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the defendants to testify to statements made by plaintiffs' agent as to how many cans it would take to operate the creamery at its full capacity. Defendants claim that it was represented by plaintiffs' agent that 600 cans would operate the creamery, but that it took 200 more; that the cans were a part of the outfit of the creamery, and they were compelled to purchase so many more to operate with; that the statement had no reference to the amount of cream they could gather in the territory, but was the statement of a fact which plaintiffs' agent ought to have known was false; that they purchased the creamery outfit in reliance upon this statement, and, by reason of its falsity, were compelled to expend a large sum of money in the purchase of additional cans. This was a proper element of damages.

In order to prove the value of the territory purchased and the loss sustained by reason of the failure of title, defendants were permitted to show the rental value of the territory. No question of profits entered into it, and this was a fair way of showing its value and the damages sustained.

One further clause in the charge is complained of. The court charged:

"If you shall determine that these representations were made, as claimed by the defendants, in relation to the title to the territory, then it is a material question for you to determine whether such representations were deemed by the defendants to be material at that time, and operated . in the minds of the defendants as a material inducement for them to enter into the contract."

It is, in effect, conceded by defendants' counsel that this statement, standing alone, would not be a statement of the law applicable to the case; but counsel claim that it must be read in connection with other portions of the charge. We think it was not cured by other portions of the charge referred to. The court did charge that the

burden of proof was upon the defendants to show the fact of the value of the plant and territory, but the jury were not instructed to find whether the representations were material, and operated upon the minds of the defendants. Instead, they were asked to find whether those representations were deemed by defendants to be material. This was for the jury to judge of, as any other fact in the case, and not for the defendants to say whether they deemed them to be material. Hall v. Johnson, 41 Mich. 286..

For this error the judgment must be reversed, and a new trial ordered.

The other Justices concurred.

GEORGE L. BEECHER ET AL., ADMINISTRATORS, ETC., V. HENRY M. DUFFIELD ET AL.

Landlord and tenant-Ouster-Estoppel-Use and occupation— Pleading.

1. Where tenants continue in the occupation of the leased premises, without offering to surrender them, after egress has been cut off on one side by the erection of a fence by the lessor across an adjoining street, they are estopped from claiming that the erection of the fence constituted an ouster.

2. An action for use and occupation can be maintained on a lease under seal; citing Dalton v. Laudahn, 30 Mich. 349; Conkling v. Tuttle, 52 Id. 630.

Error to Wayne. (Hosmer, J.) Argued October 11, 1893. Decided November 10, 1893.

Assumpsit. Defendants bring error. Affirmed. The facts are stated in the opinion.

James H. Pound, for appellants.

Henry M. Cheever, for plaintiffs.

MONTGOMERY, J. This is an action for use and occupa

tion.

Church

The defendants held possession under a written lease made by plaintiffs' intestate, Luther Beecher, in 1885, for the term of five years from January 1, 1886. The premises are located in Detroit, having a frontage on Michigan avenue, and extending across the block to Church street. On one side is an alley opening into Tenth street. street is referred to in the description as one boundary of the lands. In the fall of 1888, Mr. Beecher, for the purpose of asserting title against the city, built a fence across Church street, which shut off egress from the property on this side. There was a brick building on the property fronting on Michigan avenue. The rear portion was fenced, with gates opening into Church street for the use of teams. The property was originally rented for a zoological garden, and was used for that purpose until some time in 1886, when, the venture proving a failure, its use for that purpose was suspended. The defendants, however, continued to keep the premises, by their tenants, up to the termination of the lease. No offer to surrender was made. It is now claimed that the fencing of Church street constituted an ouster. But we think it very clear that, even if the defendants had been entitled to treat this as an ouster, in continuing in the occupation of the premises they have estopped themselves from so doing. If the rental value of the premises was decreased by the act of Mr. Beecher, it may be that defendants would be entitled to recoup the damages which they have suffered by reason of his interference with their rights; but there was no basis furnished by the testimony for such damages. No evidence was offered tending to show what the rental value

of the premises would be in the absence of such interference on Mr. Beecher's part, nor to what extent the encroachment impaired the rental value.

It is contended that the action for use and occupation could not be maintained on a written lease under seal.' But the rule is settled otherwise in this State. See Dalton v. Laudahn, 30 Mich. 349; Conkling v. Tuttle, 52 Id. 630. The circuit judge directed a verdict for the plaintiffs. In this we think he was right.

The judgment will be affirmed, with costs.

The other Justices concurred.

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MELISSA J. MINOCK V. THE DETROIT, GRAND HAVEN &
MILWAUKEE RAILWAY COMPANY.

Railroad companies-Injury to passenger-Alighting before reaching station.

1. It cannot be said, as matter of law, that a railroad company is under obligation to notify passengers not to alight at an intervening railway crossing because it has announced the succeeding station as such.

2. A railroad company has a right to expect that passengers will sit in the cars until stations are called, as is the common custom on railroads, or, if they do not, that they will inform themselves of their whereabouts.

3. The usages of railroad companies in the running of trains, and taking and discharging passengers, are matters of common knowledge, which fact they may properly take into consideration, and they are under no obligation to guard against an exodus of passengers at a railway crossing at which they do 'The declaration contained the common counts and a count for use and occupation, amplified by a bill of particulars made up of the quarterly installments of rent due on the lease.

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not discharge passengers, merely because they have given the name of the next station after the last preceding stop.

Error to Wayne. (Hosmer, J.) Argued October 11, 1893. Decided November 10, 1893.

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

James H. Pound, for appellant.

E. W. Meddaugh and L. C. Stanley, for defendant.

HOOKER, C. J. The plaintiff, a married woman, residing at Detroit, took defendant's evening train for Holly. A short distance east of Holly, defendant's track is crossed by the Flint & Pere Marquette railroad. It appears from the proof that, immediately after leaving each station, the brakeman or conductor announced the next station at which the train would stop. Holly was so announced. The plaintiff testified:

"After we left Davisburg, he said the next station would be Holly.

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"Q. Did he say the next station,' or 'the next stop?' "A. "The next station;' he did not say 'stop' at all." The train stopped before crossing the Flint & Pere Marquette track, and plaintiff got off, supposing that she was at Holly. In so doing she was injured by the starting of the train just as she stepped off. The negligence complained of is that, after having announced Holly as the next station, defendant did not apprise plaintiff that the stop was not Holly. No employé of the defendant knew that plaintiff had left her seat.

The practice of announcing the next station in the manner mentioned is to be commended. It informs passengers in advance, and gives an opportunity for them to get ready, at their leisure, to leave the car. There is

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