It is contended by defendant that time was of the essence of the contract, and that, by the failure of the complainant's husband to pay at the time and in the manner provided, the contract became forfeited; that the notice to quit was a sufficient declaration of forfeiture, and decree should have been entered for defendant.

We are satisfied, however, that the court below reached the right conclusion. The parties themselves, during all these years, have not treated time as of the essence of the contract. According to the testimony of Mr. Robinson, at one time he had made arrangements to get the money elsewhere, and pay the whole amount, and take the deed, but defendant asked him not to pay the whole amount, and, in order to induce him not to do so, reduced the interest to 6 per cent. At this time $200 was unpaid of the amount due July 1, 1886. Defendant's claim is that she consented to reduce the rate of interest voluntarily, and not upon any arrangement that a difference should be made as to the time of making payments; but complainant's proofs show that Mr. Robinson had arranged for the money in this way for this very purpose, and from them we are led to the conclusion that the arrangement was as Mr. Robinson states it. Defendant thereafter took payments upon the interest from time to time up to within four months of the time of giving notice to quit. We see no hardship in compelling, the defendant to receive her money and give the deed. All along she seems to have treated the matter as an investment, upon which she was satisfied to receive her interest. The court below very properly directed performance of the contract upon payment of the amount due.

The decree of the court below will be modified to the extent of giving the complainant 30 days from this date to make payment of the money, and, as thus modified, will be affirmed.

The other Justices concurred.

MARY GOUDREAU V. THE CITY OF ST. IGNACE. ISAAC GOUDREAU V. SAME. WILLIAM BROOKS V. SAME.

GEORGE ORTH V. SAME.

Taxes.

These four cases are ruled by Chamberlain v. City of St. Ignace, 92 Mich. 332.

Error to Mackinac. (Pailthorp, J.) Submitted on briefs October 6, 1893. Decided November 10, 1893.

Assumpsit. Defendant brings error. Reversed, and judgment entered for defendant.

the opinion, and in 92 Mich. 332.

James McNamara, for appellant.

James J. Brown, for plaintiffs.

The facts are stated in

LONG, J. These causes were heard in the circuit court for the county of Mackinac on August 5, 1891, before the court without a jury, and judgments rendered therein in favor of the plaintiffs. Stipulations had been signed by the attorneys of the respective parties, by which it was agreed that the facts were substantially the same as in the case of Eli B. Chamberlain v. City of St. Ignace (92 Mich. 332), and that the findings of the court in the cases should be of the same import and effect, except the items of taxes, which were set out in the stipulations. The same facts were found as in the Chamberlain case, and the same conclusions of law reached, and judgment entered for the plaintiff in each case. The present cases were decided before the Chamberlain case was heard in this Court, and the causes appealed before that case was decided. These cases

must be ruled by that, and the judgment of the court below in each case reversed, and judgment entered here in favor of defendant, with costs of both courts.

The other Justices concurred.

HENRY M. RICE, ADMINISTRATOR, ETC., V. THE THIRD
NATIONAL BANK, GARNISHEE OF CHARLES
W. GAUTHIER.

Banks and banking—Garnishment of account—Liability.

Where the nominal credit of a depositor at the time his bank is garnished as his debtor is more than offset by non-accepted drafts, afterwards returned, which had been drawn by him upon his customers, and credited in his account, under an arrangement, made when the account was opened, by which the bank was authorized to charge back such of the drafts as were not accepted, and upon his agreement that a sum in excess of said nominal credit should at all times be kept on deposit to cover the liability on such non-accepted drafts, the bank cannot be charged as garnishee.

Error to Wayne. (Hosmer, J.) Argued October 10, 1893. Decided November 10, 1893.

Garnishment proceedings. Defendant brings error. Reversed. The facts are stated in the opinion.

Griffin, Warner & Hunt, for appellant.

Charles W. Casgrain and Sands F. Moore, for plaintiff..

MONTGOMERY, J. The plaintiff's intestate brought suit against one Charles W. Gauthier, and garnished the defendant bank. The bank, by its officers, made disclosure that

at the date of service it had $979.23 on deposit in favor of the principal defendant, and also that the principal defendant was indebted to the bank for discounts largely in excess of the sum named, and that, there fore, the bank was not indebted to the principal defendant. An issue was framed, and the case tried before a jury. The cashier of the bank, Mr. Marvin, was called as a witness, and gave testimony tending to show that on the day of the service of the writ of garnishment there appeared a credit of $979.23 to Gauthier on the books of the bank, but that at the time of opening the account it was agreed that Mr. Gauthier should be privileged to deposit drafts drawn by him on his customers, and receive credit for them on account, but that, if any of these drafts were not accepted, the bank should be entitled to charge back the amount of such dishonored paper to his account. The testimony further tended to show that it was agreed between Gauthier and the bank that the sum of $1,000 should at all times be kept on deposit to cover the liability on the returned drafts; that at the time of the service of the writ there was in the hands of the bank, or its correspondents, drafts amounting to $3,000 and upwards, and that subsequently, and before trial, drafts amounting to more than the apparent credit to Gauthier came back unpaid. The circuit judge, on this testimony, directed a verdict for the plaintiff.

In this we think there was error. It was competent for the parties to make the agreement testified to, and, if it be the fact that Mr. Gauthier was under obligations to maintain a balance of $1,000 to cover liability by returned drafts, he could not himself have maintained an action against the bank on the day of its garnishment if the bank had refused to honor his check. If he could not have recovered against the bank, the garnishee plaintiff could not do so. Karp v. Bank, 76 Mich. 679. The process was

effectual to stop payment, and make the bank liable to plaintiff, instead of Gauthier; but, as the testimony tended to show that the amount on hand was subsequently more than offset by returned drafts charged against the account, there was, if the testimony shows the true state of the case, no liability.

The judgment will be reversed, with costs, and a new trial ordered.

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

RACHEL E. MALLORY V. THE METROPOLITAN LIFE
INSURANCE COMPANY.

Life insurance-Lapse of policy-Authority of agent-Waiver.

The acceptance of a life-insurance policy with knowledge that the agents of the company are prohibited from waiving forfeitures, and from receiving premiums on lapsed policies, except in connection with an application for revival, which should not become operative until officially accepted by the company at its home office, estops the beneficiary from setting up or relying upon any action on the part of an agent in opposition to such prohibitions.

Error to Kent. (Grove, J.) Argued October 10, 1893. Decided November 10, 1893.

Assumpsit. Plaintiff brings error. Affirmed. The facts are stated in the opinion.

Maher & Salsbury, for appellant.

Fletcher & Wanty, for defendant.