leged right to withhold the remainder of the purchase price until the vendor should perfect the title. He admits that after this the vendor offered to throw off $100 of the purchase price if he would pay, and his own attorney admits a tender of a deed, not only of lot 26, but 18 inches more land upon which the house stood, which he bought for the purpose. This second suit he did not defend. His attorney testified that at the time of the trial the defendant offered such a deed, and was told by counsel that the defendant "did not claim any rights under the contract; that Schulte had forfeited his rights under the contract, and he simply wanted his money back." It is elementary that a man is bound by his election of one of two inconsistent rights, and when the defendant not only delayed rescinding, but insisted on occupying under the contract to the extent of defending and defeating the vendor in an attempt to recover possession, he unqualifiedly affirmed the contract, and limited his remedy to an action at law for damages. Judgment reversed, with costs of both courts, and no new trial granted. The other justices concurred.

1. Glass in a window 50 or 60 feet above a street, where pedestrians frequently passed, was left for some time in a broken condition, until, on a pleasant day, with but little wind, several pieces fell to the sidewalk, injuring a pedestrian. Held, that it was for the jury to say whether the owner of the building was negligent.

2. Wind, which the owner of a building should have anticipated would cause glass to fall from a broken windowpane above a sidewalk, was not the proximate cause of an injury to a pedestrian on whom it caused the glass to fall, and hence does not relieve the owner from liability for the injury.

3. A witness cannot give an opinion as to the danger, as to pedestrians, of a broken windowpane above a sidewalk.

4. Conceding that opinion evidence as to the danger as to pedestrians of a broken windowpane above a sidewalk, is competent, the witness need have no special qualifications.

5. An objection to a question for incompetency does not advise the court that its form is objectionable.

6. A medical expert cannot be asked a hypothetical question which includes, as a part thereof, his understanding of the testimony of another witness.

7. In an action against a corporation for an injury caused by a fall of glass from a broken windowpane, evidence was introduced of a statement by defendant's president, in an interview with plaintiff's mother after the accident, that the window was defective. Held, that an objection to this for incompetency was insufficient, since it might have been intended to mean that the president had no authority to negotiate a settlement, or that he was not engaged in such negotiation, and therefore was not acting in the company's business, or that the statement was made in an attempt to compromise, and should not be treated as an admission.

8. A judgment of $3,500 damages for a stiff arm will not be interfered with on the ground that it is excessive.

9. There is no error in making a new trial in an action for personal injuries dependent on a refusal to remit a portion of the verdict, where the amount of unliquidated damages is the only question involved, unless the discretion of the court be abused.

Error to circuit court, Wayne county; George W. Smith, Judge.

Action by Augusta Detzur, by Pauline Detzur, her next friend, against the B. Stroh Brewing Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Henry M. Duffield (Thomas S. Jerome, of counsel), for appellant. James H. Pound, for appellee.

HOOKER, J. The plaintiff was injured by a piece of glass, which fell from a window of the defendant's building, cutting her arm severely, and permanently impairing its use, according to some of the testimony in the case. There is testimony upon the part of the plaintiff tending to show that a round window in the upper story was broken for some days or weeks before the accident, and that it was a piece of glass from this window which injured the plaintiff. The defendant offered testimony tending to show that there was no broken window in the building on the day before the accident, and that the glass causing the injury came from a square window, in a lower story, and its fall was caused by a high wind blowing at the time. The theory of the only count relied upon is that the defendant created and maintained a nuisance, in an insecurely fastened and broken window sash and glass, whereby the plaintiff was injured. A verdict of $10,000 was rendered in behalf of the plaintiff. A motion being made for a new trial, the court denied the same, upon condition that the plaintiff remit the sum of $6,500 from the verdict, which was done. The defendant has brought error.

Error was assigned upon the refusal of the court to charge the jury that there was no evidence of negligence. It is urged that it cannot be inferred from the mere fact that there was an accident. There is testimony tending to prove that there was a broken window; that, immediately before the accident, a window or glass was heard rattling, and the witness looked up, and saw triangular pieces of glass falling from the window which she had previously seen in a broken condition; that several pieces fell to the sidewalk; and that it was a pleasant day, with but little wind. The window was 50 or 60 feet from the ground, in a building that stood but a few feet from the street. If it is true that a pane of glass was shivered, as, we think, there was some testimony tending to show, we cannot say that a jury could not legitimately find that it was negligence to leave it in that condition until the action of

the elements loosened it, and caused it to fall. It is true that, where there is no evidence suggestive of a negligent cause, no recovery should be allowed upon a charge of negligence, but this is not such a case. Circumstances consistent with the plaintiff's theory are found in the case, and offer a reasonable opportunity for the inference that the injury resulted from a careless disregard of the broken and loosened condition of glass in a window, above a street, where pedestrians were frequently passing.

Counsel say that it is common knowledge that there is nothing dangerous in itself in a broken windowpane. We know that it is common to see cracked and broken windows, and we recognize the fact that some of them are considered safe; but others are sometimes seen which are so palpably unsafe, because of the apparent danger of the pieces falling or being shaken out when the sash is shaken by wind, or otherwise, that they may well be considered dangerous. As we cannot say that all cracked windows are safe, we must submit the question to the jury, when the testimony tends to show a condition of the window indicating danger.

In this connection we will mention the question of proximate cause. Counsel contend that, if the glass fell by means of its being dislodged by the wind, the negligence of the defendant was not the proximate cause of the injury, and they complain of a refusal to instruct the jury that in such event the plaintiff should not be allowed to recover. The negligence complained of is the maintenance of a window in such a condition that the glass was liable to fall out; not necessarily from its own weight, but under the natural conditions and strain to which it was likely to be subjected. It might not be negligent to leave a broken pane, if assurance could be given that it would be undisturbed by wind or by

use.

But wind is an every-day occurrence. It is a condition, not necessarily a cause, and one which should be taken into consideration before determining that a broken glass is not likely to fall. The wind may have been a concurring circumstance, but it cannot be said to have been the proximate cause, and the broken glass the remote cause. It cannot be true that a defendant who is liable if a defective glass falls from its own weight on a quiet day is to be relieved from responsibility because its fall is due to the pressure of a wind which should have been anticipated.

The testimony of two witnesses was relied upon to prove that a round window in the upper story had been broken for some time. One of these witnesses testified that she had noticed the window before; that it had a hole in it, etc.; she had noticed the rattling of these panes. She was then asked: "Q. Will you state as to whether or not, before this, when you would hear this rattling, whether you thought that was a safe window or not? Ans. No. sir." The testimony was

inadmissible. If we overlook the fact that the question did not ask her to state her opinion upon oath, but called merely for a previously existing opinion, and assume that she meant to give it as her opinion at the time of the trial that the glass was unsafe, such testimony was incompetent. It was proper for her to state the condition of the window, and the circumstances which came under her observation; but it was for the jury to draw inferences and conclusions, as to danger or safety. The condition of this window as to safety was one of the principal points in the case. Upon the unsafe condition of this window the case may be said to have hinged. Analogous questions have been passed upon repeatedly by us, as shown by the cases cited in the brief of counsel. But the objection now urged was not made, and it is fair to presume that the trial court did not consider it. The reason given for the objection was that she was not shown to be an expert. The court probably considered it a matter requiring no special qualification, and in this he was right; and we can hardly believe that he would have admitted the testimony had the, objection been made which was made in this court.

Again, error is assigned upon a hypothetical question asked a medical expert. The objection appearing upon the record is that it was incompetent, which did not advise the court that the form of the question was objectionable. The precise point argued here is that the question made the witness' understanding of the testimony of another witness a part of the question,-a practice which has been criticised by this court, though permitted in some states. See People v. Aiken, 66 Mich. 476, 33 N. W. 821; Kempsey v. McGinniss, 21 Mich. 137; Lawson, Exp. Ev. p. 144 et seq.

Error is also assigned upon the introduction of admissions of Bernard Stroh, the president of the company, who is said to have stated to the plaintiff's mother, in an interview some hours after the accident, that the windows were defective. Objections were made to the questions, but no ground whatever was stated, in two instances. A third objection to this testimony is based upon the ground of incompetency. While there may be cases in which a court could not fail to understand the point relied upon, even under so general an objection as incompetency, there are others where such an objection would not even suggest the real objection. In this case it might have been intended to mean that the president had no authority to negotiate a settlement, or that he was not engaged in a negotiation for that purpose, and, therefore, that he was not acting in the company's business, or that, the admission being made in an attempt to compromise the matter, it should not be treated as an admission. If anything is settled by our decisions, it is that, unless an objection clearly advises the trial court of the specific ground upon

which it is made, it will not justify a reversal. Among the cases supporting this rule are the following: Rash v. Whitney, 4 Mich. 495; Hoard v. Little, 7 Mich. 468; Young v. Stephens, 9 Mich. 507; Morrissey v. People, 11 Mich. 332; Hollister v. Brown, 19 Mich. 166; Gilbert v. Kennedy, 22 Mich. 118; Snyder v. Willey, 33 Mich. 490; Campbell v. People, 34 Mich. 351; Ward v. Ward, 37 Mich. 259; Stevens v. Hope, 52 Mich. 69, 17 N. W. 698; Merkle v. Bennington Tp., 68 Mich. 145, 35 N. W. 846; Jennison v. Haire, 29 Mich. 207; Heymes v. Champlin, 52 Mich. 26, 17 N. W. 226; Jochen v. Tibbells, 50 Mich. 33, 14 N. W. 690; Bulen v. Granger, 63 Mich. 311, 29 N. W. 718; Abbott v. Chaffee, 83 Mich. 256, 47 N. W. 216; People v. Moore, 86 Mich. 134, 48 N. W. 693; Hutchinson v. Whitmore, 95 Mich. 592, 55 N. W. 438; Association v. Fisher, 95 Mich. 274, 54 N. W. 759; People v. Durfee, 62 Mich. 491, 29 N. W. 109.

A motion for a new trial was made upon the following grounds: (1) The damages were excessive; (2) the damages are so excessive as to evince passion, prejudice, partiality, or corruption of the jury; (3) the verdict is against the weight of evidence. The court found that the damages were excessive; that they were not so excessive as to evince passion, prejudice, or corruption, and that they do not exist; that the jurors were so moved by sympathy for the plaintiff, and by their common knowledge of the financial ability of the defendant, and their belief of large amounts expended by the defendant for medical expert evidence, as to have awarded a larger amount than they otherwise would have done, and to that extent partiality is found; that the verdict is not contrary to or against the weight of evidence. The order was then made ordering a new trial, unless $6,500 should be remitted from the verdict. Error is assigned upon this order. Counsel argue that $3,500 is excessive damage for a stiff arm; but we cannot say that it is so clearly excessive as to justify our interference upon that ground. We are also of the opinion that making a new trial dependent upon a refusal to remit a portion of the verdict in cases of this kind is a wellsettled practice in this state, where, as in this case, the amount of unliquidated damage is the only question involved. It has always been considered lawful for the trial judge in such a case to set aside a verdict as excessive; and it has been a common practice to grant a portion of the relief asked by requiring a remission of a portion of the verdict as a condition upon which the new trial will be denied. This has always been a matter of discretion, and, where it is not clearly erroneous, the action of the trial court should not be disturbed.

Several other questions are raised, but our investigation of them leads to the conviction that they do not furnish a ground for reversal of the case. We think it unnecessary to discuss them. The jury found a cause of ac

1. Complainants had a contract for the removal of timber on land, a portion of which the owner sold under a mistaken belief that the timber had all been removed. The complainants had commenced the removal, and had built camps and logging roads on the land. The purchaser knew that complainants were getting out timber in that region, and had visited the tract purchased, and seen a freshly-cut logging road connecting with the main road of complainants. Held sufficient notice of occupation as to put a reasonably prudent person on inquiry, and hence the purchase was not bona fide.

2. A contract for the cutting of timber granted permission to cut and remove it at any time previous to a stated date, "with privilege of another year if needed to remove timber"; purchaser to have no claim or ownership in any timber not removed previous to such date, and all timber remaining on the land at such date to be the property of seller, as if the permit had not be granted. Held, that the purchaser had two years within which to remove the timber

3. Under a contract for the purchase of timber, the purchaser, after the payment of the consideration, began the work. The land was subsequently sold under the mistaken belief that the timber had been removed. The purchase was not bona fide on the part of the vendee, who commenced an action in trespass, under How. Ann. St. c. 272, against the purchaser of the timber, for its removal. Held, that the latter was entitled to an injunction restraining the prosecution of the action of trespass.

Appeal from circuit court, Dickinson county, in chancery; John W. Stone, Judge.

Bill by the Oconto Company against Alfred Lundquist and another to restrain them from the prosecution of an action in trespass against complainant. There was a decree dismissing the complaint, and complainant appeals. Reversed.

Sawyer & Waite, for appellant. Cook & Pelham, for appellees.

HOOKER, J. The Peninsula Iron & Lumber Company, a Wisconsin corporation, owned a large tract of timber land in Michigan, including the 40-acre parcel in question. A co-partnership consisting of James B. and Robert F. Goodman, doing business under the name of James B. Goodman & Co., were the agents of the Peninsula Iron Company, though it does not appear that their authority was in

writing. On October 25, 1894, this firm executed and delivered to complainant a writing which was as follows:

"Limited Permit to Cut Timber. No. 665. Expires June 1, 1895. Land Office of James B. Goodman & Co., Chicago. Received of the Oconto Company three thousand six hundred (3,600) dollars, in consideration of which we hereby grant to them permission to cut and remove at any time previous to the first day of June, A. D. eighteen hundred and ninetyfive (1895), with privilege of another year if needed to remove timber, all or any part of the pine timber now upon the following described land, in the county of Dickinson and state of Michigan, to wit: [Here follow descriptions aggregating 640 acres.] Said pine timber to be cut and removed without destruction of other merchantable timber upon said land; and the said Oconto Company shall have no claim or ownership in any of said timber that shall not be removed from said land previous to said date, and no claim or reversion or return of any of the money consideration herein expressed, but all such timber remaining on said land at said date shall be property of the owners of said land as fully as if this permit had not issued. Witness our hand and seal October 25, 1894. Jas. B. Goodman & Co. [Seal.]

"We hereby fully consent and agree to the conditions expressed in the foregoing permit. [Seal.]"

At the same time they received $3,600, as the full purchase price of the timber mentioned therein. This writing was recorded, although not acknowledged.

The complainant subsequently made a contract with one Porterfield, whereby he agreed to cut the timber for the complainant within two years, and he proceeded to do the work. In September, 1895, he began the construction of a logging road upon the 40 acres in question, connected with his main logging road, which ran through other portions of the tract, which main road led to the railroad. On December 17, 1895, the Peninsula Iron & Lumber Company sold and conveyed to the defendants, by warranty deed, the 40 acres in dispute, for $120 in cash, who claim that they had no notice of the contract previously made with the complainant. Their deed was recorded after notice of complainant's claim. Porterfield subsequently removed the pine timber under his contract with the complainant, whereupon the defendants brought an action against the complainant to recover treble damages, under the statute (How. Ann. St. c. 272). The complainant tendered to the defendants the amount paid by them for the land, with interest, and asked them to deed the land to it. This being refused, complainant filed a bill praying a decree that the defendants' deed should be held to be subject to the contract, and that the action at law be restrained. The bill was dismissed, and the complainant has appealed.

The questions raised by the record are stat

ed by the appellant to be the following: "First. Did the complainant obtain a title to the timber mentioned in complainant's Exhibit C, which included the S. E. 4 of the S. W. 4 of section 23, township 42 north, of range 30 west, or such an interest, equitable or otherwise, that it could be enforced by a court of equity? Second. Does the contract of sale of timber between the Peninsula Iron & Lumber Company and the Oconto Company give the Oconto Company two years in which to remove the timber? Third. Was the building of the camps and roads on the timber land for the purpose of removing the timber purchased by the Oconto Company from the Peninsula Iron & Lumber Company, and the running of the branch road on to the forty in question, under all the circumstances, such a notice of possession as would put Lundquist and Fridstrom on inquiry? Fourth. Has a court of chancery the power to set aside a subsequent deed for value paid, when first recorded, if given through mistake of grantor, and if prior grantee tendered subsequent grantee the purchase price, with interest from the date of purchase?"

The testimony shows that the Goodmans acted exclusively as agents of the Peninsula Iron & Lumber Company in disposing of its timber and land. They made the sale to the defendants, though the conveyance was executed by the officers, and we think that the evidence shows that they were permitted by the Peninsula Iron & Lumber Company to act for it in all such matters. We do not discover any affirmative evidence that they were not authorized in writing to sell timber, but, whether they were or not, there is no doubt that the sale to the complainant was acquiesced in by the Peninsula Iron & Lumber Company, and that the land was subsequently sold and conveyed to the defendants for an inadequate price, upon the mistaken belief that the pine had been removed by the complainant under its contract. Immediately after its purchase of the timber, the complainant's agents entered upon the tract, and made extensive inroads upon the pine. Its logging roads were extended to and upon the lot in question before its purchase by the defendants. The defendant Lundquist was a section foreman on the railroad, and according to Porterfield's testimony, he was engaged in building a side track for Porterfield's landing at the time Porterfield was constructing the logging road, and knew that Porterfield was getting out timber in that region. He was in the habit of bringing Porterfield's mail daily. Both defendants testified that they did not know that Porterfield was working on the lot in question. Lundquist was a railroad boss, and Fridstrom was a miner. Both say they were used to the woods, and Fridstrom says that their business on that 40 was looking for pine. If that is so, the letter from Lundquist proposing to buy the tie timber and spruce was not ingenuous. The letter is as follows:

"Randville Station, Dec. 4, 1895. J. A. Van Cleve, Marinette, Wis.-Dear Sir: Would please let me know if stumpage can be bought on the E. 1⁄2 of the N. W. 4 of the N. E., all in Sec. 23, T. 42, R. 30, Dickinson Co., Mich. I would like to buy the tie timber and spruce on the above description land, if sold at a reasonable price. Respectfully, Alf. Lundquist.

"If you have any maps of the Upper Menominee, please let me know the price of same, so I can send and get one. A. L."

We also insert the remainder of the correspondence:

"Marinette, Wis., Dec. 5, 1895. Alf. Lundquist, Esq., Randville, Mich.-Dear Sir: Yours of December 4th received. The stumpage is not for sale, separate, on the tracts described in your letter. We do not, however, place any particular value in the land. Inclosed is a diagram of 42-30 for the prices of each forty for warranty deeds, except the mineral rights. If you desire to secure either or all of the tracts noted in your letter, please advise me at once. A map of the Upper Menominee country, mounted on cloth, will cost you fifty cents. If you will remit same, will mail you one. Yours, truly, J. A. Van Cleve."

"Division, Randville Station, Dec. 15, 1895. J. A. Van Cleve, Esq., Marinette, Wis.-Dear Sir: Yours of December 5th received, regarding the land in Sec. 23-42-30, S. E. of S. W. Price marked on the diagrams is $120.00, which you will find inclosed in this letter. you please, send us deed for same tract described. Yours, respectfully, Alfred Lundquist & Chas. Fridstrom, Randville, Mich."

If

The testimony shows that there was pine upon the land worth from $350 to $500 stumpage, and the testimony of Van Cleve indicates that there was considerable hemlock and other mixed timber upon it; and it is also shown that at the time the defendants visited the lot, looking for pine, a freshly-cut logging road had been made, which connected with the main road and camps of Porterfield. We are fully convinced that the defendants had knowledge of Porterfield's business in that region, and think there was sufficient notice of occupation of the lot to put a reasonably prudent man upon inquiry, and, therefore, that the purchase was not bona fide.

We are of the opinion that the timber contract should be construed to mean that the complainant should have two years within which to remove the timber from such portions of the land as could not be conveniently lumbered the first season, and that the showing of diligence was sufficient, under the provision, which was that permission was given to cut and remove timber at any time previous to the 1st day of June, 1895, "with privilege of another year if needed to remove timber." Had the Peninsula Iron & Lumber Company remained the owner of the premises, and commenced the action for trespass, we should have no hesitation in saying that the contract for the sale of the timber was made

by it, though, not being executed by one whose authority appeared to be in writing, it was inadequate, under the statute of frauds, to convey title to the standing trees. In view, however, of the full payment of consideration, and the work done by the complainant in reliance upon it, we should consider the contract valid in equity, as a parol contract partly, if not fully, performed; and we should confirm the complainant's title to the timber cut, and enjoin the prosecution of the trespass case. The defendants have succeeded to the title of the Peninsula Iron & Lumber Company as to the 40 acres described, but subject to whatever legal or equitable rights the complainant had in the premises. Had they prevented the complainant from entering and removing the timber after preparations had been made to do so, we should, upon a proper bill filed for the purpose, have specifically enforced this contract, by requiring them to permit the complainant to remove the timber. But they did not prevent the removal of the timber. They waited until it was removed under a claim of right, and then commenced an action, punitory in its nature, to recover three times as much as their actual damage amounted to, upon their own theory. Under these circumstances it is only necessary to ascertain whether the contract was one which should have been enforced, and, if so, to restrain the prosecution of the action of trespass. We think the conduct of the defendants has been unconscionable. They should have permitted the complainant to take the timber, or accepted the offer of reimbursement. The decree of the circuit court is reversed, and a decree will be entered in this court validating the contract for the sale of timber as a parol contract wholly performed, and adjudging defendants' deed to be subject thereto, and perpetually enjoining the defendants from further prosecuting their action of trespass, or in any manner attempting to recover for the timber cut and removed, or any damages therefor. The complainant will recover costs of both courts.

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

STATE ex rel. PHILLIPS v. ELLIOTT,

Judge. (Supreme Court of Minnesota. Jan. 27, 1899.) PERPETUATING TESTIMONY-ELECTION CONTEST.

Gen. St. 1894, § 153, in relation to elections. reads as follows: "When the canvass shall have been completed, and as soon as practicable thereafter, in the presence of all the judges, each box shall be locked and sealed by pasting firm paper across the lid and body of each box in such a manner that the box cannot be opened without breaking the seal; and each judge shall write his name upon said paper in such place that the box cannot be opened without tearing the name. Said sealings shall not be done, however, until it shall have been ascertained, by a canvass of the ballots in all the boxes, that all the ballots so to be sealed up in said box have