the property was mortgaged by the association to E. P. Bacon for a loan of $1,229.43, and, the note given not being paid, he started to foreclose the mortgage, when the board ordered a sale of the furniture to the plaintiff, who agreed to and did pay the note in consideration thereof, taking a bill of sale therefor. The bill of sale was offered and admitted over defendant's objection that requisite proof of execution was not made; the original bill not being attached to the deposition. There was testimony by Rathbun proving the execution and the seal, and we think this was sufficient to authorize its admission.

It is claimed that there should have been record proof that the bill of sale was authorized. Such proof was offered and excluded. The case stands, therefore, as though there were no such record. The bill of sale was sufficiently proved, and also the consideration paid and the delivery of the property by those having the management of the association's affairs. This was sufficient. We are

of the opinion that there was a prima facie case of ownership, and that the defendant offered no proof to the contrary. Several witnesses were allowed to testify that they never heard that plaintiff owned the property, or of any bill of sale of the property. This was negative testimony, and not admissible. The fact that it was used in the hotel was not inconsistent with plaintiff's ownership or her claim. The court should have directed a verdict for the plaintiff.

The judgment is reversed, and a new trial ordered.

MCALVAY, BLAIR, MONTGOMERY, and OSTRANDER, JJ., concurred.

141 MICH.-26.

PORTAGE GRANGE, NO. 16, PATRONS OF HUSBANDRY v. PORTAGE LODGE, NO. 340, FREE AND ACCEPTED

MASONS.

LANDLORD AND TENANT- LEASE - CONSTRUCTION WAIVER OF PROVISIONS.

Where a lease of lodge rooms by one lodge to another, to be used in common by the lessor and lessee, provided that they should not be leased or rented to any other lodge, "without a twothirds majority of both lodges," the permitting of another lodge affiliated with the lessee and also one affiliated with the lessor to occupy the rooms by common consent or acquiescence, was not a waiver of such provision, which entitled the lessor to rent the same to a third organization against the objection of the lessee.

Appeal from Kalamazoo; Adams, J. Submitted June 22, 1905. (Docket No. 48.) Decided September 20, 1905.

Bill by Portage Grange, No. 16, Patrons of Husbandry against Portage Lodge, No. 340, Free and Accepted Masons, and others to restrain defendants from interfering with complainant's lessee. From the decree rendered, complainant appeals. Affirmed.

Howard & Howard, for complainant.

Alfred S. Frost and Alfred J. Mills, for defendants.

OSTRANDER, J. The facts are somewhat complicated. Generally, and sufficiently for our purposes, they may be stated as follows: Complainant and defendant Masonic Lodge No. 340 occupy the relation of lessor and lessee, respectively, under a written lease, construction of which lease is involved and is made in the decree. The provis ion of the lease with which the parties are principally concerned is:

"The said party of the first part [complainant] reserves

the use of the second story equally with the said party of the second part, together with all its furniture and fixtures, but reserves the full right and control of the remaining described property, to lease, let, or rent without the consent of the said party of the second part. It is understood by and between the two parties of this instrument that the upper hall is to be used only for lodge purposes and the transaction of their business, and cannot be leased or rented to any lodge without a two-thirds majority of both lodges."

Complainant did lease these rooms to defendant Ladies of the Modern Maccabees, a body having a lodge system and which on various occasions occupied the lodge rooms. This occupancy was interfered with and the meetings interrupted by persons alleged to represent or be members of the Masonic Lodge, which order had not consented to such leasing and occupancy, and the bill in this cause was filed. The principal relief prayed for is an injunction restraining said lessee and certain individuals, named, from 'further interfering with meetings of the Ladies of the Modern Maccabees. A good deal of testimony was taken. The decree entered denies complainant any relief. Complainant has appealed.

It is insisted on the part of the complainant, and is the principal contention here, that, because by mutual consent of the parties to the original lease-at least, by mutual acquiescence-the Order of the Eastern Star had been permitted to occupy the rooms, the defendant Masonic Lodge waived the provision of the lease above quoted. It appears, however, that by the same mutual consent an order known as the "Pomona Grange" was permitted to occupy the rooms. These last-named orders are in some ways affiliated, respectively, with the Masons and with the Grangers. It would be of no general interest and would profit no one to set out the testimony showing the connection between these orders, nor the course of conduct of each. The question presented is a mixed one, involving both law and fact. The circuit judge was warranted in his conclusion, in view of the evidence, that there was

no waiver by defendant lessee of the provision of the lease against letting to other orders. We think, also, the court rightly construed the lease. A careful reading of the record and of the briefs of counsel has convinced us that the decree ought not to be set aside or modified in favor of the party appealing. It is affirmed, with costs of this court to defendants, other than Portage Hive, No. 326, Ladies of the Modern Maccabees.

MCALVAY, BLAIR, MONTGOMERY, and HOOKER, JJ., concurred.

141 404 147 186 147 188

FIRST NATIONAL BANK OF TRAVERSE CITY v. TOWNSHIP
CLERK OF UNION TOWNSHIP.

MANDAMUS-TOWNSHIP OFFICERS-PURCHASE OF MACHINERY-IN-
TEREST ANTAGONISTIO TO TOWNSHIP.

Mandamus, being to some extent a discretionary writ, is prop-
erly refused when sought to compel the certification of the
amount due on a township order given for the purchase of
road machinery by the township board, in which the super-
visor had an interest by way of compensation received from
the seller of the machine.

Certiorari to Grand Traverse; Mayne, J. Submitted June 27, 1905. (Calendar No. 21,085.) Decided September 20, 1905.

Mandamus by the First National Bank of Traverse City to compel the township clerk of Union township to certify an amount to the board of supervisors for the purchase of a road machine. There was an order denying the writ, and relator brings certiorari. Affirmed.

John W. Patchin, for relator.

Parm C. Gilbert, for respondent.

OSTRANDER, J. On or about December 17, 1902, pursuant to the provisions of Act No. 173, Pub. Acts 1897 (2 Comp. Laws, §§ 4193-4197), the commissioner of highways for the township of Union, in the county of Grand Traverse, upon the joint request of a majority of the overseers of highways of such township in writing, and with the assent of the township board of the township purchased for the use of the township, upon credit, from a manufacturer of road machines through the agent of such manufacturer, a road roller. In accordance with the contract of purchase and sale, a township order was drawn, registered by the clerk of the township, a true copy filed by him in his office, delivered to the vendor, and by the vendor assigned to relator and plaintiff in certiorari, a copy of which order follows:

"To the Treasurer of Union Township in Grand Traverse County, State of Michigan:

"Whereas, the commissioner of highways of your said township has heretofore duly contracted for and purchased of C. W. Carter & Co., in pursuance of the laws of the State of Michigan, one Carter patent snow roller:

"You are hereby directed and required to pay to said C. W. Carter & Co., of St. Johns, Michigan, or order, out of the highway fund of said township ($500) five hundred dollars, the contract price therefor, as per contract as follows: $100 on the 1st day of March, 1904; $100 on the 1st day of March, 1905; $100 on the 1st day of March, 1906; $100 on the 1st day of March, 1907; $100 on the 1st day of March, 1908-with interest at the rate of six per cent. per annum, payable annually, from the 20th day of December, 1902, at First National Bank, in Traverse City, Michigan.

"Witness our hand and seal as highway commissioner and supervisor of said township, this 17th day of December, 1902.

"D. MCALEY, Highway Commissioner. "C. M. HAGER, Supervisor."

Nothing has been paid on the order. It is alleged that