owski alone. The relief sought was specific performance. Later the sale of the property to Krause was learned and the amended bill making him a party was filed. Outside the question to which we shall presently refer, the questions involved must be determined upon disputed and conflicting testimony. Time was not made the essence of the contract, and the question here is not so much a question of whether there had been default in some of the provisions of the contract, as it is whether there had been a forfeiture of the contract, and whether the parties themselves did not treat the contract as in full force until Domzalski found a customer at a price nearly $1,000 above the amount due on the contract. The trial judge was of the opinion that plaintiffs had made a case for specific performance against defendants Temerowski, and that defendant Krause was a bona fide purchaser of the premises. With both of these conclusions we agree. The defendants Temerowski, having parted with their title to the premises, could not specifically perform their contract with plaintiffs. The court therefore entered a decree for the amount of their damages. We do not understand it to be claimed that such a decree was not proper under the findings of the court. Nor is it pointed out, and we do not discover, that it is incorrect in amount. The court, having acquired jurisdiction of the case and the parties, should dispose of the controversy. The decree was a most equitable one. Unless there are insuperable legal objections it should be affirmed.

When plaintiffs' counsel offered the contract in evidence it was objected to by counsel for defendant Krause. The ground of objection being that the specific tax provided for by Act No. 91, Pub. Acts 1911 (1 Comp. Laws 1915, § 4268 et seq.), had not been paid. There was some discussion of the question, but the court did not dispose of it and suggested that it

might be brought up again. The record does not disclose that the attention of the court was again challenged to it. It is here urged by the appealing defendants that the court should have declined to receive the contract in evidence and that the decree based upon it should not stand. Plaintiffs are seeking the enforcement of this contract and we are not here concerned with the question of which party should pay the specific tax provided for in this act; nor have we a case before us where the court has finally decided against objection that an instrument within the purview of that act is admissible in evidence without the payment of a specific tax, and that it furnishes the basis for affirmative relief. Undoubtedly, had the objection been insisted upon, the trial court on the authority of Nelson v. Breitenwischer, 194 Mich. 30, would have required the payment of the specific tax before the case was proceeded with. In Lake Erie Land Co. v. Chilinski, 197 Mich. 214, we declined to consider this question where it was raised for the first time in this court in a reply brief. Here the

point was made in the court below but the decision of the question was postponed. We think under the circumstances the tax should be paid as a condition of affirmance of the decree, and that the case should not be reversed on this question alone.

The decree of the court below will be affirmed on the payment of the specific tax within 30 days, otherwise it will be reversed. No costs will be allowed.

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

In an action for injuries to a 5-year-old girl caused by defendant's moving van running over her hands, evidence that the van had stood for three hours while being loaded, that in the meantime plaintiff and other children were playing around it and in the yard, that defendant's servants, without any attempt to discover the whereabouts of the children or whether they were dangerously situated with reference to the van, started it while plaintiff was under it getting a ball, held, to present a question for the jury as to defendant's negligence. OSTRANDER, C. J., and BROOKE, J., dissenting.

2. SAME-UNANTICIPATED ACT-LIABILITY.

Where an accident results from the sudden and unanticipated act of a child of immature years which could not be foreseen or guarded against, there is no liability.

Error to superior court of Grand Rapids; Dunham, J. Submitted October 16, 1918. (Docket No. 55.) Decided December 27, 1918.

Case by Katie Czarniski, an infant, by her next friend, against the Security Storage & Transfer Company for personal injuries. Judgment for plaintiff. Defendant brings error. Reversed.

Hatch, McAllister & Raymond, for appellant.
Smedley & Linsey, for appellee.

Defendant owns and operates moving vans in the city of Grand Rapids. One Jankowski, who lived at 348 Indiana avenue, employed it to do his moving. Mike Czarniski lived at 346 Indiana avenue. Plaintiff is his daughter aged about five years. The distance

between the two houses is about eight feet. Defendant's moving van was backed into this space handy to the Jankowski's front porch and the household effects of that family were loaded into the van. It took about three hours to do this work. During this period plaintiff and five other small children of the two families were playing about the van, in front of the house, and in the back yard. The back yard was a small space about 30 or 35 feet wide and 43 feet long. When the work of loading the van was completed the driver and his helper got up on the seat in front, but under the cover and within the sides of the van. Neither of them was produced as a witness although their absence was excused. One of them was in the army, and the other could not be found when service of subpœna was attempted. The only eye-witness to the accident was a brother of plaintiff, a lad about 11 years old. He testified that the driver and helper rolled cigarettes and lighted them before driving out of the yard. The questions asked him by both counsel were quite leading, and in answer to such questions he stated at one time that this occurred after they were up on the seat, and at another, that it occurred before they got up on the seat. The children were playing ball in the back yard and the ball had rolled under the van. Plaintiff went under the van to get it. Her brother, seeing her danger, testifies he "hollered" to her. As she was coming out on her hands and knees the van started, the back wheel going over both her hands, dismembering the little finger on one of them, and seriously injuring both. Plaintiff had verdict and judgment and defendant brings the case here for review.

FELLOWS, J. (after stating the facts). It is most strenuously urged by defendant's counsel that a verdict for the defendant should have been directed; that

the evidence made no jury question of negligence of defendant's employees; and that in any event error was committed in failing to instruct the jury as requested.

The plaintiff at the time of the accident was but five years old. Her movements were controlled more by the caprice of childhood than the exercise of judgment.

"Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly." Powers v. Harlow, 53 Mich. 507.

The case before us is novel and differs from Powers v. Harlow, supra, Anderson v. Newport Mining Co., 202 Mich. 204, and kindred cases. There is no question but that plaintiff was lawfully upon the premises, nor was the accident occasioned by an instrumentality naturally calculated to attract children. Cases of the line above noted may therefore be dismissed from our consideration and makes it necessary in a considerable degree to seek our authorities outside of those cited in the brief; authorities which by analogy are applicable, however, are not wanting.

In the case of Oster v. Traction Co., 195 Pa. 320 (45 Atl. 1006), a child six years and eleven months old had been run over in the street adjoining a schoolhouse. The motorman saw children in the streets. The court said:

"He knew the school house was there, and seeing the children in the road was notice to him that it was recess, or, at least, that the school was not in session. These circumstances put on him the duty of at once getting his car under special control. Whether he did all that was reasonably proper for that purpose was necessarily a question for the jury. The cases of this kind, where it is for the court to direct the ver