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plaintiff necessarily expended the sum of $238.14, in the months of January, February, and March, 1889, in repairing and replacing the same, and said plaintiff, before suit brought, duly requested the defendant to pay onehalf of the expense, under the contract aforesaid which defendant refused to do.

"That the draw-bridge aforesaid, as constructed, could not be operated without the said iron bearing wheels, and the same are necessary to the operation or turning of the draw-bridge."

And upon the foregoing facts the said court finds, as matter of law, the following, viz.:

"1. That the defendant, as such receiver, is liable, under the said contract, to pay to the said plaintiff onehalf of the money so expended by said plaintiff in making said repairs.

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2. That said plaintiff is entitled to a judgment against the said defendant as such receiver, by reason of the premises, for the sum of $119.07, with interest thereon from February 15, 1889, at six per cent. per annum, amounting to $121.17 damages, with cost of suit to be taxed."

With the facts found there is no contention, but the defendant's claim is upon the record that the facts found do not support the judgment, and that the defendant should have prevailed.

We are all satisfied that the conclusion of the circuit judge is correct, and that the judgment should stand. It seems quite plain, we think, what parts of the renewed structure should be repaired and maintained exclusively by each party, as well as what portions were to be maintained in common, each party paying one-half the expenses thereof. The contract says

"That the said railroad company shall keep in repair the road-bed or roadway across said draw used by it, and said bridge company shall keep in repair the highway or roadway across said draw-bridge used exclusively by it, and that all other portions of said draw-bridge, its piers and abutments, shall be maintained in common by both

of the parties hereto, each party paying one-half the expense thereof."

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The wheels supporting the draw, upon which it rested and turned, were manifestly included with the "other portions of the draw-bridge" mentioned in the contract, and which were to be maintained in common by the parties. The operating and managing of the draw," meaning thereby the opening and closing of the same, as well as the diligence to be used in protecting and preserving it from injury and doing injury, was imposed upon and undertaken by the plaintiff, and for which it was to receive certain compensation specified in the contract, but this clause was never intended to cover or include the necessary repairing or replacing of any parts of the bridge embraced in the clause, "other portions of the draw-bridge," found in the contract. These facts were found by the circuit judge, and we have no doubt correctly, and control the case.

The judgment at the circuit must be affirmed.

The other Justices concurred.

THE MICHIGAN CONDENSED MILK COMPANY (A CORPORATION) V. HARRIET WILCOX.

Dairy products-Sale-Adulteration-Damages-Jurisdiction-Evi

dence-Cross-examination-Vexatious appeal.

1. It is always proper to show the relation which a witness bears to the party litigant, and also what interest he has exhibited in the prosecution or defense of the suit, and what part he has taken, if any, as affecting his credibility before the jury.

2. Where an expert witness based his testimony that certain samples of milk furnished him contained a larger per cent. of water, and a smaller per cent. of fat, than they ought, if unadulterated, upon comparisons and tests made of other samples of milk, he may be examined on cross-examination as to the results of such comparisons and tests.

Error to Ingham. (Peck, J.) Argued October 25, 1889. Decided December 28, 1889.

Case.

Plaintiff brings error. Affirmed, and $30 as damage for vexatious appeal allowed. The facts are stated in the opinion.

Jay P. Lee (Edward Cahill, of counsel), for appellant. R. A. Montgomery, for defendant.

CHAMPLIN, J. The plaintiff, a corporation, commenced its action upon the case on July 6, 1888, to recover damages for fraud alleged to have been perpetrated upon the plaintiff by defendant in carrying out a milk contract entered into on March 29, 1888.

The contract provided, among other things, that the defendant should sell to the plaintiff, and deliver at its milk receiving room in the city of Lansing, all the milk produced at her dairy in the township of Delhi, in Ingham county, excepting the Saturday evening and Sunday morning's milk, and excepting also so much as might be necessary for the personal family use of defendant's family, the milk furnished to be paid for on the first Wednesday after the last Saturday of each month at the rate of $1 per 100 pounds from April 1 to December 1, and $1.20 per 100 pounds from December 1 to April 1. The defendant delivered milk to the plaintiff from April 2 to June 7, when, having been notified that the company would no longer receive the milk from her dairy, she ceased sending milk to its factory. It was claimed

by the plaintiff upon the trial that, soon after the defendant commenced delivering milk to the company, it was discovered by the company's milk inspector that the milk furnished by defendant was much below the average of normal milk in the fats contained, and that the milk had been, fraudulently, either skimmed or adulterated by the addition of water, or both.

The declaration contains two counts,-one under the statute (How. Stat. §2244), the other a common-law count. The case was tried at the November term, and upon the application of plaintiff a new trial obtained. It was again tried at the March term, and a verdict returned for the defendant. The fraud alleged in both counts of the declaration is that

"On April 2, A. D. 1888, and on divers other days and times between that day and the date of commencement of this suit, the defendant, knowingly, wrongfully, and fraudulently delivered to said plaintiff said milk, skimmed, and adulterated by the addition of water thereto," to the damage of the plaintiff $150.

The testimony is all returned and printed in the bill of exceptions. It appears that the milk delivered by the defendant was the product of two cows, and the total quantity delivered was 2,844 pounds, for which she received, according to the contract price, $28.44.

No special damages are alleged in the declaration; and no damages were proved upon the trial, except that plaintiff purchased the milk by weight, and, according to the testimony of Dr. Kedzie, that there was an excess of water in the milk of one-fifth or one-sixth. If this should be taken as the basis, the damages would not exceed $5.68. If the whole quantity delivered had been pure water, and the plaintiff paid for it by the pound, and that was the only damage suffered, neither under the statutory count nor the other count in the declaration would the circuit

court have jurisdiction. It is very strange that the plaintiff did not resort to justice's court in the first instance.

Error is assigned upon the rulings of the court in not excusing one juror for cause, and in excusing another

without sufficient cause.

We think the court exercised

a reasonable discretion in both instances, and we are not inclined to reverse the case upon these grounds.

Error is also alleged upon rulings of the court in permitting certain interrogatories to Dr. Kedzie. It appears that Dr. Kedzie had, at plaintiff's request, examined several samples of milk furnished by plaintiff, with a view of ascertaining by analysis whether the milk had been adulterated; and he was produced upon the trial as an expert, and gave testimony concerning the results of his investigations; and his testimony tended to show that the sample furnished him, which was claimed to be from the milk delivered by defendant, contained a larger per cent. of water, and a smaller per cent. of fat, than it ought, if it was unadulterated milk. The defendant's attorney was allowed a pretty large latitude in the crossexamination, and was permitted to examine the witness as to the results of other samples furnished him by plaintiff for analysis. We see no error in this. The witness' testimony was based entirely upon comparison in arriving at the percentage of fatty solids in pure milk; and he based his judgment of what should be considered as the normal condition of milk, as containing certain proportions of fat in a given quantity or weight, entirely upon his tests derived from a large number of experi

ments.

We do not think the errors assigned upon the examination of the witnesses who were connected with the plaintiff corporation are well taken. It is always proper to show the relation which the witness bears to the party

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