intent to throw aside all safeguards by which such such investigations are recognized as best protected.

The rule against hearsay evidence is more than a mere artificial technicality of law. It is founded on the experience, common knowledge, and common conduct of mankind. Its principles are generally understood and acted upon in any important business transaction or serious affair in life. In such matters men refuse to reply on rumor or what some one has heard others say, and demand the information at first hand. The common, instinctive weight usually given such evidence is illustrated by this statement of Dr. Smith, after relating what deceased told him as to how he hurt his hand, "I don't know anything about it;" and of Mrs. Taylor, a daughter of deceased, who, in connection with her testimony as to what she had been told, said, "I really don't know myself;

the only thing I know about this matter is that the night I went home they took him to the hospital." The danger and unreliability of hearsay testimony is well exemplified in her evidence. She testified that Haberstoh, a fellow workman in the shop, saw the accident and described it to her, as she related it while testifying. This, on the surface, would seem to be about as satisfactory and convincing hearsay evidence as could be produced. Had Haberstoh been unavailable, it would have been equally competent and uncontrovertible, but it was shown by Haberstoh himself that he saw nothing of any accident, and obtained his information from Charles Ruskei, the boy who worked in the shop afternoons, who himself saw nothing, but heard deceased state how he hurt his hand.

Coming directly to this line of testimony as applied to workmen's compensation cases, it is said in Boyd on Workmen's Compensation, p. 1123:

"The statements made by an injured man as to his bodily or mental feelings are admissible, but those

made as to the cause of his illness are not to be received in evidence. The rule applies to statements made by a deceased workman to a fellow workman as to the cause of his injury."

And more fully in Bradbury on Workmen's Compensation, p. 403, as follows:

"The statement made by an employee in the absence of his employer, by a deceased man, as to his bodily or mental feelings are admissible in evidence, but those made as to the cause of his illness are not admissible in evidence and where there is no other evidence of an accident arising out of and in the course of the employment than statements made by a deceased employee in the absence of his employer, an award cannot be sustained."

In Gilbey v. Railway Co., 3 B. W. C. C. 135, where a workman at a meat market on arriving home told his wife that he had broken his rib when trying to save some meat from slipping into the dirt, the court said:

"To hold such statements ought to be admitted as evidence of the origin of the facts deposed is, I think, impossible. Such a contention is contrary to all authority."

This rule is emphasized to the extent of even holding admission of such evidence reversible error in Smith v. Hardman & Holden, Ltd., 6 B. W. C. C. 719, because the mind of the trial court might have been "colored by his admitting statements which are inadmissible as evidence."

We do not think, however, that under the language used in our workmen's compensation act the decisions of its administrative board must be in all cases reversed under the rule of presumptive prejudice, because of error in the admission of incompetent testimony, when, in the absence of fraud, there appears in the record a legal basis for its findings, which are

made "conclusive" by statute when said board acts within the scope of its authority.

As a part of the plan for a practical administration of this law, section 17 of part 3 requires each employer who elects to come under the provisions of said act to keep a record of injuries "received by his employees in the course of their employment," and within ten days after an accident resulting in personal injury to report the same in writing to the industrial accident board, on blanks printed for that purpose.

The first knowledge which came to the board of this accident is contained in the report of appellant, made by an admitted agent. It is dated January 9, 1913, and marked "First Report of Accident." It states, amongst other things, that on December 26, 1912, Reck, a baker by trade, was injured; the "cause and manner of accident" being that he "was throwing wood in furnace and a nail run in left hand inflicting a deep gash." This report was made three days before Reck's death, and indicates that the employer. or his representatives, had full notice of the injury, with ample opportunity to investigate while Reck was alive, and all sources of information were both fresh and available. A second report, after Reck's death, made on January 15, 1913, giving the same date of the accident, etc., states of its "cause and manner:"

"The injured was throwing wood in the fire and a nail scratched his left hand. He worked for two or three days after the accident, when the hand became infected, and he was sent to the hospital. After the hand had started to heal nicely he contracted bronchopneumonia, which disease caused his death January 13, 1913."

We think that such reports from the employer, where all sources of information are at his command when the reports are made, and he has had ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, as prima facie

evidence that such accident and injury occurred as reported.

No evidence was offered to impeach the reports or to show that the accident occurred otherwise than as stated in them. Eliminating from consideration the hearsay testimony erroneously admitted, which could not affect either way the legal significance of such reports, the record furnishes legal support for the findings of fact made. Consequently such findings are to be recognized as conclusive under the statute.

The decision of said industrial accident board is therefore affirmed.

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

JONES v. BERKEY.

1. VENDOR AND PURCHASER-BREACH OF CONTRACT-LAND CONTRACT -TIME.

Under a contract for the sale of land made by defendants, who had only a contract interest in the premises under a prior land contract, and accordingly provided for payments to be made by the vendee at the times when installments fell due upon the first contract, stipulating, moreover, that time should be of the very essence of the agreement, and that in the event of plaintiff's default, defendant could sell the property without incurring a liability for breach, defendant was entitled, after default and resale to a third person, to have a sufficient sum tendered to include necessary costs and expenses arising from the undisputed default; to offer merely the payment

provided for by the terms of the agreement was insufficient as foundation for an action for damages.

2. SAME

TIME AS OF ESSENCE-CONTRACTS.

While, as a general rule, time is not of the essence of a contract to pay money, though the time for payment be fixed, and a declaration of such intention is not conclusive, yet, where the requirement is reasonable, and the circumstances give occasion for it, the parties may properly stipulate that the provisions relative to the time of installments to be paid upon a land contract shall be of the

essence.

3. SAME-PAYMENT-TENDER.

A party seeking relief against a forfeiture should tender sufficient to make the other party whole.

4. SAME-BREACH OF CONTRACT.

He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for failure to perform.

Error to Kent; Brown, J. Submitted April 22, 1914. (Docket No. 109.) Decided July 24, 1914

Assumpsit in justice's court by Henry W. Jones and Daisy M. Jones against Charles H. Berkey for damages for breach of a contract for the sale of lands. From a judgment for defendant, plaintiffs appealed to the circuit court. Judgment for plaintiffs. Defendant brings error. Reversed; new trial denied.

Taggart & Taggart, for appellant.

Fred P. Geib and William J. Landman, for appellees.

STEERE, J. In this action plaintiffs recovered a verdict and judgment for $250 against defendant, in the Kent county circuit court, as damages for an alleged failure to convey to plaintiffs a certain 40 acres of land located near the city of Grand Rapids, in conformity with the provisions of a contract of purchase