text:
    WOODWORTH v. PORTER.
    Specific Performance — Oral Contract — Equity — Pleading— Sufficiency — Dismissal.
    Where the averments of plaintiff’s bill for the specific performance of an oral contract which entitled, him to a valuable farm, if supported by proofs, were sufficient to make a case, the court below properly denied defendants’ motions to dismiss.
    Appeal from Kent; McDonald (John S.), J.
    Submitted January 6, 1921.
    (Docket No. 69.)
    Decided March 30, 1921.
    Bill by Irving Woodworth against Benjamin C. Porter, executor of the last will of Abby R. Burnham, deceased, and others for the specific performance of a land contract. From an order denying motions to dismiss, defendants appeal.
    Affirmed.

      Charles E. Ward, for plaintiff.

      Wykes & Averill, for defendants.
   Moore, J.

The bill of complaint was filed to specifically enforce an alleged parol contract covering a valuable farm and valuable personal property. The motions to dismiss the bill were interposed on behalf of the executor and also on behalf of certain devisees and legatees under the will of Mrs. Burnham. The executor also answered at length the averments of the bill, of complaint! The motions to dismiss the bill of complaint were overruled. The case is now in this court upon an appeal from the order overruling the motions-to dismiss.

Counsel contend the bill of complaint should be dismissed:

“1. That the alleged contract in its statement of essential details to be performed by plaintiff, is so vague, indefinite, general and incomplete, as not to represent a meeting of the minds of the parties, or as to be sufficient to form legal relations or to permit the court to say what the contract was, or whether it has been performed.
“2. That no contract enforceable by specific performance is alleged; that the general and loose terms of the alleged contract, if made out, would constitute simply an arrangement by which plaintiff was to continue his tenancy of the farm, to manage it, to make improvements consistent with the interests and legal rights of both parties, to treat the Burnhams as a son would treat them, with the possibility that his attention would be such as to win their regard so that at their death they might recompense him, if satisfied with his conduct.
“3. That, to say the most that can be said in favor of plaintiff’s allegations, the contract left all material terms to agreement of the parties from time to time and was to be performed by plaintiff to the Burnhams’ satisfaction, and that their dissatisfaction is conclusively expressed by so deeding and willing the property as to negative the idea of performance upon their part and to deny plaintiff’s claims.
“4. That the agreement is void as not complying with the statute of frauds, there being no sufficient allegation of part performance to take the case out of the statute.
“5. That the bill is without equity.”

The defendants are descendants or heirs at law of Ira Y. Burnham and Abby R. Burnham, deceased, or legatees under the will of Abby R. Burnham, deceased.

The bill of complaint is very long. Its averments cover 28 printed pages of the record. It is not practicable to incorporate all of them in this opinion, for it would make it unduly long. Stated briefly, it is the claim of the plaintiff that he made an arrangement in the lifetime of the Burnhams which he carried out in full, running through a long series of years, which entitled him to the valuable farm in controversy, upon their deaths, and also that by reason of what he did he is entitled to the proceeds of sales of certain real estate made by the Burnhams in pursuance of an arrangement made between them and the plaintiff.

Without going into detail we shall content ourselves with saying that if the averments of the bill of com: plaint are supported by the proofs, a case would be made under the repeated rulings of this court, bringing the case within the equity jurisdiction of the court. Some of the cases are Twiss v. George, 33 Mich. 253; Welch v. Whelpley, 62 Mich. 15; Taft v. Taft, 59 Mich. 185; Taft v. Taft, 73 Mich. 502; Ruch v. Ruch, 159 Mich. 231; Root v. Snyder, 161 Mich. 200; Howe v. Benedict, 176 Mich. 522; Charlet v. Teakle, 197 Mich. 426.

The order overruling the motions to dismiss is affirmed, with costs to the appellee. The case is remanded to the court below for further proceedings.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
      In re BAILEY’S ESTATE.
    1. Appeal and Error — Trial — Directed Verdict — Evidence — Construction.
    On reviewing a directed, verdict, the court should give appellant’s evidence the most favorable construction it will bear.
    2. Wills — Competency — Undue Influence — Evidence — Sufficiency — Directed Verdict.
    In a will contest case, where it was not claimed by contestants that testator was not competent to do such business as he was called upon to do, and there was' no offer made to show that any one influenced or attempted to influence him in making said will, the trial court properly directed a verdict for proponents.
    Error to Ingham; Wiest (Howard), J.
    Submitted January 4, 1921.
    (Docket No. 11.)
    Decided March 30, 1921.
    Milton Bailey and others presented for probate the last will of John J. Bailey, deceased. The will was allowed in the probate court, and Orla H. Bailey and others appealed to the circuit court. Judgment for proponents on a directed verdict. Contestants bring error.
    Affirmed.

      D. G. F. Warner, for appellants.

      George R. Heck and Louis E. Howlett, for appellees.
   Moore, J.

This is a will contest. John J. Bailey died, leaving a will. By the terms of this will he gave his wife the use of one-third of ail the real estate which he owned, and one-third of all his personal property. To each of his children $1. To three uncles and aunts $1,000 each, and to another aunt $500. To Meritta Gibson $500. To Alice Glass, with whom he had lived for about three years, $500. To Emma Retan, the nurse who cared for him in his illness, $100, and the residue to his cousins, Leroy Bailey of Saginaw, Michigan, and Milton Bailey of Lansing, Michigan.

As long ago as in 1900, Mr. Bailey had become estranged from his wife and family. At the time of his death, a divorce suit was pending between himself and wife, which found its way into this court. Heck v. Bailey, 204 Mich. 54. A reading of the opinion in that case will be helpful here.

The widow and children of Mr. Bailey contested the will upon the grounds of incompetency and undue influence. The will was admitted to probate, and an appeal was taken to the circuit court. A prima facie case was made by the proponents and the will was received in evidence.

Counsel for contestants then stated at length what he expected to prove, and all that he expected to prove. The trial judge was of the opinion that, conceding counsel proved all he stated he expected to prove, he failed to state a case, and directed the jury to return a verdict in favor of the will. The case is brought here by writ of error, counsel insisting there was a case for the jury.

It is elementary that the appellant is entitled to have his evidence given the most favorable construction it will bear. Johnson v. Desmond Chemical Co., 156 Mich. 669; Schmidt v. Mining Co., 159 Mich. 308.

Judged by this test, does the statement of counsel go any farther than to show that the testator and his family were estranged, and that the testator was most at fault?

We now quote from the brief of appellants:

“We admit that the statement as to undue influence is not very strong, standing alone, but taken in connection' with the other matters in the case we think that we were able to make such a showing as should be considered by a jury where it says:
'“On the'trial of this case (referring to the divorce case) the family clove to the mother and disputed the question of desertion, telling the facts as they understood, them and as they existed, which were contrary to the interests of the father. There was one witness, I believe, Milton W. Bailey, a relative of Mr. Bailey, who did testify for him and in his behalf. This same Milton Bailey was the one who loaned him the $20 the morning he drew the will. He was a constant visitor at the house and was there with him frequently.’
“By tMs statement we offered to show at least that this Milton Bailey had loaned the testator money on the day he drew the will. That he had been a constant visitor there, had ah opportunity to influence him, and was one of the beneficiaries named in the will. In fact he and another cousin were to receive the bulk of the estate.
“In re Loree’s Estate, 158 Mich. 372:
“ ‘While the burden of proof in contesting a will is on the contestants, a verdict should not be directed where undue influence is inferable from all the surrounding circumstances.’
“Andrews v. Lavery, 159 Mich. 27:
“ ‘Undue influence is largely a matter of inference from facts and circumstances, including the character, disposition and mental condition of the person influenced, and the opportunity to influence him.’
“Clearly _we feel that had the evidence been adduced along the line of the opening statement of the counsel in this regard we would come clearly within the last two decisions cited, as to undue influence. In cases of this Mnd it is almost impossible to get direct evidence of undue influence, for the person who exercised it will not acknowledge it, and the party on whom it was exercised is gone. Therefore as stated in the case of Rivard v. Rivard, 109 Mich. 111 (63 Am. St. Rep. 566):
“ ‘Every person will naturally say that some good reason must be found to account for such a disposal of. a large property by a parent. Undue Influence is not exercised openly. Like crime it seeks secrecy in which to accomplish its poisonous work. It is largely a matter of influence from facts and circumstances surrounding tAe testator, Ais character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.’ ”

A reference to the cases cited by counsel will show that the instant case falls far short of.those cited. There is no pretense that Mr. Bailey was not competent to do such business as he was called upon to do, and there was no offer made to show that any one influenced or attempted to influence him in making the will that was made.

We think the verdict was properly directed. See In re Haslick’s Estate, 195 Mich. 438 (Ann. Cas. 1918D, 466), and In re Doty’s Estate, 212 Mich. 346, and the many cases cited in the last-named case.

Judgment is affirmed, with costs to the appellees.

Steers, C. J., and Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    SCHAVEY v. STATE HIGHWAY COMMISSIONER.
    1. Highways and Streets — Assessments for Benefits — Board of Review — Covert Act.
    Where a road district for the improvement of a public highway petitioned for under the provisions of tAe Covert act (Act No. 59, Pub. Acts 1915, as amended by Act No. 310, Pub. Acts 1915, and Act No. 125, Pub. Acts 1917) extends into two or more counties, the appeal provided for in said act (sectionsi 41-52) does not authorize the appointment of a board of review by the probate judge of one county with authority to apportion the benefits of said improvement which shall be binding upon such other county or counties.
    2. Same — Legislative Question.
    If review of the action of the State highway commissioner in such cases is desirable, the legislature is the proper body to provide such relief.
    Mandamus by William Schavey, James Houston and Bert Lee, county road commissioners of Eaton county, to compel Frank F. Rogers, State highway commissioner, to apportion the benefits of an inter-county highway as determined by the board of review of Eaton county.
    Submitted February 8, 1921.
    (Calendar No. 29,526.)
    Writ denied March 30, 1921.

      Harry H. Partlow, for plaintiffs.

      Merlin Wiley, Attorney General (Leland W. Carr, of counsel), for defendant.
   Moore, J.

This proceeding involves the construction and application of certain provisions of Act No. 59, Pub. Acts 1915 (1 Comp. Laws 1915, § 4671 et seq.), as amended by Act No. 310, Pub. Acts 1915, and Act No. 125, Pub. Acts 1917, known as the Covert act. The act provides that when the road district is situated in two or more counties the petition for the improvement shall be presented to the State highway commissioner. A petition was presented to the defendant asking for the improvement of four miles of road on the line between the counties of Ingham and Eaton. The various steps required by the law were taken for the apportionment of benefits among the townships, the counties and the assessment district; 1814% was apportioned to Ingham county, 23% to Eaton county, 71/2% to Delhi township (Ingham county), 83/4% to Lansing township (Ingham county), 83/4% to Delta township (Eaton county), 8%% to Windsor township (Eaton county), and 25% to the assessment district.

Section 41 of the statute of 1915 (1 Comp. Laws 1915, § 4711) provides the method of an appeal. The county of Eaton sought to avail itself of the right to appeal and made application to the probate court of said county for the appointment of a board of review. This board was appointed and after a hearing made a finding changing the assessment, not only against Eaton county and the townships thereof, but also the assessment against Ingham county and both of the townships in that county. The proportion of the cost of the improvement charged against the assessment district was not changed. The defendant claiming it had no authority to act, paid no attention to the action of the board of review. The plaintiffs ask that a writ of mandamus be issued by this court compelling the defendant to proceed with the apportionment of benefits roll as made and determined by the board of review appointed by the probate court of Eaton county.

Counsel are agreed that two questions may be presented in the instant case:

(1) May the probate court by virtue of the provisions of the statute appoint a board of review that may in cases like the instant case change the assessment made by the highway commissioner?

(2) Could the legislature confer on a board of review appointed in the manner prescribed by the act the right to exercise jurisdiction in another county than the one in which the board of review was appointed ?

Counsel for plaintiffs insists that the statute does authorize the proceeding which was taken and that the order made by the board of review is binding upon all parties, including the defendant. In support of this contention he quotes portions.of sections 17, 22, 41, 42 and 44-of the act (1 Comp. Laws 1915, §§ 4687, 4692, 4711, 4712, 4714).

If the contention of the plaintiffs is true we might have the anomalous result that a board of review might be appointed at the same time by the probate judge of Eaton county, and by the probate judge of Ingham county, which boards of review might and probably would reach results that could not be harmonized.

The sections of Act No. 59, Pub. Acts 1915, dealing with the review of assessments are sections 41 to 52, inclusive. These sections are so accessible that there is no occasion to quote them here. We think a careful reading of them will show that they do’ not authorize the proceeding which was taken by the plaintiffs in the instant case. If a review of the action of the highway commissioner in cases like the present one is desirable, an appeal should be made to the legislature where relief which would take care of the interests of both counties might be enacted.

The writ of mandamus is refused. As the question involved is one of public interest, no costs will be given to either party.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Wiest, J.

text:
    PEOPLE v. SMITH.
    1. Criminal Law — Automobiles—Unlawful Possession of and Driving Away — Statutes—Elements of Offense.
    Under Act No. 313, Pub. Acts 1919, making it a felony for any person wilfully and wantonly without authority to “take possession of and drive or take away” an automobile belonging to another, unlawful possession constitutes an element of the offense.
    2. Same — Lawful Possession — Garage Owners.
    Where an automobile was stored for hire at night in defendant’s garage, his possession of the car was lawful, and his driving the same away without the authority of the owner did not constitute an offense under the provisions of said act.
    Error to Bay; Houghton (Samuel G.), J.
    Submitted January 13, 1921.
    (Docket No. 117.)
    Decided March 30, 1921.
    Vernon Smith was convicted of unlawfully driving away an automobile, and sentenced to pay a fine of $50 and to be confined for 30 days in the county jail.
    Reversed, and defendant discharged.

      McCormick & Sharpe and T. E. Webster, for appellant.

      William A. Collins, Prosecuting Attorney, for the people.
   Wiest, J.

Defendant stands convicted of the crime of wilfully and wantonly and without authority taking possession of and driving away from a garage in Bay City an automobile, the property of John Rapanski. It appears that defendant was the proprietor of the garage and Mr. Rapanski stood his automobile in the garage nights, paying for the right to do so. At the trial a motion was made to discharge the defendant on the ground that possession of the automobile was in him while in his garage, and therefore he could not be guilty of taking possession within the meaning of the statute under which he was prosecuted. The trial judge being of the opinion that “if any person, even the owner of a garage, takes an automobile standing legally in his garage without authority, that is in violation of the statute,” denied the motion. The statute, Act No. 313, Pub. Acts 1919, provides:

“Any person who shall wilfully or wilfully and wantonly and without authority, take possession of and drive or take away and any person who shall assist in and be a party to such taking possession of, driving or taking away of any automobile or other motor vehicle belonging to another and lawfully standing in any street, alley, garage, stable or other place, shall be deemed guilty of a felony.” * * *

It is urged that, under this statute, the possession of the automobile must be shown to have been taken by the defendant from another, and, inasmuch as defendant had possession as keeper of the garage where it was standing, he could, not be found guilty of taking possession. If the element of taking possession is eliminated the case against defendant falls within the provisions of section 15431, 3 Comp. Laws 1915, which makes it a felony to take or use an automobile without authority and without intent to steal the same. Under this last-mentioned statute the scope thereof is not restricted to the taking and operation of a motor vehicle by one who has no relation whatever to the owner, but extends to and includes one who may have a general relation, or a special relation, to the owner such as a servant or bailee. Berry’s Law of Automobiles (2d Ed.), § 919; Huddy on Automobiles (5th Ed.), § 769. If the words “take possession of” as employed in the statute under which defendant was prosecuted have significance and constitute an essential element of the crime charged, then it is important to determine whether defendant while in possession of the automobile, as bailee, could commit the crime. It is clear that, to constitute the offense, possession must be taken, followed by a driving or taking away, and this must be done wilfully or wilfully and wantonly and without authority. Here the defendant had possession as bailee and if he used such lawfully obtained possession for an unauthorized purpose and in breach of his trust as bailee, and wilfully and wantonly and without authority drove the car away from his garage he would not be guilty of the charge here laid. As a bailee for hire defendant held the possession of the automobile in his own name, but subordinate, of course, to the title of the owner, and liable to be ended at the will of the owner. It has been held that upon an indictment for unlawfully driving and operating an automobile without the consent of the owner an allegation of ownership in the name of a garage owner having custody of the automobile was good. State v. Shoemaker, 96 Ohio St. 570 (117 N. E. 958). Also that the proprietor of a garage, with whom the owner of a motor car has left it for repair, has a special property in the motor car as bailee, and may maintain an action of tort for conversion thereof. Beacon Motor Car Co. v. Shadman, 226 Mass. 570 (116 N. E. 559). Defendant, as bailee of the automobile, could not, while so having possession, be charged with wilfully and wantonly and without authority taking possession. The motion to discharge the defendant should have been granted, and the conviction is set aside and defendant is discharged.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. NANNINGA.
    1. Intoxicating Liquors — Criminal Law — Engaged in Manufacturing Liquors, What Constitutes.
    In a prosecution for a violation of the liquor law (Act No. 53, Pub. Acts 1919), where defendant concedes that he was actually engaged in making whisky at the time of his arrest, his contention that he was unlawfully convicted of manufacturing whisky because he had not yet produced any, cannot be sustained, since to manufacture, within the purview of the statute, means not only to produce or create, but covers as well the active efforts and means employed in making the prohibited liquor.
    2. Same — Information—Surplusage.
    Defendant’s contention that, because he was charged in the information with being “engaged in the business” of manufacturing whisky, while the proofs show but a single act, therefore he should not be found guilty, cannot be sustained, since the words “engaged in the business” are not in the statute; are not an essential element of the offense, and may be treated as surplusage in the information.
    3. Appeal and Error — Criminal Law — Information—Duplicity.
    The objection that the information was bad for duplicity, not having been raised in the trial court, was waived, and cannot now be heard in this court.
    Exceptions before judgment from Muskegon; Vanderwerp (John), J.
    Submitted January 13, 1921.
    (Docket No. 116.)
    Decided March 30, 1921.
    Rehearing denied July 19, 1921.
    William Nanninga was convicted of violating the liquor law.
    Affirmed.

      James E. Sullivan, for appellant.

      Merlin Wiley, Attorney General, Harry W. Jackson, Prosecuting Attorney, and R. Glen Dunn, Assistant Prosecuting Attorney, for the people.
   Wiest, J.

Defendant was convicted of a violation of the liquor law, under an information of one count, charging that:

“He did unlawfully manufacture * * * and was then and there engaged in the business of manufacturing whisky, and was then and there in possession of certain still, kettles, pails, coils, rye, sugar and a quantity of sour corn mash, all of the same being implements and ingredients used in the manufacture of whisky.”

There was found upon the premises of defendant a large copper kettle with an iron band around the top firmly fixed with hooks and bolts, designed to hold the cover in place on the kettle, a cover loosely fitting the top of the kettle with strips of iron crossing the same, with holes and nuts that would fit the bolts so as to secure the cover on the kettle, also a copper coil called a worm, one end of which would fit into a hole in the cover and the other, end loose, also a large pail with a hole at the bottom, through which the other end of the coil or worm might pass, and a gasoline stove with the wick lighted and turned low, and on the stove a. granite kettle containing three or four gallons of rye and water mixed, and on the floor a large stone jar containing four or five gallons of rye and water mixed. The granite kettle was not over the flame of the stove, but witnesses testified that the water in the kettle was steaming. In another part of the dwelling was found a bag containing about a bushel of rye and a sack of sugar containing about 50 pounds. No whisky or any other intoxicating liquor was found. There was testimony that the apparatus above described constituted a good whisky still. Defendant was found in possession and testified that he was the owner of all the articles and ingredients; that he had never tried to make any whisky before, but had read how liquor might be made and had mixed the rye and water together about two hours before the officers came to his house, and had placed the sugar in the kettle on the stove, but there was no fermentation, although he intended to try it out, using the above articles mentioned to see if he could distill liquor.

The assignments of error present the question of whether defendant .should have been discharged on the ground that he was not manufacturing intoxicating liquor. It is urged in behalf of defendant that, to manufacture intoxicating liquor, the liquor must have an actual existence and not a mere potential one.

The statute, Act No. 53, Pub. Acts. 1919, provides that:

“It shall be unlawful for any person * * * to manufacture * * * intoxicating liquors.” * * *

Many definitions of the word “manufacture” are to be found in the books, but most of them are of little help upon the question presented; for we must construe the meaning here having in mind its sense in connection with the prohibition imposed. The purpose of this statute is to prohibit all manufacture of intoxicating liquors, except for the permitted purposes, and it reaches and stops all steps in the actual process of manufacturing up to and including the finished product. That defendant was actually engaged in making whisky is conceded, but it is claimed that, because his efforts to that end were arrested by the arrival of the police, he is not guilty of manufacturing. The construction contended for is too narrow and would lead to the absurdity that the law only prohibits the finished product and not any of the intermediate steps or the energy applied and the means employed toward accomplishing the end in view.

To manufacture, within the purview of this statute, means not only to produce or create, but covers as well the active efforts and the means employed in making the prohibited liquor. There can be no intoxicating liquor distilled without effort, assisted by means of producing; and one actually engaged in the effort of making such liquor, having assembled and actually using the method and means calculated to that end, falls within the statute making it unlawful to manufacture intoxicating liquor. It would be paradoxical to hold that a man who had read up on how to make whisky and had equipped himself with all the appliances for doing so, and gathered all the necessary ingredients, and was actually making whisky, was not making whisky.

The statute is clear enough and its object and end must not be defeated by a construction under which the finished product only is considered and not the actual manufacture of the prohibited liquor. Under an indictment for maintaining “a distillery where alcoholic liquors are manufactured and distilled,” it was held that:

“To constitute the offense of manufacturing liquor it is not necessary that the product of the manufacture should be complete. Manufacture is ‘the process of making by art or reducing materials into form fit for use, by the hand or by machinery’ (26 Cyc. p. 519); and one employed in this process is manufacturing.” State v. Ravan, 91 S. C. 265 (74 S. E. 500).

In State v. Horner, 174 N. C. 788 (94 S. E. 291), it was said:

“We do not agree with the learned counsel that the State was required to show that spirituous liquor was actually produced at the still, and that if the parties who were operating it had been caught in the act of making the liquor, though the process had not reached its final stage, they could not be convicted. They were manufacturing it, even though they had not finished their work and fully produced the intended result.”

It is also urged that because the information charges defendant with being engaged in the business of manufacturing whisky, and a single transaction only is shown, having no relation to any previous business of manufacturing, the defendant should not be found guilty of being engaged in the business of manufacturing. The words “engaged in the business” are not to be found in the statute, and therefore are not an essential part of the offense and may be treated as surplusage in the information. It is claimed that the information is bad for duplicity. That question not having been raised in the court below, and opportunity there afforded the prosecution to elect or to amend the information if it charged more than one offense, the defendant has waived his privilege and cannot be heard now to say that he has been harmed. See People v. Peck, 147 Mich. 84, 88.

We find no reversible error and the conviction is affirmed and the circuit court advised to proceed to judgment.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    LAWRENCE v. RAPAPORT.
    1. Landlord and Tenant — Eviction — Change oe Stairway by Landlord — Interference with Beneficial Use — Third Persons.
    Where a landlord, against the protest of his tenant on the second floor of a building, changed a stationary stairway from the first to the second floors into one that could he raised and lowered, and the tenant on the first floor so used said stairway as to interfere with the beneficial use thereof by the tenant on the second floor, the landlord’s connection with said change removes the case from the rule relieving him from responsibility for the acts of third persons.
    2. Same.
    The transforming of said stationary stairway by the landlord, held, to deprive? the upper tenant of the beneficial use of same at his will.
    3. Same — Eviction—Demand eor Possession — Countermand.
    To constitute a demand for possession during the term of a lease an eviction, the tenant must comply with the demand while it exists and vacate the premises under a standing order to do so, and he cannot justify under an order countermanded before he surrenders possession.
    4. Same — Demand Followed bx Surrender Terminates Lease.
    A demand made by the lessor and acceded to by the lessee in vacating the premises terminates the contractual relations of landlord and tenant, if the surrender of the premises is unconditional and consummated while the demand remains in force.
    5. Same — Mere Acquiescence Insueeioient — Frauds, Statute oe.
    If demand to vacate is made and assented to but no removal accomplished, the lease continues unimpaired, since acquiescence alone is insufficient to satisfy the statute of frauds.
    6. Same — Mere Words Not an Eviction.
    Mere words, no matter how offensive, and unwarranted demands cannot constitute an eviction, because the interference with the beneficial enjoyment of the premises must be something of a more permanent nature than a personal altercation between landlord and tenant or the making of a demand to which the tenant is not bound to accede.
    Error to Kent; Perkins (Willis B.), J.
    Submitted January 6, 1921.
    (Docket No. 67.)
    Decided March 30, 1921.
    Rehearing denied July 19, 1921.
    Assumpsit by Wilbur E. Lawrence against Jacob C, Fapaport for rent. Judgment for defendant. Plaintiff brings error.
    Reversed.

      S. Wesselius and L. W. Squier, for appellant.

      John M. Dunham, for appellee.
   Wiest, J.

This is an action for rent of premises leased by plaintiff to defendant for 5 years from the 1st day of February, 1915, and vacated by the defendant before the end of th© term. Under the plea of the general issue defendant gave notice of an eviction. The issues were submitted to a jury and verdict found for defendant. Defendant rented for the purpose of a retail clothing store the second floor at 222 Monroe avenue N. W., Grand Rapids, the premises having at •the time of the commencement of the lease a front entrance stairway, and at the rear a stationary stair leading to the alley and used to carry up fuel and some express and freight packages and to take down ashes and refuse. At the time defendant entered under the lease the lower floor of the building was let by plaintiff to another tenant and afterwards such lease of the lower floor was sublet by such tenant, with the consent of plaintiff, to one R. D. Carstens for use as a jewelry store. Mr. Carstens having a jewelry stock on the first floor and desiring to protect the windows at the rear opening upon the alley placed steel shutters over them to be closed at night and opened during the day. In order to install the shutters and permit them to be opened and closed it was found necessary to remove the stationary stair leading from the rear of defendant’s store to the alley and fix the same so that it could be raised up out of the way by means of pulleys and weights, and that was done, but without the consent of defendant. Thereupon trouble arose between defendant and plaintiff and the lower tenant and there is evidence in the case that the shutters interfered with defendant’s beneficial use of the stairs, preventing him at times from bringing up his fuel and express and carrying down ashes and refuse.

One of the issues at the trial was whether the change as made materially affected the use of the stairs when lowered; defendant claiming that the stairs were changed into a mere fire escape and rendered practically useless, and plaintiff claiming that the stairway was never more than a fire escape and was not changed except to be made to be raised or lowered.

Another issue involved trouble between the defendant and plaintiff over the use made by plaintiff of the front stairway culminating in plaintiff calling defendant abusive names, and the defendant claimed that the plaintiff ordered him to vacate the premises and he did so. Plaintiff denied ordering defendant to vacate the premises and claimed he ordered him to vacate upper rooms which defendant had not rented.

The plaintiff moved for a new trial which was denied. The assignments of error bring up the questions of whether there was sufficient evidence to go to the jury upon the claimed eviction and whether the defendant had a right to vacate if told to do so by the plaintiff, even though before he vacated plaintiff informed him he was laboring under a misapprehension and must not vacate the premises. Plaintiff insists that he is not to be held for any interference arising out of the acts of the lower tenant. The record discloses plaintiff’s connection with the matter of the change in the stairway sufficient to remove the case from the rule with reference to the acts of third parties.

An eviction must be predicated upon the wrongful act of the landlord and those acting with his permission, and which results in an interference with the beneficial enjoyment of the use the tenant pays him for. Here the lower tenant interfered with the upper one, and the landlord cannot, under the record herein, be heard to say that he is in no way responsible for the acts of the lower tenant. The landlord’s covenant for continued beneficial enjoyment on the tenant’s part does not, of course, make him guard the tenant against the wrongful acts of other persons, but does require him to see to it that the conveniences he has let for hire are not taken away or the beneficial use thereof interfered with) by any one who cannot, and does not, act except under his permission. It is clear that there was serious interference with the means of ingress and egress established and in use at the time of the letting. To transform a stationary stairway available for use at will to one that lifts up and out of the way of the lower tenant and open to use at the will of the lower tenant deprived defendant of a beneficial use of the stairway at his own will.

Had the case been submitted to the jury upon the sole issue of an eviction based upon deprivation of beneficial use of a part of the premises we should not feel inclined to disturb the verdict of the jury. The issues, however, as submitted, went beyond this and brought into the case the question of whether the plaintiff ordered the defendant to vacate the premises and the right of the defendant, if so ordered, to consider it an eviction and to vacate. If plaintiff ordered defendant to vacate the premises, as claimed, and defendant wrote him that he would do so and before he did so the plaintiff informed him that he had not ordered him to vacate and he must not do so and She would be held to his lease, then there was neither an eviction nor surrender of the premises by the defendant nor a release from his tenancy. The demand, if made, that the defendant vacate, not being operative when he did vacate, cannot be considered an eviction, and could not relieve defendant from the obligation to pay rent. To constitute a wrongful demand for possession a justification for leaving the premises, the tenant must accede to the demand and the surrender must be complete before a countermand of the order to move.

■Plaintiff requested the court to charge the jury as follows:

“The defendant claims that the plaintiff ordered him to move, but does not deny that before he acted upon said order he was notified that he was mistaken as to plaintiff’s intention by letter written his counsel. . And I instruct you, gentlemen, that this order to move, if such there was, did not give the defendant the right to vacate the premises and cease paying.”

The court charged the jury upon this subject as follows:

“Taking up the other question of fact, if you find, as a matter of fact that the defendant’s claim is true that the plaintiff on this Saturday in January told the defendant, or notified the defendant, using opprobrious language in connection with such statement, that he should move out of the premises or his goods would be thrown out, and that the defendant within a reasonably short time did move out, in compliance with that request, the plaintiff cannot complain of it. It is claimed, and it has been argued, that after the receipt of the defendant’s letter written on the same day and addressed to the plaintiff, the plaintiff, through his counsel, replied to the defendant, correcting his claim and statement as to what took place on that Saturday.
“As a matter of law, I instruct you that that letter cáme too late if the defendant is telling the truth, and you so find, as to what took place on that Saturday. If the plaintiff’s claim is true, the defendant would not be justified in vacating the premises; he would have no claim or right under his lease to vacate the premises if the plaintiff’s version as to what took place there is true, and you so find. But, on the other hand, if the defendant’s version is true that the plaintiff told him to get out of the premises or he would throw him out, I instruct you that the defendant had a right to take plaintiff at his word, if you find that language was used.
“Now, the burden of proof in this case rests upon the defendant to satisfy you, first, that by the change which was made in this stairway, his beneficial use of the premises was'interfered with; secondly, that no act of his or delay on his part resulted in an acquiescence on his part in such change; and thirdly, that the language used by the plaintiff in January, 1918, was the language which ha claims was used. To justify an eviction, he must establish either one or the other of these claims.
“Of course, if you should find by a preponderance of the evidence that this beneficial use of the premises was interfered with by a change of this stairway and that he did not acquiesce in such change under the evidence and the instructions I have given you, he would be entitled to recover; that is, he would be entitled to a verdict at your hands. And in the next place, putting that all aside, he would have a distinct and separate right to rely upon the transaction of January, 1918, if that took place as the defendant claims and you are satisfied by a preponderance of the evidence that it did take place as he claims, that would justify his removal from the premises; that in law would constitute an eviction and I so instruct you.”

After being absent for a time the jury returned into court and asked this question:

“If Lawrence swore at Rapaport in his place of business in the presence of his employees and patrons, or either of them, would that justify Rapaport in vacating the premises?”

This question was answered by the court as follows:

“Not that alone.”

The defendant testified:

“I sent a letter to him on January 26, 1918. I sent it after we had trouble on the Saturday afternoon when people were coming to make their payments. He had some beans laid across the stairway, one sack across the stairway and four or five sacks right up against the pillar on the side. I went out and I said to Mr. Lawrence, ‘What about that? You are always pulling this stuff off every Saturday. When it ain’t yourself, it is sending all your men up on the third floor.’ I went in the store and he came rushing in. I told him about the back stairway. I says, ‘You want your rent and you want your building. I want that back stairway fixed, the stationary, iron stairway.’ He said, ‘You God Damned dirty Jew, I have had enough of this;.you God Damned dirty Jew, get the hell out of here, or I will throw you out.’ Then I sat down and wrote him this letter. I told him I would get out.”

Four days after he wrote the plaintiff that he would get out he leased other premises but did not vacate for some time. The day of the above mentioned altercation defendant wrote the plaintiff as follows:

“Grand Rapids, Mich., January 26, 1918.
“Wilbur E. Lawrence,
“City.
“Dear Sir: Since you were down in our store the early part of the afternoon, I have been thinking over the dirty, insulting names you have called me and also what you said to me in regard to getting out and that you would throw all my fixtures from the third floor off your premises, also all the absurd language you •have used before my employees and customers who were there at the present time, also that you desired me to throw up my lease and get out. If my presence is so obnoxious to you, I will gladly accommodate you. I am now making arrangements to obtain another location and expect to be able to leave jrour building within the next two or three weeks, and since I am endeavoring to comply with your request, I ask that you make arrangements to turn over my lease properly canceled and I will pay you for any rent due up to the time I move.
“Yours truly,
“Jacob C. Rapaport.”

On January 29, 1918, the plaintiff replied to defendant’s letter as follows:

“Grand Rapids, Mich., January 29, 1918.
“Mr. Jacob C. Rapaport,
“222 Monroe Avenue,
“City.
“My Dear Sir: Mr. Wilbur E. Lawrence lias handed me your letter of January 26, covering some personal difficulties that you have had with him. Whatever these difficulties may have been they are not such as would violate the lease on your part or his, which you now have of these premises until February, 1920.
“Mr. Lawrence informs me that he has not desired you to throw up your lease and that he has accommodated you with storage room on the third.floor of his building for which up to the present time, he has charged you no rent and yet of course this is of value to you. If, however, any financial difficulty should arise between you this storage would have to be paid for at its value.
“As I said before nothing has occurred by which you have been released from your written lease covering the premises in question which your attorney will inform you if you will consult him.
“His verbal statement to you was to vacate the third floor for which you had not paid any rent and not the premises for which you have paid rent and for which you have a lease. I am giving you this information in order that you may know what Mr. Lawrence’s position in the matter is and that you may also determine the extent of your liability in case you vacate these premises without his having released you from your written obligation.
“Mr. Lawrence desires, in order to avoid any further trouble, that you pay the rent at this office and send check for same payable to him or to myself on the first day of each month in accordance with the terms of the lease.
“Yours truly,
“S. Wesselius,
“Attorney.”

To constitute a demand for possession during the term an eviction, the tenant must comply with the demand while it exists and vacate the premises under a standing order to do so, and he cannot justify under an order countermanded before he surrenders possession. A demand made by the lessor and acceded to by the lessee in vacating the premises terminates the contractual relations of landlord and tenant. There must, however, be an actual and unconditional surrender of the premises and consummated while the demand remains in force, or such change in circumstances occasioned the tenant by reason of the demand and arrangements made by him in accordance with the demand as would render it unjust to permit a countermand. Acquiescence, however, on the part of the tenant, even though expressed, will not be enough to remove the matter from the statute of frauds. If demand to vacate is made and assented to but no removal accomplished the lease continues unimpaired. The charge of the court left the jury to find an eviction by reason of what occurred on January 26th. Mere words, no matter how offensive, and unwarranted demands cannot constitute an eviction, because the interference with the beneficial enjoyment of the premises must be something of a more permanent nature than a personal altercation between landlord and tenant or the malting of a demand that the tenant is not obliged to accede to. The court very properly charged the jury that there was no surrender arising out of the claimed demand for possession and took the question of surrender out of the ease on the ground that there was no acceptance thereof. A demand by the landlord for surrender of the premises before the end of the term, requiring surrender in fact to release the tenant, cannot in law constitute an eviction; and it is not an eviction even though the tenant vacates in response to the demand, but no more than a voluntary surrender. Boyd v. Gore, 143 Wis. 531 (128 N. W. 68, 21 Ann. Cas. 1263).

The court was in error in permitting the jury to treat the demand for possession accompanied by abusive language as an eviction. For this error the judgment is set aside and a new trial granted, with costs to appellant.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: WIEST, J.

text:
    HATFIELD v. HATFIELD.
    1. Divorce — Equity—Clean Hands.
    Where, in divorce proceedings instituted by the wife, it appears that she does not come into court with clean hands, but is guilty of the same misconduct with which she charges defendant, the decree of the court below dismissing the bill will be affirmed.
    2. Same — Public Policy.
    Divorce is not justified on the ground of public policy.
    Appeal from Kalamazoo; Weimer (George V.), J.
    Submitted January 14, 1921.
    (Docket No. 51.)
    Decided March 30, 1921.
    Bill by Bertha M. Hatfield against George B. Hatfield for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Alfred S. Frost, for plaintiff.

      John W. Adams, for defendant.
   WIEST, J.

Plaintiff filed a bill for divorce in the Kalamazoo circuit court charging defendant with extreme cruelty, consisting of personal violence, abusive conduct, foul language and indecent actions. Defendant denied the charges. The learned circuit judge after a full hearing found plaintiff guilty of the same misconduct she had charged against defendant and dismissed the bill. The case is brought here on appeal by plaintiff.

We have considered the case de novo and we are led to the conclusion reached by the circuit judge. A discussion of the testimony would be of benefit to no one. Counsel for plaintiff urges that:

“The testimony in this case fully establishes the fact that these parties can never again live together as husband and wife, and, while it is true that formerly this court has held that one seeking the aid of a court in chancery must come with clean hands, and, if not, the court will decline to act, leaving the parties where it finds them; that rule, as applied to divorce, means that it is a remedy only for the innocent and injured party, and if the evidence discloses that both have shown ground for divorce, neither is entitled to it. This rule of law has been modified by the courts to some extent. On the ground of public policy, or the peculiar exigencies of the special case under consideration, the rule of comparative rectitude or turpitude has been adopted; and where the court is fully satisfied that, on account of differences between the parties, the home has been completely destroyed, and where there is no hope of any reconciliation between the parties, a decree will be granted, if the testimony shows such acts upon the part of the defendant as would justify the plaintiff in obtaining a dissolution of their marriage.”

In support of this counsel cites Weiss v. Weiss, 174 Mich. 431, and asks us. to hold that, if both parties are more or less to blame for their domestic unhappiness the court should take into consideration what is for the best interests, not only of the parties themselves, but of the children. Neither party appears "to be possessed of much refinement. The decision in Weiss v. Weiss seems to be misapprehended by counsel. In that case neither party appealed from the decree granting a divorce, and this court, while re-aflirming the rule that a party asking relief must come into court with clean hands, did no more than to make .observation of a growing tendency to relax the rule, but in no way approved of the same.

In the later case of Cowdrey v. Cowdrey, 211 Mich. 305, we held that a divorce is not justified on the ground of public policy. The governing rule is stated in Kellogg v. Kellogg, 171 Mich. 518.

The decree of the circuit court is affirmed, but without costs.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    WOODWORK v. WOODWORK.
    1. Divorce — Cross-Bill—Evidence—Sueeiciency.
    On appeal by defendant wife from a decree granting plaintiff husband a divorce, the finding of the court below that plaintiff was entitled to a divorce, and that thei allegations in defendant’s cross-bill were not sustained by the testimony offered by her, held, justified by the record.
    2. Same — Alimony—Stjeeicienoy.
    The decree awarding plaintiff $1,400 as permanent alimony is affirmed, but modified as to time of payment; the total balance unpaid to be paid within 90 days of date of decree in this court.

      Appeal from Muskegon; Vanderwerp (John), J.
    Submitted January 6, 1921.
    (Docket No. 70.)
    Decided March 30, 1921.
    Bill by Fred Woodwork against May Woodwork for a divorce. Defendant filed a cross-bill asking for a divorce. From a decree for plaintiff, defendant appeals.
    Modified and affirmed.

      Frank I. Blake, for plaintiff.

      John M. Dunham, for defendant.
   Wiest, J.

The parties to this cause were married in 1899 and lived together as husband and wife until 1919. September 3, 1919, the husband filed the bill of complaint herein for divorce on the grounds of extreme cruelty. Defendant answered and by cross-bill asked for a divorce on the grounds of the extreme cruelty of plaintiff and prayed for alimony. No children were bom of the marriage. The case was heard in open court and a decree of divorce granted plaintiff, and defendant was awarded $1,400 as permanent alimony.

From the decree so entered defendant has appealed, claiming the decree should have been granted on her cross-bill, and that the alimony is wholly inadequate considering the property owned by plaintiff and his ability to earn money. After a careful perusal of the record we are of the opinion that the court below was right in granting the divorce upon the charges made in plaintiff’s bill, and that the evidence offered by defendant in support of her cross-bill is not very , persuasive, and that, as found by the learned circuit judge:

“The charges made by the defendant against said plaintiff are not true, and are not sustained by the testimony offered by said defendant.”

The parties hold by the entireties a 40-acre farm worth, about $5,000, subject, however, to an incumbrance of $2,900, drawing interest at the rate of 7 per cent., and plaintiff owns another parcel of sandy, unimproved land worth about $1,000, and an interest in a land contract which it is estimated will be of the value of $685 some years hence if the contract and obligation ahead of it on the same property are taken care of.

Considering the receipts of money by the plaintiff after separation, and the payment of obligations by him, and having in mind the personal property on hand and the indebtedness he must meet, including interest and taxes, besides paying the defendant the amount awarded, we are of the opinion that the amount granted defendant as permanent alimony ought not to be disturbed, except in regard to the time of its payment. We think, the amount awarded should be paid in one sum so the defendant can avail herself of its use, and the decree of the court below will be modified so as to provide that plaintiff pay the $1,400 permanent alimony, or so much thereof as now remains unpaid, within 90 days from the date of the decree in this court. In all other respects the decree below is affirmed, and appellant having been allowed the sum of $200 for expenses and attorney fee by this court on July 20, 1920, no further costs are allowed.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    JACOB v. CUMMINGS.
    1. Contracts — Frauds, Statute of — Modification of Written Contract.
    A contract in writing may be modified after its execution by parol agreement and strict performance thereunder waived or abrogated by the parties.
    2. Same — Modification of Written Contract — Consideration.
    That the parties to a written contract considered it to their advantage to depart from a strict performance thereof would constitute a sufficient consideration for the modification.
    3. Evidence — Parol Testimony — Modification of Written Con- • tract.
    Evidence of a parol agreement to waive rights or remedies provided in a written contract is admissible, not being in violation of the rule against the admission of evidence to alter, vary, or contradict a written agreement.
    4. Contracts — Acts of Parties — Intent.
    A departure from stipulated performance of a written contract may he predicated upon acts as well as upon an express agreement to that effect.
    5. Same — Strict Performance of Contract — Waiver.
    Where plaintiff, knowing that defendant had not abandoned his intention of exercising his rights in an option for the purchase of certain leasehold property, four days before the expiration of said option, co-operated with defendant in making an unsuccessful attempt to renew it, he must be held to have waived his right to insist on. the strict performance of an agreement by defendant to notify plaintiff 15 days before the expiration of the option if he did not intend to organize a corporation to take over said property and give to plaintiff $25,000 worth of the stock, or, in case of sale of the premises, to pay him $25,000 in cash.
    6. Same — Breach of Contract — Damages — Evidence — Sufficiency.
    Where no sale of the premises was made entitling plaintiff to the $25,000, and no evidence was introduced as to what stock of said corporation would have been worth had it been formed and plaintiff received same, the court below properly held, that, having failed to show any damages, plaintiff was not entitled to any.
    7. Appeal and Error — Equity Case Disposed oe on Record Presented.
    Plaintiff, in filing a bill for an accounting and for a personal decree, having selected the equity side of the court, and having brought the case to this court on appeal to be heard de novo on the record made in the court below, is not entitled to a rehearing to supply proof of damages which he failed to introduce on the hearing, and final decree will be entered in this court on the record here presented.
    Appeal from Wayne; Codd (George P.), J.
    Submitted January 18, 1921.
    (Docket No. 22.)
    Decided March 30, 1921.
    Bill by Ben. B. Jacob against George H. Cummings for an accounting on the terms of certain option contracts, and for a personal decree for breach thereof. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Wilkinson & Hinkley, for plaintiff.

      Paul Oren (Harrison Geer, of counsel), for defendant.
   Wiest, J.

The plaintiff, a real estate broker, having learned that Peter Smith & Sons, a corporation, was considering the sale of the leasehold interest and building owned by it at the corner of Griswold and State streets in Detroit, and being advised by Mr. Talbot, secretary of the company, that the same might be purchased for $325,000, provided some representative man was interested, and being told that it would not be sold, to Mm as he would want it for speculative purposes, went to Alfred M. Low and requested him to obtain an option on the premises. Mr. Low, not wishing to invest any money in purchasing the option, consented to accept an option in his name if plaintiff would procure the money necessary to secure it, and agreed he would assign the option to a suitable person upon receiving compensation for his services. The plaintiff heard that defendant was looking at the property with a view of purchasing and went, to see him to find if he would be interested in paying Mr. Low the consideration necessary to obtain the option, and take an assignment thereof. After conferences, defendant gave plaintiff a check for $5,000, payable to Mr. Low, for the purpose of securing the option. The plaintiff delivered the check to Mr. Low, and upon consultation with Mr. Talbot it was agreed that an option should be given Mr. Low, and the check was indorsed by Mr. Low and a 90-day option given him on March 9, 1916, and by him assigned to defendant, and thereupon defendant signed the following agreement:

“Mr. Ben B. Jacob,
“Detroit, Michigan.
“Dear Sir: Whereas, you have this day secured for me an assignment of a certain option to purchase the leasehold and building known as the Peter Smith & Sons building, located at the southwest corner of Gris-wold and State streets, in the city of Detroit, Michigan, which assignment is made direct from Alfred M. Low to me, but wMch was obtained and secured by you from the said Alfred M. Low, the assignment running direct from him to me, I herewith agree to pay you as a further consideration for said assignment and for your services, the sum of twenty-five thousand ($25,000.00) dollars unless (a) I shall sell said building for a sum in excess of four hundred thousand ($400,000.00) dollars before the time of the expiration of said option, in which event I shall pay you not only said twenty-five thousand ($25,000.00) dollars, but also twenty-five per cent. (25%) of the excess over and above four hundred thousand ($400,-000.00) dollars for which I shall sell said building and leasehold; or (5) unless on or before fifteen (15) days before said option expires, I notify you in writing of nay intention not to exercise said option, and I do agree, in that event, to reassign said option to you any time within the fifteen (15) days prior to the expiration of said option, upon your paying me the sum of five thousand ($5,000.00) dollars, the same being the amount heretofore paid for said option and to apply on the purchase price, in the event the option is exercised.
“In the event of neither A or B happening, I shall remain liable for said twenty-five thousand ($25,-000.00) dollars and the same shall be payable as follows:
“If the leasehold and building is sold by me on or before the date of the expiration of said option, said twenty-five thousand ($25,000.00) dollars shall be payable forthwith in cash, but if the building is not so sold, I agree to form a corporation before the expiration of said option, which corporation shall have a capital of one hundred and six thousand ($106,-000.00) dollars, representing the eighty-one thousand ($81,000.00) dollars I have paid for said leasehold and building subject to a mortgage on same, less the six thousand ($6,000.00) dollars to be used to retire the past due bonds on same, and plus the twenty-five thousand ($25,000.00) dollars I am indebted to you for on account of your services and as a further consideration for securing said option. Said one hundred and six thousand ($106,000.00) dollars shall be the total capital stock of said corporation and twenty-five thousand ($25,000.00) dollars of said stock, I agree to deliver to you in payment of the twenty-five thousand ($25,000.00) dollars hereinbefore set forth and due you.
“In witness whereof, I have hereunto set my signature this tenth day of March, in the year one thousand nine hundred and sixteen.
(Signed) “George H. Cummings.”

As the time of the expiration of the option drew near, defendant talked matters over with plaintiff and stated that an extension of time would be necessary, and four days before the expiration of the option he gave plaintiff his check for $5,000 with which to procure a renewal, and two days later was informed by plaintiff that no renewal could be obtained and the check was returned. Thereupon defendant himself secured an extension of the option by paying $5,000, but at the price of $345,000. Not being able to dispose of the property, defendant from time to time got other options, paying for options and taxes the sum of $28,442.85, and finally was unable to perform and lost all he had paid.

The last option was in April, 1918. The bill herein was filed June 13, 1916, and prayed, among other things, for an accounting relative to defendant’s exercise of rights under the first and second options and for a personal decree. The circuit judge held that the agreement was so modified and abandoned by the parties that plaintiff could not recover under the agreement, and no damages being shown, none could be recovered. It appears that the building was not sold 'before the expiration of the option, so that part of the agreement, providing for the payment of $25,000 and 25 per cent, of the excess over and above $400,000, is out of the case.

Plaintiff at the hearing planted his right to recover a money decree upon the failure of defendant to notify him of an intention not to exercise the option. It is clear that defendant did not form the intention not to exercise the option and this was well known to plaintiff, and with such knowledge plaintiff tried to have the option extended but failed and defendant obtained a new option at an increased price. If defendant did not sell the building for a sum in excess of $400,000 before the time of the expiration of the option, or, if he intended to exercise the option, then he was to pay $25,000 in cash if he sold the leasehold and building before the date of the expiration of the option, and if he did not so sell, he agreed to form a corporation before the expiration of the option' and deliver $25,000 of the stock thereof to plaintiff. He did not sell, neither did he form a corporation, but secured other options at higher prices, paid money to obtain the same and finally lost all his option rights and the money he had paid. Plaintiff now asks that defendant be held to pay him $25,000 for failure to notify him that he did not intend to exercise the first option regardless of the fact that he did intend toi exercise it if he could get an extension, and regardless of the subsequent acts performed by plaintiff showing a departure from strict performance of the agreement and a hope' of being able to assist the defendant in saving the property and permit an exercise of the option regardless of the agreement. Plaintiff had a right to rest upon the agreement, or modify the same, or waive its terms.

The written agreement, after it was signed by the defendant, could be modified, and strict performance thereunder waived or abrogated by the parties, without violating the rule against the admission of evidence to alter, vary or contradict a written agreement. The rule relates to an attack upon the writing itself, and has no reference to the right of the parties to change the method or manner of performance, or waive rights or remedies thereunder by parol. Grand Traverse Fruit, etc., Exchange v. Canning Co., 200 Mich. 95; 17 Cyc. p. 734; Town v. Jepson, 133 Mich. 673; Wolff v. National Bank, 131 Mich. 634; Mouat v. Bamlet, 123 Mich. 345. If the parties considered it to their advantage to depart from strict performance of the agreement, that would constitute a sufficient consideration.

A departure from stipulated performance can be predicated upon acts as well as upon an express agreement to that effect. When plaintiff took the $5,000, furnished him by defendant for the purpose of trying to procure an extension of the option, he knew that defendant had not notified him of an intention not to exercise the option and that it was defendant’s intention to exercise the option, and therefore the liability of defendant did not, under the agreement, become fixed at $25,000 to be paid in money but only to be paid in cash if the leasehold was sold before the expiration of the option, and if not so sold then a corporation to be formed before the expiration of the option, and $25,000 of its stock delivered to plaintiff. Under this agreement, strictly construed, everything was to be done during the life of the option and plaintiff now insists upon such strict construction in the face of the fact that he endeavored to have the option time extended. Plaintiff by his acts has waived strict performance. But, if granted strict performance, what is the measure of his damages? Not necessarily $25,000 because in the last analysis he was to have stock in a corporation to be formed and plaintiff himself testified that he did not believe the agreement represented cash. The corporation not having been formed before the expiration of the option mentioned in the agreement, if it be considered that this was a breach of the agreement, then we find plaintiff deprived of stock in a corporation not formed, and are we then to go back and assess the damages upon the undertaking to pay $25,000 and ignore the stipulations of the contract with reference to the method and manner of payment? Leaving out of the case the questions of waiver and modification of the agreement, as claimed by the defendant, and considering only the terms of the agreement and what was actually done by défendani, we come to the fact that defendant did not organize a corporation as he had agreed and plaintiff, therefore, has not received stock therein. What would such stock have been worth? The evidence does not even touch upon that question. Not having shown any damages, under the agreement, the court was right in giving him none. We are also of the opinion that the court was right in holding that there was such modification of and waiver of the provisions of the agreement by defendant, evidenced by his acts and fully shown in the record, as to preclude him from asking that the part of the agreement he relies upon be. taken as decisive of his right to recover.

In their brief, counsel for plaintiff ask that, if this court finds that damages have'' not been proven, due to the fact that payment was to be made in shares of a certain corporation to be formed by defendant, that the case be remanded for a rehearing in order to permit the introduction of such proof. The plaintiff having selected the equity side of the court, and bringing the case here on appeal to be heard de novo on the record made in the circuit, we must decide the case as presented and enter final decree.

The circuit judge reached the right conclusion and the decree entered is affirmed, with costs to defendant.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    HALLET & DAVIS PIANO CO. v. DROSTE.
    1. Evidence — Common Law — Public Documents — Certificate of Custodian.
    At common law a custodian of documents lacked authority to certify that specific documents did not exist in his office.
    2. Same — Uncertified Letted — Admissibility.
    A letter from the secretary of State to defendant’s. attorney stating that there was no record in his office of plaintiff, a foreign corporation, haying been admitted to do business in Michigan, was properly excluded, not being certified as required by 3 Comp. Laws 1915, § 12510.
    3. Corporations — Foreign Corporations — Right to Maintain Replevin.
    It is no defense to an action of replevin to show that plaintiff is a foreign corporation doing business within the State without a certificate of authority as required by 2 Comp. Laws 1915, § 9063 et seq.

    4. New Trial — Proofs—Failure of Admission — Surprise.
    In the absence of an agreement, it is no ground for a new trial for counsel to rely upon a hoped-for admission of opposing counsel, and, when such hope is not realized, to fail in his proof and claim surprise.
    Case-made from Wayne; Dingeman (Harry J.), J.
    Submitted January 4, 1921.
    (Docket No. 27.)
    Decided March 30, 1921.
    Replevin by the Hallet & Davis Piano Company against William A. Droste for the possession of a piano. Judgment for plaintiff on a directed verdict. Defendant appeals.
    Affirmed,

      Frank E. Whipple, for appellant.

      Frank Lawhead, for appellee.
   Wiest, J.

This is an action of replevin, brought by plaintiff as assignee of George Woodruff, to recover possession of a piano purchased by defendant from Mr. Woodruff, to be paid for in installments under a title retaining contract, and upon which the total purchase price had become due and in default. The defendant gave notice under the plea of the general issue that the plaintiff, a foreign corporation, had not obtained a certificate of authority to carry on its business in this State as required by 2 Comp. Laws 1915, § 9063 et seq. Plaintiff denied carrying on its business in this State without authority. At the trial the defendant, to support his plea and notice, offered in evidence a carbon copy of a letter written by his attorney to the secretary of State and a letter purporting to be a reply thereto from the office of the secretary of State written by an assistant, and reading as follows:

“State op Michigan
(Printed Seal),
“Coleman C. Vaughan, Prank D. Fitzgerald,
“Secretary of State. Deputy Secretary.
“Department op State,
“Lansing, June 12, 1919.
“Mr. Frank E. Whipple,
“311 Majestic Bldg.,
“Detroit, Mich.
“Dear Sir: — In reply to your inquiry of June 9th, we beg to advise that we have no record of the Hallet and Davis Piano Company, a foreign corporation, having been admitted to do business in Michigan.
“Respectfully,
“Coleman C. Vaughan,
“Secretary of State.”

Upon objection to such letter the court excluded it. Defendant offering no further proof, verdict was directed in favor of the plaintiff. The defendant thereupon moved for a new trial on the grounds that the eourt erred in excluding the letter and that counsel for defendant was taken by surprise when counsel for plaintiff did not admit that plaintiff had not obtained a certificate of authority. The court denied the motion. In this court defendant assigns error upon the refusal of the trial court to admit the letter in evidence and in not permitting the jury to pass upon the truth or falsity of the letter and in not granting a new trial on the ground of surprise. The authenticity of the letter from the office of the secretary of State may be admitted; the letter itself, however, was clearly inadmissible as evidence of the statements therein made. At common law a custodian of documents lacked authority to certify that specific documents did not exist in his office. 3 Wigmore on Evidence, § 1678. This rule of exclusion and the necessity of calling the custodian as a witness evidently gave rise to the statute, 3 Comp. Laws 1915, § 12510, which provides:

“Whenever any officer to whom the legal custody of any paper, document or record shall belong, shall Certify that he has made diligent examination in his office for such paper, document or record, and that it cannot be found, such certificate shall be presumptive evidence of the facts so certified, in all causes, matters and proceedings in the same manner and with a like effect as if such officer had personally testified to the same in the court, or before the officer before whom such cause, matter or proceeding may be pending.”

The trial court was right in excluding the letter. The case was tried in the circuit court before the opinion of this court was rendered in Rex Beach Pictures Co. v. Garson Productions, 209 Mich. 692, in which we held that it is no defense to an action of replevin to show that plaintiff is a foreign corporation doing business within the State without having received authority to do so. The excluded evidence, therefore, would have availed appellant nothing.

In the absence of an agreement, it is no ground for a new trial for counsel to rely upon a hoped-for admission of opposing counsel, and when such hope is not realized to fail in his proof and claim surprise.

We find no error in the record and the judgment is affirmed, with costs to appellee.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


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    GILL v. GILL.
    Divorce — Extreme Cruelty — Equity—Clean Hands.
    On a bill for divorce filed by the husband on the ground of extreme cruelty, in that defendant indulged in intoxicating liquor to the great mortification and humiliation of plaintiff, evidence that plaintiff knew of defendant’s habits before he married her, and that he was addicted to the same habits both before and after marriage, held, to require dismissal of the bill, since he does not come into court , with clean hands and his case is not one that appeals to the conscience of the court.
    Appeal from Genesee; Black (Edward D.), J.
    Submitted January 12, 1921.
    (Docket No. 102.)
    Decided March 30, 1921.
    Bill by Albert G. Gill against Georgianna Gill for a divorce. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      Carton, Roberts & Stewart, for plaintiff.

      Brownell, McBride & Gault, for defendant.
   Wiest, J.

The plaintiff filed the bill for divorce herein charging extreme cruelty on the part of defendant, in that she indulged in intoxicating liquor to the great mortification and humiliation of plaintiff after he had admonished her against the same, and the unpleasant reputation arising therefrom and the degrading social standing to which it would relegate them; and that her indulgence in liquors brought to their home women of similar tastes and inclinations with quantities of liquor and thus obscured the “finer qualities of womanhood which make the home and its environment a shelter for virtue and the principles of good citizenship.” Plaintiff charged in the bill that this indulgence continued until it became unbearable for him to longer remain with his wife.

Defendant appeared and by answer denied the charges and alleged that plaintiff had been addicted to the excessive use of intoxicating liquors for some time prior to his marriage to the defendant, and during the time he lived with her he was frequently intoxicated, and while in that condition left defendant's home, not informing defendant where he was going, or what his. intentions were.

Defendant further claims that she did not hear from her husband until some time in October, 1916, when he came to her apartment in the city of Pittsburgh, Pennsylvania, in a drunken condition and attempted to gain admittance, but by reason of his condition, defendant refused to admit him, and called one Dr. James I. Johnston, who was a brother-in-law of plaintiff, who had him committed to the Mercy hospital in the city of Pittsburgh for a period of two weeks to undergo treatment; that at the end of two weeks arrangements were made whereby plaintiff was sent to a sanitarium at Warren, Pennsylvania, to be treated as an alcoholic patient under Dr. Mitchell and he remained there for a period of about six months; that after plaintiff was discharged from that institution he disappeared and defendant did not hear from him, or receive anything from him by way of support, until he was brought back to the city of Pittsburgh, where an order was made by the county court of Allegheny county for her support and maintenance.

Defendant also denied that since their said marriage she has been guilty of extreme cruelty, and denied that while she and her husband were living together she indulged in intoxicating liquor to the great mortification and humiliation of her husband, but on the contrary averred that her husband did at all times while they were living together indulge in intoxicating liquor to her great mortification and humiliation.

At the time the bill was filed plaintiff was 40 years of age. The parties were married in 1916 at Youngstown, Ohio, and lived together about three weeks. Both had had previous matrimonial experiences, and had been divorced from their former mates.

The case was heard in open court and both parties and their witnesses gave testimony. At the conclusion of the proofs the learned circuit judge granted a divorce as prayed for by plaintiff, and the case is brought here on appeal by defendant.

The parties first met in 1910 in a sporting house in Pittsburgh and before the plaintiff was divorced by his first wife. The acquaintance there formed was kept up until they were married on August 24, 1916. Being residents of Pittsburgh they had to make a false representation to obtain a license to marry in Ohio. He claims the marriage was an incident of a drunken carousal by himself and defendant. This she denies, tie admits that he knew her reputation and claims that she was his companion before marriage only when he was drunk.

Previous to the marriage he had been much addicted to the drink habit and kept it up after marriage. After marriage he claims that he realized the position he had placed himself in by marrying such a woman and found it unbearable. He knew she drank before the marriage and testified that he would not say that she drank' any more or less after the marriage than she did before.

About three weeks after they, were married he went to Philadelphia and shortly thereafter returned to Pittsburgh, and called up his wife and asked her to meet him at the hotel, and while she was on her way to the hotel he went to their home and took poison, intending to kill himself, and then called a doctor and was sent to Mercy hospital, where he remained about two weeks, and from there he went to Warren, Pennsylvania, as a patient in the hospital there, as he says to get away from and be cured of -the drink habit. He-was at the Warren State hospital about six months, leaving there in April, 1917, and went to Flint, Michigan, without letting his wife know where he was, and in April, 1918, he entered the military service at Flint as a single man and went to France, where he saw no action, and was discharged from the service in February, 1919.

While in the hospital at Warren he wrote his wife frequent and endearing letters, wholly inconsistent with his charges now made for divorce, and he gives the heartless excuse that he wrote the letters because he had to do something, and while he wrote them he did not intend to go back and live with her, and says that when he stated in the letters that he intended to go back to her again-and live with her he no doubt wrote foolish things under the lonesomeness there.

When he left the hospital he kept his whereabouts a secret from his wife, and never supported her after the marriage, except for the short time they lived together.

While in Flint he was arrested for wife desertion and nonsupport and taken back to Pittsburgh, where he pleaded guilty to the charges, and was made to pay her a monthly amount.

He says when he went to the hospital he had somé affection for the woman, but it was the result of a carousal and not the result of deliberate action on his part. He testified:

“While I was in the hospital, I had an opportunity to begin to find myself and think clearly which I had not done before, but still I left home because of the unbearable surroundings and extreme cruelty; because of the condition that was there. I don’t know how many times liquor was brought into the house during the three weeks we lived together. I cannot say that it was more than twice. I did see some one drinking in the house during the three weeks. I saw quite a few of them. I was drunk during these three weeks. Possibly more than once under the influence of liquor. 1 do not think I was as much to blame for the liquor being in the house as was my wife.”

The evidence clearly shows that he brought liquor to the house.

While at the State hospital he wrote his wife on October 22, 1916, as follows:

“I am inclosing the church check properly indorsed and only wish I could add two 00 to the 15 so that neither you nor I need worry until I am on my feet again. However, I can’t do that and I am trying not to worry and your brave words of hope and encouragement help me a lot.
“The way may look dark and rough, now, George, but I am satisfied that something better is to come out of this trouble or I could not and would not stay here for a day. Just keep up your courage, old lady, and help me to keep mine.
“I sang a little this afternoon and among the songs Mrs. Avery — the nurse on this ward — had was ‘Memories.’ I tried to sing it but memories of happy hours crowded so strongly over me that it was all I could do to get through. I can see the apartment this minute, you sitting on the end of the couch with your feet tucked under you — and can hear the Victrola— and oh, I wish I were there with you.”

On November 9th he wrote:

“I wish I could be in Pgh. this Saturday- so that you and I might take in the WJ-Pitt game. Last year I saw it and for the first time in as long as I can remember, I was absolutely sober. I feel now that I am sober for all time; not only sober, but altogether through with drink for all time. * * *
“I certainly have been wishing for you lately. * * *
“Wish I could tuck myself into this letter and pop out when you open it, but if I could have a wish, gratified it would be to be with you at this minute instead of so many miles away.”

Some little time after he entered the hospital he wrote his wife as follows:

“Dear Old Girl:
“I did not think I would write you tonight but I can’t turn in without a final word with you.
“Already I feel lonesome — have since the moment I stepped off the train and I am going to miss you more than a little bit, dear girl of mine. I can’t tell you in words how I appreciate your Xmas gift to me — your coming here and making the forty-eight hours just passed such happy ones. Glad you came? Yes, glad beyond words and our visit together has done much to put heart into me for the fight we shall wage in the future for success and happiness. I feel tonight as never before that we shall win both, and even though we do not startle the world financially, yet I am sure that we shall attain true success which to me does not consist in accumulation of vast wealth, but of living honorably and honestly with all the necessities and some of the luxuries of life together with contentment, which of necessity includes happiness.
“I have made many mistakes in the past and many failures but, as I told you today, I now feel as. though those evil days are gone forever and that the future holds much which can and will be taken and kept.
“I wish you could look into my mind and heart and there read what I feel as I think of what you are doing and propose to continue doing in order that we may be together. You make me feel very small, George, and as you said I’m afraid I am very foolish. I know I have been in the past but from now on I shall try to bury self.”

Later he wrote his wife:

“I thought I had made my position clear in my last letter and I really do not know what I can add to it, but I shall try in as few words as possible to outline it. It is simply this, that I feel that it is impossible for us to live together and be happy and that it would be folly to do so unless there was a reasonable chance for happiness and reciprocated affection. The months I have spent here away from you have proven to me beyond a doubt that such a condition is impossible.
“When you say someone has come between us you are partly right, but not in the way you think. It would be more correct to say that you came between me and another, and even though because of this I can never hope for that which I once planned, yet always will that stand as a barrier between us. That is what I meant when I said you can never hold a wife’s true place in my thoughts and affections. I have made no accusations to or about you and have no thought of so doing. As I said to you before I blame myself as much and more than I do you and if as a result of our mistake you shall be unhappy I am even more so, and ask you to try to forgive me.”

At the time he wrote the endearing letters to his wife he then knew all he now asserts as grounds for a divorce, and he cavalierly dismisses his letters as foolish things actuated by lonesomeness.

The plaintiff admits that he met the woman he married in a sporting house, knew her habits were like his own; that following the marriage he got drunk and was so addicted to the habit of getting intoxicated that he tried to kill himself; that three weeks after marriage he had to enter an institution as an inebriate; that he deserted his wife, was arrested therefor and pleaded guilty, and now he asks that we hold it grounds for divorce because Ms wife let liquor obscure the “finer qualities of womanhood which make the home and its environment, a shelter for virtue and the principles of good citizenship,” and because her indulgence in intoxicating liquor while they lived together caused him great mortification and humiliation and made it unbearable for him to live with her.

We havQ passed by her denial of his charges feeling that under the testimony of the plaintiff himself he has not come into court with clean hands. There is nothing in his case appealing to the conscience of the court and the decree entered below is reversed and the bill dismissed, with costs of both courts to appellant.

Steere, C. J,, and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    UNDERWOOD v. SLAGHT.
    1. Landlord and Tenant — Summary Proceedings — Plea oe Title —Jurisdiction oe Commissioner.
    In summary proceedings before a circuit court commissioner to recover possession of certain premises, tbe mere plea of an equitable title by defendant under a land contract did not oust tbe commissioner of jurisdiction if defendant’s rights under bis land contract bad been surrendered, and be was in fact a tenant.
    2. Frauds, Statute oe — Vendor and Purchaser — Parol Agreement to Surrender Followed by Acts.
    A parol agreement by a vendee, in default on bis contract of purchase, to surrender the premises and rent them of vendors, followed by the actual payment of rent as a tenant, held, a sufficient surrender of the contract by operation of law, expressly excepted from the provisions of the statute of frauds (3 Comp. Laws 1915, § 11975) requiring such agreements to be in writing.
    3, Arpear and Error — Evidence—Harmless Error.
    In summary proceedings to recover possession of certain premises, where defendant had surrendered his rights under his contract of purchase, and was holding the premises as a tenant, any error in the admission of testimony that prospective purchasers were shown the premises in defendant’s absence was harmless.
    Error to Bay; Houghton (Samuel G.), J.
    Submitted January 5, 1921.
    (Docket No. 33.)
    Decided March 30, 1921.
    Summary proceedings by Henry Underwood and another against William A. Slaght for the possession of leased premises. There was. judgment of ouster before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Kinnane, Black & Leibrand, for appellant.

      Gilbert )W. Hand, for appellee.
   Wiest, J.

Plaintiffs commenced this suit by summary proceedings before a circuit court commissioner to recover possession of certain premises sold by them to defendant on a land contract in 1914, and planted their right to recover upon the claimed fact that defendant, being in default upon the land contract, agreed in 1918 to give up his holding and rights thereunder and become a tenant of the premises and pay rent by the month, and that such agreement was executed by the payment and receipt of rent, and the tenancy terminated by notice to quit. Defendant gave notice before the commissioner of possession under the land contract and of claim of title thereunder, and that he was not a tenant, and asked that the case be certified to the circuit court for trial of title. The commissioner declined to certify the case to the circuit and upon the hearing found that no title adverse to plaintiffs existed in defendant and that defendant was a tenant holding over after notice to quit and ordered restitution of the premises to plaintiffs. At the trial in the circuit court the jury, under the issues submitted, found that the defendant surrendered the land contract and became a tenant, and judgment was entered in favor of plaintiffs.

The case comes here upon writ of error and the questions presented are:

(1) The jurisdiction! of the circuit court upon appeal under the claim of title raised before the commissioner?

(2) Whether the equitable title of defendant under land contract can be cut off by an executed parol agreement to take and hold as a tenant?

(3) Whether certain testimony was admissible?

Plaintiffs claim that defendant was in default in his payments under the land contract, and agreed to pay rent for the premises at $13 per month and did so pay, as the receipts in his own handwriting show.

Defendant claims that he agreed to pay $13 per month, and when he sent the first payment to plaintiffs a receipt came back from them, stating it was for rent, and he returned the receipt and it was changed to apply on the land contract; that later he went to see plaintiffs and they wanted the receipts to show that the money was paid for rent, and that he said to them:

“Suppose I take these receipts to apply as rent, Can I at any time pay up the arrears on that contract if it’s absolutely necessary that you have got to have the money? And it was agreed by Mr. and Mrs. Underwood right there that I should have the right to pay up the arrears at any time, if not, I would not accept that receipt as rent.”

The first receipt after the claimed agreement to pay rent reads:

“Bay City, Nov. 19, 1918.
“Received of Wm. Slaght, seventy-six dollars rent for 707 Blend street, to February 1st, 1919.
.“Henry Underwood.”

Other receipts for rent up to March 1, 1920, follow.

Defendant admitted that all of the receipts reading for rent, except one, are in his handwriting. The court under proper instruction left it to the jury to say whether the agreement to terminate the land contract and to hold as a tenant was made and carried out.

The mere plea of title did not oust the commissioner of jurisdiction. Butler v. Bertrand, 97 Mich. 59. If defendant was a tenant the commissioner had jurisdiction.

The decision here turns upon the legal question of whether one in possession under land contract, and who gives up the contract rights, and takes and holds the premises as a tenant under verbal agreement- to pay rent, and does pay rent, surrenders the land contract.

Defendant contends that the statute of frauds, 3 Comp. Laws 1915, § 11975, makes such an agreement void. The statute provides:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.”

It will be noted that this statute saves from its terms surrenders by act or operation of law. Gates on Michigan Real Property, § 616, states:

“The interest of the purchaser under a land contract is covered and protected by the statute of frauds, and for this reason it cannot usually be terminated except by instrument and writing. Nevertheless, a contract interest may be terminated by written cancellation of the contract of sale, signed by both parties. So, too; it may be terminated by the vendee’s giving up the premises to the vendor and taking a léase of same.”

In Logan v. Anderson, 2 Doug. (Mich.) 101; it was held that taking a new lease by parol is, by operation of law, a surrender of the old one. In Miner v. Boynton, 129 Mich. 584 (quoting from the syllabus), it was held:

“A vendee in a land contract, who, having failed to comply with its terms, and having been served with notice to vacate, leases the premises from the vendor, thereby surrenders his rights under the contract.”

Appellant contends that under the statute there can be no surrender by parol and cites McEwan v. Ortman, 34 Mich. 325; Grover v. Buck, 84 Mich. 519; Ripley v. Seligman, 88 Mich. 177; In re Reh’s Estate, 196 Mich. 210; Stewart v. McLaughlin’s Estate, 126 Mich. 3; Grunow v. Salter, 118 Mich. 148. None of those cases, of course; hold that the statute prevents a surrender by act or operation of law, and none hold that such a surrender cannot be accomplished by the vendee in a land contract, in possession, taking a lease of the premises from the vendor. The term, by act or operation of law, had a well-understood meaning at the time of the origin of the statute of frauds.

“Probably the expression referred to such surrenders as were then known and which are mentioned in Plowden, e.g., taking a new lease by lessee during the continuance of the old one, and thereby affirming that the lessor had power to make such lease.” Reed on Statute of Frauds, § 772.

A mere verbal agreement to surrender is, of course, void. But actual performance of an invalid parol agreement will always be sufficient surrender by operation of law. Reed on Statute of Frauds, § 781, and cases there cited. Parties to a land contract, when the vendee is in default, are at liberty to terminate the contract by mutual agreement and assume toward each other and the land a new or different relation, and if this is accomplished by oral agreement, followed by acts of both parties unequivocally recognizing the termination of the land contract and in recognition of and in the exercise of rights in accordance with and under the new contract, such as a holding under and in pursuance of its terms, then there is a surrender of the land contract by operation of law and the parties themselves have taken the surrender from without the statute of frauds. See Evans v. McKenna, 89 Iowa, 362 (56 N. W. 527); Bowman v. Wright, 65 Neb. 661 (91 N. W. 580, 92 N. W. 580); Eagle v. Pettus, 109 Ark. 310 (159 S. W. 1116); Moseley v. Witt, 79 S. C. 141 (60 S. E. 520); Telford v. Frost, 76 Wis. 172 (44 N.W. 835).

It must be held that, under the facts as determined by the verdict, there was a surrender of the land contract by act and operation of law, and the judgment entered was right.

At the trial testimony was admitted relative to prospective purchasers being shown the premises in the absence of defendant but in the presence of his wife. If there was error in this, it was harmless and could in no way. have prejudiced defendant upon the controlling issue left by the court to the jury.

We find no prejudicial error and the judgment is affirmed, with costs to appellees.

Steere, C. J., and Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.