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willing to accept so much as could be gathered from three acres of onions which defendants offered to deliver them, and insisted on the deficiency being made up from onions grown on other parts of the defendants' lands.

There was no evidence whatever given or offered of any fraud or concealment, unless the refusal to comply with plaintiffs' demands could be so regarded. The commissioner dissolved the attachment, and was of opinion that there had been no breach of contract, and that defendants were in the right. This finding, whether correct or not, on the construction of the contract, was certainly a finding that defendants had designed no wrong, and negatived fraud. There was evidence which he had a right to act upon in reaching such a result; and the burden of proof was on the plaintiffs to show fraud, which cannot be inferred from a mere breach of the contract. The specific fraud on which the affidavit for attachment was made was not in any way sought to be made out by any testimony. There was no finding, therefore, by the commissioner, which we can review, that would justify us in disturbing his conclusions; and it is not very clear to us how he could have done otherwise.

The order must be affirmed with costs.

The other Justices concurred.

ABEL HILL V. AMOS SNYDER.

Damages for collision on highway.

In an action for damages from defendant's careless driving it is not admissible on cross-examination of the plaintiff to ask him as to his own habits of running horses on the highway, or of being intoxicated while driving, if it is not pretended that he was indulging either of the habits at the time of the injury.

Error to Clinton. Submitted June 23. Decided Oct. 6.

TRESPASS ON THE CASE. Plaintiff brings error.

A. Stout for plaintiff in error.

Reversed.

A. Cook for defendant in error. Where a drunken or reckless driver sues for an injury caused by a collision resulting from his own driving, the negligence of the other party is immaterial: Whart. Neg. § 332; Butterfield v. Forrester 11 East 60; Clayards v. Dethick 12 Q. B. 446.

MARSTON, C. J. Hill sued defendant in trespass to recover damages for injuries sustained caused by defendant's careless driving upon a public highway. The plaintiff was called as a witness in his own behalf, and upon cross-examination he was asked if he was not in the habit of running horses in driving on the highway up to the day of the accident; and whether he was not in the habit of using intoxicating liquors to excess whenever he came to the village, and frequently drove out of town while under the influence of liquor. These questions were objected to, and the objection was sustained by the justice, and we have no doubt but that the ruling was correct. It was not pretended that at the time of the injury plaintiff was either running horses or intoxicated. His previons habits, therefore, in these respects, would afford no excuse or justification to the defendant; rather should he have been more careful because thereof, if known to him. The judgment of the circuit court must be reversed and that of the justice affirmed, with costs of both courts.

The other Justices concurred.

HENRY GOSS V. COMMON COUNCIL OF VERMONTVILLE.

Where mandamus is sought to compel a municipal council to approve a liquor seller's bond, the petition for the order to show cause should

show respondent's reason for refusing, if any was given, and the circumstances of refusal; otherwise the reason must be presumed sufficient and the order may be refused.

MANDAMUS. Motion for an order to show cause. Submitted and denied October 5.

M. V. Montgomery for the motion.

WILLIAM CHAMBERLAIN IMPLEADED WITH WILLIAM H. EWING V. WILLIAM JACKSON.

Questions of fact-Partnership.

Facts tending to show a partnership are for the jury in an action involving partnership liability.

"Error to Allegan. Submitted April 29. Decided Oct. 7.

ASSUMPSIT. Defendant Chainberlain brings error. Affirmed.

Pope & Hart and Philip Padgham for plaintiff in error. Fenn & Donaldson and F. J. Littlejohn for defendant in

error.

COOLEY, J. Ewing & Chamberlain were sued as partners for the price of apples which Jackson claimed to have sold them. There was no dispute respecting the sale, but Chamberlain claimed that the purchase was made by Ewing alone. The questions raised by the record all relate to the evidence given to show the alleged partnership, and whether any of such evidence legally tended to prove the fact.

We discover no error in any of the rulings in the reception of evidence, and we are entirely satisfied that the court was right in leaving the case to the jury. Nothing remains but to affirm the judgment with costs.

The other Justices concurred.

MICHIGAN AIR LINE RAILWAY Co. V. HARVEY MELLEN ET AL.

Railroad aid bonds-Accounting-Payment-Deed to trustee.

Township aid bonds were delivered by a railroad company to one of its directors to pay for depot buildings which he had put up and agreed to convey, but did not do so. Held, on a bill for an accounting, that he should be charged with the bonds.

Where several persons either as co-partners or joint contractors had done work under an agreement with a railway company, a payment made to one of them in township aid bonds binds the rest if with full knowledge of the facts they decline to repudiate the payment and make a distinct claim upon the company.

Creditors who have received bonds in payment cannot retain them and question their validity or value at the same time; if they wish for a payment in cash they must give up the bonds.

A creditor cannot keep money paid to him to satisfy any claim but that on which it was actually paid, unless his debtor consents.

A debtor when making a payment has the right to direct its application, and the creditor cannot refuse to apply it accordingly and credit it on some other account.

It is a fraud upon the rights of a railway corporation if a director who buys lands for the use and benefit of the company and pays for them with its funds, takes the title in his own name or jointly with others; and the nominal grantees would hold in trust for the company.

Appeal from Macomb. Submitted April 8. Decided October 13.

BILL FOR ACCOUNTING: to compel a conveyance of the premises to complainant; to compel the delivery of certain bonds to complainant; and to enjoin defendant from suing in ejectment for the premises referred to in the bill. Complainant appeals. Reversed.

Irving D. Hanscom and Ashley Pond for complainant.

Dwight N. Lowell, A. B. Maynard and James B. Eldridge for defendants.

MARSTON, C. J. From the evidence we find the following facts in this case:

44 MICH.-21

44 321

120 362

Defendant Harvey Mellen was director of the Michigan Air Line Railroad Co.-complainant company having acquired its rights and property by purchase-and as such director he had charge of the eastern end of the company's road, negotiated and acquired for it right of way and depot grounds, and acted for the company quite generally.

Other directors of the company acting with Mellen had agreed that certain lands should be purchased from the Bailey heirs for depot grounds in the village of Romeo, and Harvey Mellen agreed to negotiate for and purchase such grounds. He with the assistance of a brother and John Phelps succeeded in purchasing the lands, and the title thereto was taken in their joint names as owners. Phelps afterwards conveyed his interest to defendant Tackles. Defendants erected a depot building upon these grounds and other work was done by them, and they now claim that the Railroad Company must pay them the value of such improvements, and the price paid by them for the land to the Baileys, when they will convey to the company, subject to certain rights which they claim they were to have in and to an elevator and lime house which they erected on their own account upon these grounds under an agreement with the company.

These depot grounds purchased from the Baileys were purchased by Harvey Mellen acting as a director and paid for by him in bonds belonging to the company drawn out of the bank where deposited for that purpose. This seems too clear to be really open to dispute. The small amount paid in cash-less than $100-the difference between the face of the bonds and the price of the land, is not worthy of notice in this connection. It does not appear that either of the other parties, John Phelps or John N. Mellen, put one dollar into the land. We also find as a fact that Harvey Mellen afterwards received from McNaughton, managing director of the company, twenty-five hundred dollars in township aid bonds, which at their par value was more than sufficient to pay for depot buildings and other improvements; that when he received these bonds he agreed that a deed to the company, if not then executed, would be and be delivered and

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