of her earning capacity at the kind of work she was doing when injured, to be fixed as of the time of the accident but to be determined in view of the nature and extent of her injury. Not only must sections 10 and 11 be construed together, but in the light of other provisions of the act. If the amount to be awarded was based entirely on the provisions of section 10 it would be unfair either to the employer or employee unless the rate of wages in that line remained constant. If there was a surplus of such labor with low wages at the time of the accident and labor scarce with wages abnormally high at the time of the hearing it would manifestly work an injustice to the employee, while the reverse of such conditions would likewise be unfair to the employer. There was in this case undisputed evidence of depressed industrial conditions at the time of the hearing, resulting in surplus of clerical labor and reduced scale of wages, and of the reverse at the time of the accident. Plaintiff’s brother, who was sworn as a witness in her behalf, testified that he was regularly employed as an accountant at $60 per week in January, 1921, lost his position because the company for which he worked failed, he had been unable to secure employment in that line during the past seven months and had taken employment selling stocks at $25 per week. If plaintiff had not met with the accident, it is not an unreasonable inference that she would have met with a somewhat similar employment experience as her brother. The proportionate impairment in earning capacity in that line of employment by reason of and considered as of the time of the accident — her loss of power to earn or what she could earn if the accident had not befallen her — is the question to be fairly determined in view of the nature, extent and continuance of her injury as shown at the time of the hearing, where the issue is partial incapacity. The wages she did earn at the time of the accident and what she is able to earn at the time of the hearing are made elements in reaching a determination, but the degree or percentage of partial impairment, if shown,, as well as changes in wages and conditions of labor, are material considerations in arriving at impairment of earning capacity. The commission is authorized to review an award of weekly payment at any time on application of either party. It is common knowledge that there are periods of prosperity and of depression reflected in changes of labor conditions and wages. These as well as the percentage of partial disability of the injured employee are elements entering into a legal determination of the proportionate extent of partial impairment of earning capacity at the work in which the employee was engaged at the time of the accident. “As bearing upon that question evidence might be received of subsequent earnings in the same or other employment, and of changes in wages and conditions of labor. VanDriel v. Stevens, 200 Mich. 291. The rule is stated in 17 C. J. p. 898.” Norris v. Elevator Co., 216 Mich. 554. The subject is instructively reviewed in the annotations to Woodilee Coal & Coke Co. v. M’Neill, as reported in 2 A. L. R. 1637 (App. Cas. [1918] 43), which holds that in passing upon the degree of partial impairment regard should be had to extraneous circumstances, including as a factor a general rise or fall in wages of the workman’s calling. The finding of the commission ignores elements essential to a valid award, and is not in accordance with the statute or the legal rights of the parties. The award must be set aside and the case remanded for such further proceedings as the parties may desire and the commission may determine, in accordance with the statute and this opinion. Reversed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit.

Bird, J. Defendant corporation was formed to manufacture and market an automobile wheel, with an authorized capital of $500,000. It was authorized by the Michigan securities commission to sell $227,900 of the authorized capital. On January 3, 1919, defendant made a written contract with plaintiff to sell $220,000 of the stock at a commission of 20 per cent. The contract provided that plaintiff should sell a certain number of shares each month. For the months of January, February and March his sales were in excess of the contract provision. For the months of April, May and June they were somewhat behind. On July 21st defendant, by letter, canceled the contract, and gave as a reason therefor that the sales were not being made fast enough. It is claimed by plaintiff that in the latter days of June he had an agreement with defendant modifying certain terms of the contract relating to the time in which the stock should be sold, the amount to be sold each month and to his sales headquarters. Plaintiff continued to sell under the contract as modified until defendant refused to co-operate with him, which made it impossible for him to continue making sales. Up to the 30th day of August, when he quit, he had sold stock to the amount of $123,410. This suit was brought' to recover his commission on the unsold portion of the $220,000. A jury awarded him a verdict of $10,346.84. The trial court, referring to defendant’s letter of cancellation, used the following language to the jury: “On or about July 21st, defendant sent a letter. You have heard that read in evidence and commented upon at length, and the purport of it is that the defendant attempted to cancel this contract by that letter.” The point made is that defendant did cancel the contract by letter, and the language of the court that defendant attempted to cancel it was an improper statement of the fact. We do not regard this as very-important. There was no question about the letter of cancellation being sent. That was not a controverted fact in the trial, and the reference to it as an attempt to cancel the contract could work no injury to the defendant. Had there been a question whether the letter was sent or received the court’s language would then have been more significant. Defendant assigns error on the refusal of the court to give the following requests: “(a) I charge you that before the plaintiff is entitled to recovery in this case that he must show one of two things: First, that there was a new agree- ment between the parties in reference to the written contract made in parol on or about the first day of July, 1919, abrogating and changing the terms of the written contract; or, second, that there was a waiver by the defendant company of their rights to insist upon the strict performance of their terms of the contract. “(b) I charge you that the only testimony in the case in regard to a change in the terms of the contract between the parties is the testimony of the plaintiff, Mr. Prentice. This alleged claim is denied by the witnesses for the defendant, and it is for you to determine from the testimony of these witnesses whether or not any subsequent agreement or understanding was made between the parties in reference to the time of performance.” These requests were not given in the language of the requests, but were very fully covered by the general charge. The court expressly charged the jury that the plaintiff could not recover on his contract unless they were first convinced from the testimony that there was a modification of it, or unless defendant agreed to waive certain provisions of the contract, and unless they so found they were instructed to render a verdict for the defendant. The court elaborated his instructions along this line to a considerable extent. We think there was no opportunity for the jury to have been misled on this question. Complaint is also made because the trial court refused to give other requests. These have been examined with reference to the charge and we are of the opinion that these are also covered by the general charge, so far as they are material. The question is raised that the verdict is against the great weight of the testimony. There was not much dispute about the facts. The issues were simple and not complicated. The chief issue was whether the contract had been modified by agreement of the parties in July. Plaintiff was the only witness to the fact that it had been modified. Certain of defendant’s agents with whom he dealt denied it was modified, except in one particular. Plaintiff’s evidence, was in direct conflict with defendant’s agents on this', phase of the case. Evidently, from all the attendant, circumstances, the jury believed the plaintiff, and we. do not think they are subject to criticism for the conclusion which they reached. We think the trial court, was right in refusing to set aside the verdict because against the great weight of the evidence. The judgment is affirmed. Wiest, C. J., and Fellows, Clark, Sharpe, Moore, and Steere, JJ., concurred. McDonald, J., did not sit.

Clark, J. Luka Tomkovich, Milica, his wife, and Rocco Pavicevich were partners doing a small grocery and meat business at the village of Wakefield under the firm name of Pavicevich & Tomkovich. Tomkovich and wife made a promissory note to defendant Mistevich due July 29, 1916, for $257. On July 18, 1916, the* note not being due, Mistevich filed with a justice of the peace an affidavit for a writ of attachment reciting that “there is justly due him from Luka Tomkovich and Milica Tomkovich, copartners, the sum of $257,” and that: “He has good reason to believe and does believe that defendants are about to remove from the county, and refuse and neglect to pay or secure payment of the debt, and that defendants are about to assign and dispose of their property, not exempt by law from levy and sale on execution, with intent to delay, hinder and defraud their creditors, particularly deponent.” The writ was issued accordingly. The bond in attachment was signed by Mistevich as principal and by John Raic as surety. It was in the sum of $600 and ran to “Luka Tomkovich and Milica Tomkovich, co-partners.” Its condition was: . “If said Spiro Mistevich shall pay to the said Luka Tomkovich and Milica Tomkovich, copartners, all damages and costs they may sustain by reason of the said attachment, if the said Mistevich shall fail to recover judgment in said suit, then this obligation to be void, otherwise to remain in full force.” The constable having the writ, the justice of the peace, Raic, and it seems others, then went to the store. They went in Raic’s automobile. Mistevich was also there. They found the store locked. Raic owned the building. By removing hinges he opened a door. All goods and chattels in the store were seized and appraised at $704.41. Within three or four hours after the levy it was abandoned by the officer at Mistevich’s direction and possession of the stock and a key which had been procured were tendered back to Tomkovich. The attachment suit was dismissed. The three partners claimed damages for wrongful levy. Pavicevich assigned his claimed right or rights of action to the other two partners, Tomkovich and wife, and they brought suit against Mistevich and Raic. The declaration has three claimed grounds of action set forth in six counts. Counts 1 and 4 are on the attachment bond against Mistevich as principal and Raic as surety reciting that the firm of Pavicevich & Tomkovich owned the goods and chattels seized on the writ, and . “That by reason of the wrongful attachment and seizure of the goods of said plaintiffs and said Pavicevich a large amount of meats and groceries in said building was spoiled, injured and damaged to the extent of, to-wit, $300; and that their general standing in the community was impaired.” It is also stated that plaintiffs expended money in defending the attachment suit, and that Mistevich has not paid to plaintiffs all or any of the damages and costs so sustained by them. A judgment is claimed in the sum of $600, the penalty of the bond. Counts 2 and 5 set forth a claimed cause of action by plaintiffs in their own behalf and as assignees of Pavicevich because the attachment suit was commenced and prosecuted by defendant Mistevich, the defendant Raic aiding and abetting him, maliciously arid without probable cause. Counts 3 and 6 sound in tort, are upon an assignment by Pavicevich, and claim damages against both defendants by reason of the wrongful seizure of Pavicevich’s undivided one-third interest in the partnership property. Plaintiffs had verdict and judgment in the sum of $500. The jury found for defendants on counts 2 and 5, they having been instructed to return a separate verdict on such counts. Defendants have removed the cause to this court for review. The attachment suit was against Luka and Milica Tomkovich, copartners. There was no such partnership entity, and of course no property of such entity to be attached. Assuming, but not stating, that the officer here might have attached the interests of Luka and Milica Tomkovich in the partnership of Pavicevich & Tomkovich, he had no right to seize the specific chattels. What is the interest of a partner? “Such interest must be treated as consisting of a right to an aliquot share of what remains after the payment of partnership debts and the adjustment of accounts between the partners.” Kunze v. Cox, 113 Mich. 546 (67 Am. St. Rep. 480). “The interest which a partner has in a firm consists usually, if not always, in his share of the assets after all the accounts are settled among the partners, and all debts paid.” Lambert v. Griffith, 50 Mich. 286. A case in point is Haynes v. Knowles, 36 Mich. 407. There the officer sought to attach the interest of one of two partners. It was said: “The property seized was hides, meat, fresh and salt, and a lot of articles used in carrying on a market. The evidence tended and was found by the jury to show a complete ouster of both parties and the entire destruction of their business. “The evidence introduced further showed a levy on all the specific property, item by item, and its ap praisal in the same way, on the 10th of April, 1875, under the attachment in question. * * * “Such a levy cannot be justified. A levy on _ the interest of a partner, as intimated in Sirrine v. Briggs, 31 Mich. 443, if it can be made at all under an attachment, cannot be made on specific chattels. Such a levy is a trespass.” The wrongful levy here was a trespass for which the firm of Pavicevich & Tomkovich had a right of action, and for which plaintiffs had no right of action on the bond. The principal and surety in the bond, as such, may not be held liable for a trespass by the. officer having the writ. Pavicevich was not injured by the instituting of the; attachment suit. He was injured by the trespass. He was not a defendant in attachment and had no-right of action for malicious prosecution on account, thereof. 26 Cyc. pp. 6-8. And a right of action for malicious prosecution is personal and cannot be assigned. 26 Cyc. p. 66; 18 R. C. L. pp. 18, 62; 1 C. J. p. 202; 3 Comp. Laws 1915, § 12383, and cases cited. Nor can plaintiffs, merely as assignees of Pavicevich, on counts 3 and 6, recover one-third of the damages occasioned the partnership by the seizure on the theory that he had a separate grievance. It was said in Bigelow v. Reynolds, 68 Mich. 344: “But, furthermore, there is a fatal objection to the cause of action as declared on in the second count. Plaintiff declared as a member of a partnership' whose business was- interfered with, and claimed an undivided third of the damages for that injury. There, is no rulé of law which will allow a partner to bring a. separate action at law for his supposed share of a. partnership grievance. Partners do not own undivided shares in such a .sense that each can sue separately for his part in a common wrong. Such actions are not severable, and all must join in bringing them.” Defendants say that a wife may not enter into a contract of partnership with her husband and become liable for debts of the firm, citing Artman v. Ferguson, 73 Mich. 146 (2 L. R. A. 343, 16 Am. St. Rep. 572), and that therefore she may not sue here. The premise may be good but the conclusion is bad. A wrong against the firm will not be excused for that reason. In view of what has been said it is unnecessary to 'consider whether these claimed causes of action might •be joined. Accepting suggestion of counsel we will , mot discuss whether plaintiffs may recover on the bond the amount of their disbursements in defending the attachment suit, $13. For the errors pointed out the judgment is reversed, with costs to defendants. New trial granted. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Fellows, J. Defendant Mudge is a real estate* dealer in Detroit. Plaintiff is his sister-in-law. Under the advice and with the assistance of Mr. Mudge, plaintiff, from the year 1915 to the fall of 1917, engaged in some 17 successful real estate deals. By the fall of 1917 she had acquired some equities in improved property. Before that she had rented this property and the rent took care of the monthly payments she- was required to make. There came a time when some of the houses were unoccupied and she was obliged to draw on other sources to keep up her payments. In this situation she suggested that Mr. Mudge find a property for which she could trade her equities so as to be relieved of the burdensome payments and have her property together' in one piece. As a result of advertising Mr. Mudge located a farm of 120 acres in St. Clair county. He and his associate, Mr. Foraker, went up and looked the farm over. They talked with the tenant, with neighbors, learned the assessed valuation of the farm and went all over it. Mr. Mudge reported the result of his trip and soon thereafter plaintiff went up* with Mr. Mudge’s family and looked the farm over herself. The farm had formerly been owned by Mrs. Boucher, but some years before that defendant Siegel had foreclosed a mortgage on it. He had, however, a verbal arrangement with the Bouchers that if they made a sale or trade of the farm they should have all they received over the amount of his debt. A trade was arranged and we think it fairly appears that the. value of the farm and of plaintiffs equities were both fixed at an inflated or trade price. Plaintiff transferred her equities to the Bouchers. Mrs. Boucher gave a quitclaim deed to Siegel and he and plaintiff entered into a land contract for the sale and purchase of the farm at the amount of the Siegel, indebtedness. With the approval of plaintiff, the Bouchers turned over to Mudge a small equity for his. services to both parties but he realized nothing on it and the contract was forfeited. The contract between plaintiff and Siegel bears date November 26, 1917. On June 19, Í92Ó, plaintiff filed this bill alleging fraud on the part of Mudge, Siegel and Boucher in the transaction and seeking rescission of the contract. All defendants answered, and defendant Siegel by way of cross-bill sought foreclosure of his contract. The trial judge dismissed plaintiff’s bill and granted defendant Siegel affirmative relief. The trial court disposed of the case as one of fact and we think the same course should be pursued here. A careful reading of this record of 436 pages, together with the briefs of counsel, is convincing of the fact that plaintiff has suffered a financial loss but she has signally failed to establish that such loss was due to the fraud of defendants or any of them. The evidence very strongly preponderates that no fraud was perpetrated or attempted to be perpetrated on her. Her loss is due in part to a shrinkage in land values and in part to her own perverseness. No doubt cash sales of farm land in the locality of this farm were scarce and trades which Mr. Mudge arranged were not accepted by her, one of which would have turned her a very handsome profit on the entire transaction. We are convinced that Mr. Mudge and his business associate, Mr. Foraker, made a careful investigation of the farm and its surroundings before going ahead with the deal, and Mr. Mudge reported to plaintiff what they found, no more and no less. Afterwards plaintiff saw the farm herself. It was, when well managed, a productive farm; there was a recently rebuilt barn on it, a fair farm house needing some repair, and the farm was operated by tenants without satisfactory results. In the absence of fraud we can not afford plaintiff relief solely on the ground of her misfortune. It is insisted by counsel for appellant that there should be a reference in order to have an accounting by Mr. Mudge; but long before this suit was instituted he rendered plaintiff a full accounting of all the deals he had conducted for her. Not one of the items in his account is successfully assailed or seriously questioned. Under these circumstances we see no necessity for an order of reference. Counsel also in general language assails the amount of the decree on Mr. Siegel’s cross-bill but he does not point out any item which was improperly allowed and introduces no testimony conflicting with that given by Mr. Siegel as to the amount due him. These defendants are in no way chargeable with the loss sustained by the plaintiff. The decree must be affirmed, with single costs to defendants. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. On May 30, 1920, through the explosion of an acetylene tank, Mr. Donnelly, the plaintiff, sustained an injury which resulted in the loss of one of his eyes. He brings this suit to recover his loss. On the 29th of March, 1912, he took out an accident insurance policy in the ¿Etna Life-Insurance Company of Hartford, Connecticut. The policy was for one year and was renewed yearly, from time to time, until 1920, when Mr. Donnelly was informed by Raymond Visscher of Holland, one of defendant’s agents, that before issuing a renewal the company desired to have him take an examination. This Donnelly refused to do. Visscher took the matter up with the general agent in Grand Rapids, and after more or less correspondence Mr. Visscher had a talk with the general agent, who instructed him to tell Donnelly that a “bull” had been made by someone in their office and that everything was all right, that Donnelly need not worry. Donnelly claims that, relying on this statement, he paid no further attention to the matter, supposing that he was protected. It is further claimed that an agent of the defendant company shortly thereafter went to Holland and consulted ‘ with some physician, who had recently examined Donnellytfor a life insurance policy, and that subsequently, on the 29th day of March, the company issued a renewal certificate and mailed it to its agents in Grand Rapids, renewing the policy for another year from the 29th day of March, 1920, to the 29th day of March, 1921, but directing the agent not to deliver it unless the insured was in good health. Donnelly was injured before the renewal certificate was delivered to him, but he claims that under the circumstances there was a completed, contract for insurance, that there was a constructive delivery of the policy, and that it was in force and effect at the time of the injury. That if it were not, he had a valid verbal agreement with an authorized agent of the defendant for insurance, and that the company was liable thereon. In his declaration filed as commencement of the suit, the plaintiff counted upon a written contract of insurance. A few days before the trial, without leave of the court, he filed an amended declaration containing an additional count in which he claimed damages for the failure of the defendant to deliver the policy in conformity to an oral agreement with the agent for its renewal. The defendant claims that the plaintiff’s policy expired on March 29, 1920, and was not renewed; that there was no delivery of the renewal certificate, no valid oral agreement for renewal; and that therefore the plaintiff was not insured at the time of the accident. The defendant offered no proofs. At the conclusion of the testimony both parties moved for a directed verdict. Both motions were denied. The plaintiff received a verdict for $3,970. The first question discussed by defendant in its brief is that the amended declaration adds a new and distinct cause of action, and that the circuit judge should have granted his motion to strike it from the files or at least should have required the plaintiff to elect between the two causes of action. Counsel claim that the case of Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231 (18 Am. St. Rep. 398), is controlling of this question. We do not think so. In that case, as in this, the original declaration counted on a certain written contract for insurance. This court reversed a judgment for the plaintiff, holding that he could not recover on the contract. He then sought to amend the declaration by adding several counts, one of which set out an oral contract for insurance different from the contract counted on in the original declaration. When the question came to this court for review, it was held that the amended declaration introduced a new and distinct cause of action. The reason for so holding is not given in the opinion of the court, but I think we may assume it was because the amended declaration counted on a different contract from that declared on in the original declaration. In reviewing this case in Strang v. Branch Circuit Judge, 108 Mich. 232, Chief Justice Long, speaking for the court, said: “There the plaintiff brought suit on the written contract. Failing to recover, he then sought to amend by striking out a part of the contract, which he claimed had been fraudulently inserted; that is, he sought to sue on the contract, and in the same action at law to eliminate a part of the writing.” In the instant case the action under both counts of the declaration is on the same policy of insurance. It is well stated in plaintiff’s brief as follows: _ “We submit that in the amended declaration plaintiff seeks to recover under the same policy and exactly the same amount of damages which he seeks to recover under the original declaration. He alleges the same policy to be in full force and operation, the only difference being that under the original declaration he sets forth that the policy at the time of the accident was in full force and effect by reason of renewals from year to year, and in count two of the amended declaration, he sets forth that this same policy was in full force and effect by reason of a renewal thereof made by the agent of defendant, although the renewal certificate had not been delivered to the defendant (plaintiff) in person. No change or amendment whatever of the policy is sought.” In Strang v. Branch Circuit Judge, supra, Chief Justice Long quoted with approval the rule as stated in 1 Enc. Pl. & Prac. p. 564, as follows: “As long as the plaintiff adheres to the contract or the injury ^originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not the introduction of a new cause of action. The test is whether the proposed amendment is a different matter, — another subject of controversy, — or the same matter more fully or differently laid, to meet the possible scope and varying phases of the testimony.” And in Ball v. Claflin, 5 Pick. (Mass.) 303 (16 Am. Dec. 407): “The subject-matter of the new count must be the same as of the old. It must not be for an additional claim or demand, but only a variation of the form of demanding the same thing.” Since these rules and the decision in Connecticut Fire Ins. Co. v. Monroe Circuit Judge, supra, in 1889, the courts have b.ecome more liberal in the matter of amendments; they have slowly grown away from the early idea that amendments must be strictly restricted to the matters of the original pleadings. In the “furtherance of justice,” this court has given to our statute of amendments (3 Comp. Laws 1915, § 12478), a very broad and liberal construction. The amendment does not introduce a new and distinct cause of action and the circuit judge was not in error in denying counsel’s motion to strike it from the files. It is next urged by counsel that there was not a completed contract of insurance between the parties at the time of the accident. The facts necessary to a determination of this question are undisputed. The plaintiff had been carrying an accident insurance policy with the defendant for several years. It was his custom to pay the premiums on receipt of the renewal certificates. The policy in question would expire March 29, 1920. The defendant had general agents in. the city of Grand Rapids, and a soliciting agent in the city of Holland where plaintiff resided. On February 5, 1920, the defendant wrote to its agent in Grand Rapids that before renewing plaintiff’s policy it would require “a medical report bearing upon the present condition of his urine.” The plaintiff refused to comply with this request, claiming that having carried the policy for some time he had a vested interest in it and was entitled to a renewal without the expense of an examination. He suggested that having recently passed an examination for $25,000 life insurance policy with the Massachusetts Mutual, the defendant could have the benefit of the medical report on that examination. The defendant agreed to accept this in lieu of the examination requested in its letter of February 5, 1920. This report was furnished, and on the 29th day of May, 1920, the defendant mailed to its agents at Grand Rapids a renewal certificate dated March 29, 1920, with instructions not to deliver it unless plaintiff was in good physical condition at the time. This letter was not received by the agent until June 1st, two days after plaintiff’s accident. There is no provision in the policy in regard to renewals. There is no stipulation in the application nor in the policy that it shall not become binding unless delivered to the insured while in good health. There is nothing in the written contract to indicate when the policy should become effective. Treating the question independently of plaintiff’s claim that.the general agent agreed that the operation of the policy should not be postponed until a delivery of the renewal certificate, we are of the opinion that under the other facts a delivery was not essential to the validity of the policy. The contract was complete when the risk was approved and the renewal certificate signed by the defendant and transmitted to its agent. At that time the plaintiff had met all of the conditions imposed by the company in granting a renewal. As delivery was not necessary to the validity of the policy, nothing further remained to be done by either party to complete the contract. “It is well settled that, where a contract of insurance has been agreed upon, no policy need be made out, or, if made out, its delivery is not essential to the validity of the contract.” Michigan Pipe Co. v. Insurance Co., 92 Mich. 482 (20 L. R. A. 277). “While it is generally held, in the absence of an agreement to the contrary, that actual delivery is not a prerequisite of insurance, provided the contract is otherwise complete, and it is evident that the parties intended it should be effectual without manual delivery of the policy, although the ultimate issue of one was contemplated, it is also well settled that— “ Tf there be a provision or an agreement that the policy shall not be in force until actual delivery to the insured, the contract is not consummated nor the company bound in the absence of such delivery.’ 1 Joyce on Insurance, § 98.” Bowen v. Insurance Co., 178 Mich. 63 (51 L. R. A. [N. S.] 587). In the instant case there is no provision in the written contract that the policy shall not be in force until delivered. On the contrary, plaintiff testifies to an oral agreement with the general agent that delivery would not be necessary for his protection. We think the language of Connecticut General Life Ins. Co. v. Mullen, 118 C. C. A. 345, 197 Fed. 299 (43 L. R. A. [N. S.] 725), is applicable to this case: “The approval of the risk and the executing of the policy and the mailing of it by the company to its agents constituted a contract between the parties which was binding from the date of said approval and mailing, unless applicant, at the time of such acceptance, was in a poorer state of health than when he made his application. Being in the same state of health as when he applied for the insurance, he was insured, regardless of the fact that the policy was not actually delivered to him, or that he did not execute a formal undertaking to pay the premium.” As formal delivery was not essential to a completed contract, the fact that the defendant directed its agent not to deliver the renewal certificate unless plaintiff was in good health has no bearing on the question which wei are discussing. Though it is conceded that plaintiff was in good health up to the time of the accident, it was no part of the contract that he must be in good health at the time of the delivery of the renewal. In this and in other important particulars the case is distinguished in its facts from Bowen v. Insurance Co., supra, cited and relied on by counsel for the defendant. The undisputed evidence shows that there was a completed contract of insurance between these parties at the time of the accident. As the amount of damages is not in dispute, the circuit judge should have directed a verdict for the plaintiff for the reasons above stated. The verdict was for the plaintiff. Under the law and the evidence he was entitled to it. It is unnecessary to discuss any of the other questions presented by the record. The judgment is affirmed, with costs to plaintiff. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

McDonald, J. The parties entered into- a written contract by which the plaintiffs agreed to sell to the defendant certain real estate in the city of Detroit. The defendant gave as the first payment two checks for $200 and $300, respectively. • When these checks were presented for payment at the bank it was found that the defendant had no funds there. When appealed to, the defendant at first agreed to make the checks good, but later declared that he did not want the property and abandoned the contract. The checks were not paid. Subsequently the plaintiffs sold the property to another party for $500 less than the defendant agreed to pay for it. The plaintiffs then brought this suit to recover the amount of the two checks. The declaration is on the common counts in assumpsit to which is attached a bill of particulars which recites that the action' is brought because of defendant’s failure to pay the checks in question. The defendant pleaded the general issue with notice that the checks were obtained through fraud, misrepresentation and duress, and were without consideration. At the conclusion of plaintiffs’ case the defendant offered no proofs but made a motion for a directed verdict. The motion was granted. Assigning this as error the plaintiffs have brought the case here for review. This suit is for a part of the purchase price of the property. When the defendant abandoned the contract, plaintiffs could have maintained an action against him for the entire purchase price. If they had taken that course it would have been necessary for them to retain title to the property so that they could perform oh their part. If defendant is required to pay the purchase price he is entitled to a deed. Plaintiffs have sold the property to another and cannot give him a deed. By parting with all of their interest they have made performance on their part impossible, and therefore cannot insist on performance by the other party. They are not now entitled to the purchase price or any part of it. If they have any remedy it is in an action for damages for breach of contract. The circuit judge did not err in directing a verdict for the defendant. The judgment is affirmed. Defendant will have his costs. Wiest, C. J., and Fellows, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Fellows, J. Plaintiff was arrested by defendant, a member of the police force of Detroit, without a warrant, as he was leaving the baseball grounds at the close of a game; he was taken to the police station and detained until released on bond; upon a hearing he was promptly discharged and brings this action for #false imprisonment. Defendant gave notice of justification, alleging that he arrested plaintiff for violating Act No. 355, Pub. Acts 1917 (Comp. Laws Supp; 1922, § 7780), in his presence by jostling and roughly crowding people unnecessarily. He pleaded no other justification. Upon the trial both parties gave their version of the circumstances surrounding the arrest. Their testimony was in sharp conflict. Defendant, among other things, gave testimony tending to show that plaintiff attempted to steal his revolver from his pocket. This was positively denied by plaintiff. The trial court, in a charge which is not complained of, fairly submitted to the jury the case made by the pleadings, including the justification set up in defendant’s notice. He declined to give the following instruction: “That a peace officer is justified in arrests made without warrant in cases of felony alike whether he acts on his own knowledge or upon sufficient information derived from others if it be shown that the person arrested was reasonably suspected of guilt. He-may so be justified also where a felony has been actually, or is being, or is about to be, committed and where, although not in fact committed, the officer has reasonable grounds for believing that one was about to be committed.” The refusal to give this instruction is the sole error assigned. The trial judge was quite right in declining to submit to the jury a defense of justification which had not been pleaded. In White v. McQueen, 96 Mich. 249, Mr. Justice Grant, speaking for the court, said: “The defense that the defendant had probable cause to believe that plaintiff had been guilty of a felony was inadmissible under the pleadings. Notice of this defense should have been given. Mr. Chitty says: “ ‘Whoever assaults or imprisons another must justify himself by showing specially to the court that the act was lawful. And a plea justifying an arrest of the plaintiff upon the ground that a felony had been committed, and that there was reasonable ground to suspect and accuse the plaintiff, must distinctly state the specific reasons for suspecting the plaintiff. These are positive rules of law in order to prevent surprise on the plaintiff at the trial by the defendant then assigning. Various reasons and causes of imprisoning the plaintiff of which he had no notice, and which consequently he could not be prepared to meet at the trial on the plea of not guilty, on fair and equal terms with respect to the evidence and proof of facts-.’ 1 Chit. PL. 501; Wade v. Chaffee, 8 R. I. 224; Boynton v. Tidwell, 19 Tex. 118. “It is manifestly of more importance to the plaintiff that he should be informed by the plea of the facts relied upon for his arrest without a warrant than when he is arrested upon a warrant, which he has the right to see and read when he is arrested.” The judgment will be affirmed. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Steere, J. This action in ejectment was brought by plaintiff as trustee of the heirs of John Torrent, deceased, to recover from defendant possession of property described as “a portion of blocks five hundred forty-six (546), five hundred forty-seven (547) and five hundred forty-eight (548) of the revised plat of the city of Muskegon, Michigan.” Defendant pleaded the general issue with special notice of claim of title to the property acquired by adverse possession. The action was commenced by summons on March 11, 1921. On February 7, 1922, a verdict in ejectment for plaintiff was tendered by a jury under direction of the court and judgment entered thereon in its favor. It appears that the original government description of which the property in question formed a part was patented to one Theodore Newell in 1841 and by mesne conveyance John Torrent acquired title to the same on June 9,1903. On March 15,1906, the auditor general conveyed to the State of Michigan “entire block two hundred two Smalley’s survey, city of Muskegon, according to plat thereof,” previously bid in for delinquent taxes of 1895 to 1901, inclusive, and also by deed of the same date, “entire block 199 and the west half of block 299 of Smalley’s survey of the city of Muskegon,” for delinquent taxes of 1895 to 1905, inclusive. The lands so conveyed include those described in plaintiff’s declaration under new numbers on the revised plat of the city. These conveyances were recorded in the office of the register of deeds of Muskegon county on November 16, 1906. On October 30, 1909, Huntley Russell, commissioner of the State land office, sold and conveyed to John Torrent entire block 199 of Smalley’s survey of the city of Muskegon, “now known as entire blocks 546, 547 and 548, according to the map of 1903,” it being recited amongst other things that the deed was given “under section 131, Act No. 206, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901.” This deed was recorded in the office of the register of deeds of Muskegon county January 12, 1910. As against plaintiff’s record proof of title defendant introduced testimony to the effect that he had .been in possession of the premises in question since the year 1903, and in 1905 had built a house thereon, since which time he had lived in the house and occupied the premises, the value of the house and other improvements made by him thereon amounting to $700, and that he claimed ownership of the same by prescription. It was also shown by other testimony that he took possession of the land as a squatter without .right or title thereto, it then lying open, unoccupied and unimproved ; that he never fenced any portion of it, cleared but a small patch for a garden and never paid any taxes upon the land, but did for two years pay a personal tax on his house assessed against him as personal property on a valuation of $500. At conclusion of proofs the court directed a verdict for plaintiff, holding that the conveyances of March 15, 1906, from the auditor general to the State, and from the State, by the commissioner of the land office, to Torrent in 1909, “started a new chain of title” and defendant had not been in possession of said premises for a sufficient length of time since March 15, 1906, to establish title by prescription. Defendant’s assignments of error are that the “court erred in overruling the motion of defendant to direct a verdict in his favor, * * * in holding that the said State homestead deed cut off all prior titles (and) in directing said jury to return a verdict for the plaintiff.” In deciding the case the trial court held immaterial and struck out all evidence of plaintiff’s title prior to the deeds from the auditor general to the State of Michigan of March 15, 1906, holding that by such conveyances the State became completely vested with an absolute title in fee to said property distinct and independent of any preceding transactions in relation to it which could in any way affect the title which the State might thereafter convey. It is contended for defendant that, 'having become owner of this land in 1903, it was Torrent’s duty to pay all taxes then due or thereafter levied upon the same; that by neglecting to do so, permitting the land to. be conveyed to the State for delinquent taxes and thereafter buying it from the State, he acquired no other nor greater title than he had in the first instance, but simply re-acquired and was confirmed, in the title he originally had, and he could not by, such method take advantage of his own negligence in failure to pay his taxes as they came due. In support of this contention counsel cite cases sustaining the general proposition that one who ought to pay the taxes on property cannot, by omitting to do so, purchase the same at a sale for nonpayment of taxes and thereby strengthen his title; that a deed so obtained by him would convey no other or greater title than he previously had, but such a payment of money to the State will be regarded as a payment by him of his taxes and not as a purchase of the property. On the part of plaintiff it is contended that rule has no application where absolute title has been acquired by the State and the property placed in the list of tax homestead lands pursuant to provisions of the statute upon that subject, when the original owner thereafter has no more interest in it than any stranger to that title. Section 4126, 1 Comp. Laws 1915, authorizing conveyance to the State by the auditor general of lands bid in for delinquent taxes for five years or more after time for redemption had expired with no application to pay, redeem or purchase and no action taken to remove cloud or set the taxes aside, declares, “the title to the State shall be deemed absolute in and to said lands.” When, pursuant to required findings and prescribed steps, a deed of such lands from the auditor general to the State is executed and delivered to the commissioner of the State land office, no litigation can be instituted “to vacate, set aside or annul the said determination of the said auditor general and the commissioner of the State land office made as aforesaid unless instituted within six months” after the determination is made. The various required steps leading up to deeding such lands to the State provide amongst other things that they shall no longer be subject to taxation, until again sold and deeded by the State (§ 4129), and shall be held subject to entry as homestead land unless reserved for other purposes as authorized (§ 4130). If no application to homestead the same is made for three years or more after they become subject to homestead entry they may, following a proper appraisal, be sold for not less than the appraised valuation to any person applying to purchase the same, to whom the land commissioner shall execute a deed “which shall convey to the purchaser the same interest as provided for a deed where said lands have been homesteaded as provided in this section.” That provision is: “Such deed shall convey an absolute title to the lands sold, and shall be conclusive evidence of title in fee in the grantee,” which it is made the duty of the State to protect. Under these proceedings the former owner becomes a stranger to the title to the lands so forfeited and deeded to the State. The State takes absolute title to the same in .consideration of the taxes he owed, and relieves him from any obligation to pay further taxes thereon. His rights and duties in connection with the land as owner and taxpayer are at an end. The distinction between continuing taxation and tax sales under the general tax laws, and a transfer to the State under this special tax homestead law is clearly pointed out in the opinion of Justice Carpenter in Griffin v. Kennedy, 148 Mich. 583. Concurring in that opinion, Justice GRANT, referring to former decisions, said: “I am unwilling to cast any doubt upon the many decisions of this court holding that the State acquired the absolute title to these tax lands. The original owner, after decree and sale, may in a proper proceeding attack the title for certain reasons. When the title is in the State, the original owner has no more interest in it than any stranger to that title. He may purchase the land from the State as may any other person.” Vide, also, Chiodo v. Williams, 180 Mich. 367; Darrow v. Railway Co., 188 Mich. 664. When Torrent bought this land from the State in 1909 his original title and obligations in relation to it had been wiped out three years before. He bought from the State as a stranger to the title and his previous ownership bore no relation to the purchase. The deed he then received was made by the act under which he purchased “conclusive evidence of title in fee in the grantee.” When defendant, Dick Doctor, entered into possession of these premises in 1903, “without right or title and merely as a squatter,” and when he built and began living in a house he erected thereon in 1905, the land had been sold for delinquent taxes and bid in by the State, so continuing annually until 1906 when it was deeded to the State and no longer assessed for taxes, thereafter remaining open to homestead entry for the next three years. Though residing upon the land, he neither purchased tax titles to it nor made homestead entry of it, as he might have done. He paid no taxes assessed against it, but recognized the house he had built upon it and occupied was personal property by paying two years’ taxes assessed against it as such. During all this time the land stood forfeited for nonpayment of taxes and bid in by the State which held title thereto. Hickey v. Rutledge, 136 Mich. 128; Blake v. Grondin, 141 Mich. 104. In 2 C. J. p. 215, it is said: “The weight of authority is that the principle that the statute does not run against the Commonwealth applies not only as to her sovereign right of original dominion, but also as to every secondary or derivative right of property.” And in note 48: “Where lands have been forfeited to the State under the delinquent tax laws or otherwise, (1) they cannot be the subject of adverse possession while the title thus acquired remains in the State. Bagley v. Wallace, 16 Serg. & R. (Pa.) 245. (2) and if the lands were held adversely to the owner at the time of the forfeiture the adverse character of the occupancy ceases when the State acquires title and cannot be asserted against either the State or its grantee;” citing numerous cases including Armstrong v. Morrill, 14 Wall. (U. S.) 120. This rule is recognized in Merritt v. Westerman, 165 Mich. 537, as follows: “An examination of these cases will show that, in some of them, title was forfeited to the State for nonpayment of taxes, and, under the familiar rule that title by adverse possession cannot be acquired against the State, such forfeiture interrupted the running of the statute.” Under these authorities defendant could acquire no adverse possession of this land until the State deeded it to Torrent in 1909, and he falls far short of showing the statutory period of adverse possession requisite to establish title by prescription. The deed from the land commissioner to Torrent was in full form with recitals showing compliance with the law. As such it could not be and was not questioned. When introduced in evidence, it not only made a prima facie case for plaintiff, but was, under the statute, conclusive evidence of title in fee in the grantee. We think the trial court rightly concluded from the language of the statute, as discussed and interpreted in former‘decisions, that it was the intent of the legislature all previous titles and rights of individuals should be cut off and a new, distinct chain of title started in and from the State when in pursuance of the special statute the auditor general deeded the land to the State following the prescribed time and proceedings by offer, sale and conveyance from the State to “any person” applying for purchase thereof as the act authorized. The judgment will stand affirmed. Wiest, C. J., and Fellows, McDonald, Clark, Bird, Sharpe, and Moore, JJ., concurred.