KROLL v. DIAMOND MATCH CO.

PLEADING-BREACH OF LAND CONTRACT-STATUTE OF FRAUDS.
A declaration alleging that defendant proposed in writing to
pay plaintiff a specified sum for a deed to certain lands,
that plaintiff accepted the offer, and afterwards tendered
the deed, but that defendant refused payment, is not defec-
tive in failing to aver that plaintiff's acceptance was in
writing.

Error to Houghton; Hubbell, J. Submitted June 11, 1895. Decided July 2, 1895.

Assumpsit by William Kroll against the Diamond Match Company for the breach of an agreement for the purchase of land. From a judgment sustaining a demurrer to the declaration, plaintiff brings error. Reversed.

W. S. Hill (T. W. Whitney, of counsel), for appellant.
A. R. Gray, for appellee.

GRANT, J. The declaration in this case sets forth that the defendant offered and proposed in writing to pay plaintiff $2,000 upon receipt of a quitclaim deed of certain lands; that he then and there accepted said proposal, and afterwards, on a date mentioned, while said proposal was unrevoked and in full force, he tendered to defendant a proper and sufficient quitclaim deed, but that it refused to pay. The defendant interposed a general demurrer. The only question before us is, was it necessary to allege an acceptance in writing? That question is settled in this State against the defendant. Dayton v. Williams, 2 Doug. 31; Harris Photographic Supply Co. v. Fisher, 81 Mich. 136. Were it conceded that the acceptance rested in parol, and that the tender of the deed was made pursuant to said contract, we could dispose of the

case upon its merits. Thompson v. Marley, 102 Mich. 476. But we do not find this concession in plaintiff's brief. It must therefore be reserved for determination upon the evidence.

The case must be reversed, and remanded to the court below, where the defendant will be given the usual time to plead.

MCGRATH, C. J., MONTGOMERY and HOOKER, JJ., concurred. LONG, J., did not sit.

STERLING v. CALLAHAN,

INTOXICATING LIQUORS-SALE TO MINOR-CIVIL-DAMAGE LAWEVIDENCE HARMLESS ERROR.

In an action under 3 How. Stat. § 2283e3, for the sale of liquor to plaintiff's minor son, any error committed in permitting a witness to testify that he had drunk with the minor at another saloon than the defendant's is cured by an instruction that it is immaterial whether any one else than the defendant gave liquor to the minor, and that the damages to which plaintiff is entitled cannot be lessened by reason of that fact.

Error to Wayne; Frazer, J. Decided July 2, 1895.

Submitted June 12, 1895.

Case by Henry C. Sterling against Robert C. Callahan under the civil-damage act. (See 94 Mich. 536.) From a judgment for defendant, plaintiff brings error. Affirmed.

B. T. Prentis, for appellant.

Ralph Phelps, Jr. (William B. Jackson, of counsel), for appellee.

LONG, J. This action was brought to recover damages for the sale of intoxicating liquors to plaintiff's minor son. The case was tried before a jury, who found a verdict in favor of defendant.

One of plaintiff's witnesses was permitted to testify on cross-examination that he had drunk with the minor at a saloon other than the defendant's. It was claimed that this testimony was offered for the purpose of testing the recollection of the witness. Plaintiff's contention is that the testimony was incompetent, under Theisen v. Johns, 72 Mich. 292, and Steele v. Thompson, 42 Mich. 594. If it be conceded that the court was in error in permitting this testimony, we think the error was cured by the charge of the court in giving one of plaintiff's requests, which was, substantially, that it was immaterial whether any one else than defendant or his barkeeper gave beer or whisky to plaintiff's minor son; that the damages could not be lessened merely because of any injury caused by the giving or selling of such liquor to plaintiff's son by others than the defendant or his barkeeper. The court also stated to the jury that, if defendant or his barkeeper gave the son beer or whisky, the plaintiff was entitled to recover at least $50, under the statute, and also such other damages as the jury might find the plaintiff entitled to.

Some other questions are raised. We have examined them, and do not deem it necessary to discuss them. The case was very fairly tried, and was submitted to the jury under a charge which was eminently fair to the plaintiff. The judgment must be affirmed.

The other Justices concurred.

106 MICH.-9.

MARTIN v. ELLIOTT.

SALE OF HORSE-BREACH OF WARRANTY-RIGHT OF DEFENDANT TO EXAMINE HORSE.

Upon the trial of an action for breach of warranty on the sale of a horse, an order that defendant may send a veterinary surgeon upon plaintiff's premises to examine the horse, on condition that he be accompanied by plaintiff, or some one selected by him, and requiring plaintiff to permit access to his premises for such purpose, is beyond the power of the court, especially where the testimony of the surgeon would be cumulative merely.

Error to Shiawassee; Wisner, J. Submitted June 12, 1895. Decided July 2, 1895.

Case by Joseph Martin against Marcus D. Elliott for fraud and breach of warranty. From a judgment for defendant, plaintiff brings error. Reversed.

Albert L. Chandler, for appellant.

John T. McCurdy, for appellee.

LONG, J. This action is brought to recover damages for breach of warranty in the sale of a mare. On the trial the plaintiff contended that in the purchase the defendant warranted the mare sound and all right, whereas in fact she was not sound, but sick and disordered, and had been so overdriven and heated that she broke out in blotches and continued so up to the time of the trial. The plaintiff testified that these blotches were as large as a kernel of wheat, and festered; that he used a wash which drove them away, but that they would come back again. One of plaintiff's witnesses testified that the horse had these blotches at the time plaintiff purchased her, but that the defendant said she had scratches, and her hair looked rough from want of care.

This witness testified that she was now no better thau when purchased, as he had seen her a week before, and that she did not have scratches, but something else which would injure her value. Plaintiff paid $200 for her, and gave testimony that she was in fact of little or no value. At the time of the trial the mare was in plaintiff's barn. The defendant claimed that, in view of this testimony, he had the right to have an examination made of the mare by a veterinary surgeon. The court then made the following order:

"On motion of John T. McCurdy, attorney for said defendant, and it also appearing to the court that the plaintiff in this case claims the horse about which this action is brought is now in practically the same condi tion that she was at the time she was purchased from defendant, and that since said purchase the horse had been in possession of plaintiff in this case; therefore, after hearing Odell Chapman and A. L. Chandler, attorneys for said plaintiff, in opposition thereto, it is ordered that the defendant have the privilege of sending a veterinary surgeon to examine the mare in question, provided he shall be accompanied by the plaintiff or some person whom plaintiff may select. The court further orders that the plaintiff give such veterinary surgeon access to the premises and stable where said mare is located to make such examination. This order is made upon the authority of the case of Graves v. City of Battle Creek, 95 Mich. 266. Such examination to take place at any time between the hours of 6 o'clock and 10 o'clock p. m. of this day."

The defendant sent Mr. Van Sickle, a veterinary surgeon, to make the examination. Plaintiff objected to the making of the order and to the veterinary surgeon's going to make the examination. Mr. Van Sickle, after the examination, was called as a witness, and testified that the mare was in perfect health, but had a slight irritation under the fetlock, and also a few pimples, but no pustules. The jury returned a verdict in favor of the defendant. The plaintiff contends that the court was in error in making this order.