of failure so to do. The defendant's requests not given were properly refused.

In this case the defendant admits that no proper inspection of the goods was made, although there was ample opportunity, leaving only the question of fact to be determined as to whether the goods sold and received were merchantable No. 1 and B harness leather of standard quality, as known to the trade. The charge of the court was not prejudicial.

It is not necessary to discuss the other assignments of We find no error in the case.

error.

The judgment of the circuit court is affirmed.

MOORE, C. J., and CARPENTER, GRANT, and BLAIR, JJ., concurred.

CUMMINGS v. BAKER.

1. APPEAL AND ERROR-FINDINGS-CONCLUSIVENESS. Findings supported by the evidence are conclusive.

2. NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

Alleged newly discovered evidence that is mostly cumulative and does not clearly appear to be newly discovered is not ground for a new trial.

Error to superior court of Grand Rapids; Newnham, J. Submitted April 5, 1905. (Docket No. 19.) Decided

October 31, 1905.

Assumpsit by J. Avery Cummings against Eugene E. Baker for money had and received and for work and

labor done. There was judgment for plaintiff, and defendant brings error. Affirmed.

Dunham & Malcolm, for appellant.

E. A. Maher, for appellee.

MCALVAY, J. Plaintiff sued defendant in assumpsit to recover for money and wages claimed to be due and owing him under the following circumstances: Plaintiff was a bartender in the saloon of one Parish in Grand Rapids, who was owing him $200 for wages, and claims that, by an arrangement between defendant, Parish, and plaintiff, defendant, on October 2, 1903, purchased by contract in writing from Parish his saloon, stock, and fixtures for $1,350, and that defendant paid cash $500 and by mutual agreement between all the parties the $200 which Parish owed plaintiff was applied and received on said purchase, leaving a balance of $650, which by the terms of the contract defendant agreed to pay in monthly installments of $50 each. On the same date, for the purpose of allowing the saloon to run without apparent change of ownership, and also, as plaintiff claims, because. defendant did not want his name to appear in the business on account of membership in certain societies, Parish gave plaintiff a power of attorney to run and operate the saloon. Plaintiff also claims that he gave defendant at different times $150 cash, under an agreement that, if he purchased one-half interest in the business, he was to be credited with all these amounts. Plaintiff claims that this arrangement was not carried out, that defendant and Parish combined to get rid of him, and that defendant refused to pay on his contract, and Parish took possession on forfeiture. Defendant and Parish afterwards jointly leased other premises in which Parish was to run a saloon. The wages claimed are for 16 weeks' services as bartender at $10 per week.

The claim of defendant is that he loaned plaintiff $500 to make a payment on the saloon which plaintiff purchased

from Parish, that the contract was made with him for the purpose of securing this loan and for no other purpose, and that plaintiff never worked for him and is indebted to him for a balance unpaid on said loan. The case was tried by the court without a jury, and facts found and conclusions of law thereon favorable to plaintiff. Amendments to these findings were presented by defendant and denied; the court at the same time further filing more extended findings of fact. To these findings defendant also proposed amendments, which were denied, and defendant excepted to such denial. A motion for a new trial was also denied.

The evidence presented on the trial by the parties was extremely contradictory; but there was abundant proof to support the findings of the trial judge. We do not find any error in the refusal to grant a new trial. The judgment was not excessive under the evidence, and, as already stated, was supported by the evidence. The claimed newly discovered evidence was mostly cumulative, and we agree with the court that it did not clearly appear to be newly discovered.

The only other exceptions properly brought to the attention of this court by defendant in his brief relate to questions allowed by the court upon examination of the defendant and one of his witnesses. These questions were asked on cross-examination, and those asked defendant were clearly proper. The other witness was an attorney, and but one of the questions objected to is questionable, and, if the court allowed considerable latitude in this examination, the answer to the question could not be prejudicial. We find no error in the case.

The judgment of the circuit court will be affirmed.

CARPENTER, GRANT, MONTGOMERY, and HOOKER, JJ., concurred.

1. MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS-NOTICE— EVIDENCE.

As bearing on the question of notice to a village of a defect in a sidewalk, whereby a pedestrian was injured, it is competent to show the condition of the walk throughout the block where the attention of the street commissioner and his workman was called to the walk as an entirety.

2. SAME-DUTY TO INSPECT.

When village officials have actual notice of conditions which call for the inspection of a sidewalk, an examination is required such as a prudent man would make under like circumstances.

3. SAME-EVIDENCE-EXAMINATION AFTER ACCIDENT.

In an action for injury from a defect in a sidewalk, testimony
as to examinations of the walk by tests two or three months
after the accident is not too remote.

4. EVIDENCE-EXPERT TESTIMONY-HYPOTHETICAL QUESTION.
An objection that a physician testifying as an expert was asked
whether an injury, such as the witness discovered, produced
in the manner described, could cause an injury to the medulla,
rather than whether such an injury would be likely to cause
such results, goes to the weight of the testimony, rather than
to its admissibility.

5. SAME.

That a question to a physician as to certain results being caused by an injury was in such form as to permit him to use knowledge of the injured person's condition not embodied in the question may not be complained of, where it appears that the physician's opinion was based on conditions discovered by him and previously fully detailed to the jury.

Error to Gratiot; Stone, J.

Submitted June 13, 1905. (Docket No. 42.) Decided October 31, 1905.

Case by Maranda Hunter, administratrix of the estate of Bruce Hunter, deceased, against the village of Ithaca, for negligent injuries to her intestate, resulting in his

141 539 150 1250

death. There was judgment for plaintiff, and defendant brings error.

Affirmed.

John M. Everden (Searl & Monfort, of counsel), for appellant.

John T. Mathews, for appellee.

MONTGOMERY, J. The plaintiff sued for damages for injuries sustained by her husband which are claimed to have caused his death. Plaintiff recovered, and defendant brings error. The decedent, while walking with his son on South street in the defendant village, was tripped and thrown forward by one end of a loose plank. The son stepped on the plank near the end, and it appears that the stringers were defective and decayed, causing the plank to become loosened and fly up. It also appears that the stringers were originally so placed as to leave 12 to 14 inches of the planks overhanging on one side of the walk. Complaint is made of rulings admitting testimony as to the condition of the walk at points on the same block and near to the place of injury. Complaint is also made of rulings as to notice of the defect, and of the instructions upon that subject.

The undisputed testimony showed that the village street commissioner had his attention called by a member of the common council to the sidewalk on South street. This was shortly before the accident. He walked over the entire length of it, and directed repairs to be made, but did not discover the defect in question. He employed one Wood to make these repairs, instructing him to fix the sidewalk on the north side of South street between Pine River street and Elm street, to find out what was defective and fix it. The inspection made by the street commissioner was by walking over the walk, and that made by Wood was made in the same manner. Neither discovered the defects. We have no doubt that, as bearing upon the question of notice, it was competent to show the condition of this walk through the block, particularly