HOOPER v. WAYNE CIRCUIT JUDGE.

MANDAMUS-PHYSICAL EXAMINATION IN NEGLIGENCE CASE.

For the reason that an order of the circuit court in a personal injury case requiring plaintiff to submit to a physical examination before the trial, involves an exercise of discretion that may be reviewed on error, mandamus to set aside such order will be denied.

Mandamus by Archibald H. Hooper against Patrick J. M. Hally, one of the circuit judges of the county of Wayne, to compel respondent to vacate an order in a personal injury case requiring relator to submit to an examination. Submitted April 23, 1913. (Calendar No. 25,594.) Writ denied May 28, 1913.

Louis H. Wolfe (Maxwell W. Benjamin, of counsel), for relator.

Corliss, Leete & Joslyn (Thomas T. Leete, Jr., of counsel), for respondent.

KUHN, J. Relator seeks by mandamus to compel the respondent to set aside an order made, requiring him to submit to a medical examination before trial in a cause pending in the circuit court for the county of Wayne, in which he is plaintiff and the Detroit United Railway, a Michigan corporation, the Western Union Telegraph Company, a foreign corporation, and the Studebaker Company, a foreign corporation, are defendants, and in which he is seeking to recover damages for personal injuries claimed to have been caused through the negligence of the defendants.

Assuming that the court has the authority to make the order in question, which we will not determine at this time, it certainly is a matter which involves the discretion of the trial court, and, under the ruling of this court in Lyle v. Cass Circuit Judge, 157 Mich. 33 (121 N. W. 306), such discretion will not be reviewed by mandamus, as the question can be raised after judgment by appeal or writ of error.

Writ denied.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred.

4. DAMAGES-DECEIT-VALUE.

In an action for misrepresentations as to the location of a lot purchased of defendant, plaintiff is entitled to recover the difference between the value of what she would have received if the representations had been true and the value of what she actually received.

Error to Genesee; Wisner, J. Submitted April 22, 1913. (Docket No. 112.) Decided May 28, 1913.

Case by Eliza A. Smith against the Michigan Realty and Construction Company for fraud and deceit. Judgment for plaintiff. Defendant brings error. Affirmed.

William V. Smith, for appellant.

Mark W. Stevens, for appellee.

KUHN, J. The defendant corporation in the year 1910 was engaged in the real estate business in the city of Flint, buying and selling land and acting as agent in buying and selling land for others, and also in the construction of buildings. Block 16 of the Oak Park subdivision of the city of Flint is bounded on the north by Baker street and on the east by Industrial avenue, which runs north and south between block 16 and the location of the automobile plant known as the Buick, which extends along the east side of Industrial avenue opposite block 16. Industrial avenue is a paved street 60 feet wide; the paving being 40 feet wide along the middle. The corner lot of said block 16, which lies along Industrial avenue and fronts on Baker street, is lot 16, which has 50 feet frontage on Baker and 135 feet deep on Industrial avenue. Lot 15 is of the same size and is next west of lot 16.

On January 10, 1910, the defendant owned lot 15, and lot 16 was owned by the Buick Motor Company. The plaintiff at this time learned through a Mr. Feazel that the defendant had a certain lot for sale and Feazel, at the request of the plaintiff, visited the offices of the defendant to obtain information concerning the said lot. It is the claim of the plaintiff that Feazel was informed by George R. Gardiner, in the employ of the defendant company, that defendant had a lot for sale which was not exactly a corner lot, but that there were 15 feet between it and Industrial avenue which were to be reserved for ornamental purposes and for flowers and shrubberies, and it is claimed that Gardiner at that time drew a sketch upon a card showing the lot to be within 15 feet of Industrial avenue, which card was taken by Feazel to the plaintiff and submitted to her; that, several days thereafter, plaintiff visited the locality and there saw a sign on a tree, which read as follows: "For sale by the Michigan Realty and Construction Company." It is undisputed that the tree in question was on lot 16. It is the further claim of the plaintiff that she later visited the offices of defendant and there had a conversation with Gardiner concerning the lot, and that he at that time stated that the lot was within 15 feet of Industrial avenue and commenced at a point opposite a hydrant on Baker street and ran west 50 feet. This hydrant was located by the city engineer to be 17 feet west of the curb on Industrial avenue.

Plaintiff claims that, relying upon these representations, and believing that she was buying the property which subsequently was shown to be lot 16, she, on the 10th day of January, entered into an agreement by which she proposed to purchase from defendant lot 15 for the sum of $750, of which $50 was paid in cash. On the 27th day of January, 1910, the defendant executed a deed of said lot 15 to Peter Tierney and Harry J. Tierney and received the balance of the purchase price of $700 in cash. This deed was made to Peter Tierney and Harry J. Tierney, at the request of the plaintiff, to secure the payment of $600 which had been negotiated as a loan in order to enable her to pay the purchase price of the lot, and she received from Tierney Bros. a contract for the purchase of said lot, which transaction was in the nature of a mortgage to secure Tierney Bros. for the money advanced by them. Plaintiff also claimed that when she obtained the deed to the property she called upon Gardiner and told him that she would like to have the sign removed from her lot and from the big tree, and that it was removed.

Some time thereafter the plaintiff attempted to sell the lot she supposed she had purchased, and, upon an investigation being made, the prospective purchaser informed her that she did not own the lot she was attempting to sell. Upon learning of this fact, plaintiff called upon Mr. Symons, who was the general manager of the defendant company, and who at that time was in Saginaw, and upon obtaining no satisfaction from him she brought suit to recover damages because of the claimed representations made by Gardiner and recovered a verdict of $950, upon which judgment was had. This defendant seeks to review by writ of error.

Defendant's counsel has preferred 19 assignments of error, but has not discussed all of them, and such as are not so treated we will consider as abandoned. Supreme Court Rule 40; Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64); Walker v. Mack, 129 Mich. 527 (89 N. W. 338); Board of Education v. Van Der Veen, 169 Mich. 470 (135 N. W. 241).

The first question raised which we will consider is the claim of appellant that Gardiner, the agent, had no authority to sell her the lot she claims she purchased. It is claimed that he simply held a subordinate position and had no written authority to sell anything. On cross-examination Gardiner testified as follows: