H. J. Patterson for appellee.

SHERWOOD, J. This action was brought in justice's court for false imprisonment, appealed to the circuit court, and upon the trial in both courts the plaintiff had judgment. The defendant brings error.

It is claimed by the plaintiff that the defendant wrongfully caused and directed his arrest in two cases—one a civil and the other a criminal suit; the defendant being plaintiff in the one and complaining witness in the other; but it is not claimed that he acted maliciously in either. The record contains all the evidence bearing upon the questions raised, and from which it appears, by that offered by the plaintiff, that the arrests were made by a constable upon a warrant issued by a justice of the peace and delivered to him by the defendant, but we cannot say that the defendant asked or directed him to make the arrests, or was present when the arrests were made. Neither the complaints nor warrants were put in evidence on the trial.

It does not appear that the officer arrested the plaintiff by reason of anything the defendant said to him, but by virtue of his warrant which he subsequently returned to the court. In the absence of testimony upon the subject we cannot, under the circumstances, presume the court acted illegally in taking the complaints or in issuing the warrants, the evidence of which was given by the plaintiff; but on the contrary, the rule that "regular official action" will be presumed applies to a magistrate's court, and must be observed in this

case.

No question having been raised as to the subject-matter being within the jurisdiction of the justice, and the defendant having acted in good faith, we think he was entitled to have his several requests given to the jury as asked,' and the

1 The defendant's counsel requested the court to charge the jury as fol lows: First. That if you find that the defendant gave the officer a warrant, and the plaintiff was arrested on that warrant, that the presumption in such a case would be in favor of that warrant being a legal warrant. Second. If the jury find from the plaintiff's own proof that defendant gave an officer a warrant, and the arrest was under such warrant, the presumption is in favor of the warrant being a legal one. Third. And if you find that plaintiff was legally arrested, no damages can be recovered by the plaintiff.

failure of the court to comply was error.

The cases cited

by defendant's counsel fully sustain these views.

The judgment must be reversed and new trial granted.
The other Justices concurred.

55 453

86 608

55 453

99 273

WALTER A. WOOD MOWING & REAPING MACHINE Co. v.

FRED GAERTNER.

Written contract-Proof of additional consideration.

It is proper to show, in defense to an action for the price of a machine 138 579
d138 580
which has been ordered under the terms of a written instrument by
which defendant agreed to pay a specified consideration and which
provided for a test, that it was understood when the order was given,
and was part of the consideration, that plaintiff should furnish a
man to set up the machine, and that it was his usage to do so.

Error to Monroe. (Joslyn, J.) Oct. 23.-Jan. 7.
ASSUMPSIT. Defendant brings error.

Reversed.

I. R. Grosvenor for appellant. Contracts are to be interpreted in the light of circumstances, and even when they are written, evidence of parol understandings that do not conflict with, but explain them, is admissible: Richards v. Fuller 37 Mich. 163; Ferris v. Wilcox 51 Mich. 108; 2 Pars. Cont. 553; 1 Greenl. Ev. 120, 316, 324; Atwood v. Gillett 2 Doug. (Mich.) 206; Picard v. McCormick 11 Mich. 68; Facey v. Otis id. 213; Rowe v. Wright 12 Mich. 289; Bowker v. Johnson 17 Mich. 42; Lingham v. Eggleston 27 Mich. 324; Sirrine v. Briggs 31 Mich. 443; Trevidick v. Mumford id. 467; Doty v. Martin 32 Mich. 462; Hopkins v. Sanford 41 Mich. 243; Gillett v. Bowman 43 Mich. 477, Wetmore v. Pattison 45 Mich. 439; Wood Machine Co. v. Smith 50 Mich. 565; Spaulding v. Coon id. 623; Bush v. Sprague 51 Mich. 52.

Willits & Critchett for appellee. Particulars outside of a written contract and agreed to verbally cannot be shown: Stange v. Wilson 17 Mich. 342; and where parol testimony

is admissible there is no written agreement that purports to show the guarantees of both parties: Quimby v. Vanderbilt

17 N. Y. 306.

SHERWOOD, J. This action was brought to recover the contract price of a twine self-binding harvester, under an order of which the following is a copy:

"WALTER A. WOOD MOWING & REAPING MACHINE Co.,

80 Taylor Street, Chicago, Ill.

I hereby order one Walter A. Wood Twine Self-binding Harvester, 5 feet 6 inches cut, to be delivered at Petersburgh, Mich., care of O. H. Russell, on or before July 15, 1883, for which I agree to pay you the sum of $78 in Junior Reaper, and in manner as follows: The balance, $147 cash, with freight from Petersburgh, on or before September 25, '83, with interest at 7 per cent. per annum from the date of delivery of machine or commencement of harvest. If paid on or before maturity no interest to be paid.

WARRANTY. This machine is warranted to be well made. of good materials, and with proper management capable of cutting and binding in a workmanlike manner, doing the binding at least as well as is usually done by hand. The purchaser shall be allowed one day's use to give the machine a fair trial, and if it should not work well immediate written notice must be given to the agent from whom it was purchased, and reasonable time allowed to get to it and remedy the defects, if any (the purchaser rendering necessary and friendly assistance), when, if it cannot be made to do good work, it shall be returned to the place where received free of charge, and the payments of money or notes will be refunded. Failure to give notice as above shall be deemed conclusive evidence that the machine fills the warranty, whether it is kept in use or not.

[Signed]

FRED. GAERTNER, Purchaser."

The declaration was special upon this instrument, with the common counts added. Plea, general issue. The case was tried before the court without a jury, and under special findings of fact and law judgment was rendered against the defendant for the sum mentioned in the order, and interest. The case comes before us on error, the record containing apparently all the testimony and the findings of the circuit

judge. It is unnecessary for us to consider the findings further than to ascertain what judgment was rendered. The court held upon the trial in admitting the testimony that no agreement made or understanding had between the parties at the time the order was given, could be shown, upon the ground that it would be varying the terms of the written. contract. This ruling might very easily prevent showing the entire failure of the consideration upon which the order was given for the machine, and thereby defeat the very contract which was made for its purchase and which constitutes. the ground of defense in the case. The law will not tolerate

such injustice.

In this case the defendant proposed to prove that it was a part of the consideration for which the order was given, that this plaintiff should, at the time of the delivery of the property ordered by defendant, furnish a man to set up the machine and make it work in the manner prescribed in the order. This the court refused to permit, and the defendant excepted. This was error. Defendant also proposed to show that it was the custom of the company, on all sales of such machines by plaintiff, to furnish such a man and do such work. This was also refused by the court. We think this was error. If such was the fact it constituted a part of the contract, and a correct understanding of the same could hardly be obtained without that condition in some way appearing. The above facts were proposed to be proved in connection with the fact that the company failed to perform its agreement in that regard. We think the case falls within the rule laid down by this Court in Phelps v. Whitaker 37 Mich. 72, and in Weiden v. Woodruff 38 Mich. 130.

The judgment must be reversed and a new trial granted.

CAMPBELL and CHAMPLIN, JJ. concurred.
COOLEY, C. J. concurred in the result.

456 140 3394

TOLEDO & ANN ARBOR R. R. Co. v. MILES B. JOHNSON.

Railroad aid notes-Equitable assignment-Construction and consideration—
Reasonable time-Validity of incorporation-Abatement of
suit by transfer of contract-Instructions upon facts.

1. An aid note that had been drawn to the order of a railroad company
which fell into bankruptcy was transferred by the assignee's deed and
a subsequent conveyance, and sued on by the final holder. Held,
in an action on the note, that as the deeds had been lost certified
copies thereof were admissible as tending to show that plaintiff, hav-
ing suceeded to the franchises of the promissee company, was a pro.
per person to perform on the promissee's part the contract embodied
in the note; they would not, however, be admissible evidence of the
transfer of such contract.

2. Successive assignments and deliveries of an aid note drawn to the order of a railroad company were held sufficient to create an equitable assignment of the contract embodied in it, and to authorize the final holder to sue on it in his own name, as equitable assignee.

3. The legality of the incorporation of a railroad company can only be attacked by the State, and is not open to inquiry as between the parties in a collateral action by it upon a transferable aid contract of which it is the equitable assignee.

4. An agreement to pay a certain sum to the order of a specified railroad
company in six months after the first cars run over the road from"
one specified point to another inside the contemplated termini, does
not postpone the period of payment until after the completion of
the whole road.

5. Where the consideration of a transferable aid note given to a railroad
company is the benefit to be derived from the construction of its road,
it is immaterial whether the road is built by one company or another
so long as it is built over substantially the line originally laid out.
6. In an action on an agreement to pay a certain sum of money to a rail.
road company in a specified time after the cars begin to run, evidence
to show what would be a reasonable time for completing the road is
inadmissible.

7. The transfer of a negotiable agreement after bringing suit at law for
the breach thereof does not abate the suit or affect the issue.

8. In an action on a note there was no error in charging that it was the plaintiff's property at the beginning of the suit, if the fact was fully proved and there was no contrary evidence.