text:
    SCHUTT v. BUSH. In re CLUTE.
    Attorney and Client — Contingent Fee — Settlement of Litigation by Client — Lien for Valve of Services.
    Where a case, taken by an attorney contingent upon his winning, was settled by his client without his consent while it was pending in the Supreme Court, and he was thus prevented from performing his contract in full, he was entitled to a lien upon the property involved for the value of his services actually rendered.
    On validity of provision,, in contract for contingent fee, forbidding client to settle the claim without attorney’s consent, see note in 14 L. R. A. (N. S.) 1101.
    On amount or basis of recovery by attorney who takes case on contingent fee, where client discontinues, settles or compromises, see note in 3 A. L. R. 472.
    Appeal from Newaygo; Barton (Joseph), J.
    Submitted April 20, 1920.
    (Docket No. 107.)
    Decided June 7, 1920.

      Bill by Sana Schutt against Gregg B. Bush, individually and as trustee, to determine plaintiff’s rights under the will of Charles. M. Perkins, deceased. Upon settlement of the case, William K. Clute intervened to establish a lien for services rendered. From a decree dismissing the petition, he appeals.
    Reversed, and decree entered.

      F. E. Wetmore, for plaintiff.

      William K. Clute (WyJces & Averill, of counsel), in pro. per.

   Stone, J.

This case is here upon the petition of William K. Clute, an intervening petitioner, praying for an order granting him a lien for his fees and services as an attorney, upon the proceeds of a settlement of the case of Sana Schutt v. Gregg B. Bush, trustee, et al., a chancery case originating in the circuit court for the county of Newaygo, which was settled after appeal to this, court, by the plaintiff therein, without the knowledge or consent of the petitioner, her attorney. That case involved the rights -of Miss Schutt, the plaintiff, under the will of Charles M. Perkins, deceased. In its different phases the proceedings were instituted for the purpose of recovering for her, by final decree, certain real and personal propety which had been, as was claimed by her, improperly placed in the hands and possession of the defendant Gregg B.- Bush, as trustee, by the order .of the probate court of Newaygo county — the appraised value of which property was $9,378. Claiming that she was entitled to the possession, control, and use of said property, and that she had been deprived of the same by erroneous and misleading advice and misrepresentation, she, acting under the advice of petitioner, first filed a petition in the probate court for the discharge of said trustee, and for an order that said property be delivered to her under the terms of said will. Upon the hearing of that petition, it was dismissed, and Miss Schutt, acting under the advice of petitioner, took an appeal to the circuit court. It was then determined by her and petitioner, acting as her counsel, to file a bill in equity praying for the construction of said will and the discharge of the trustee, and to consolidate the two proceedings under the provisions of the judicature act, and hear them as one suit. This was done accordingly. The proceedings were contested by the trustee and a contingent remainderman, and upon the hearing in the circuit court, in chancery, the bill of complaint and said appeal were dismissed. Thereupon, on the advice of petitioner, an appeal was taken and perfected to this court. Petitioner, acting for the plaintiff, did the work necessary to perfect such appeal, had the record printed, and prepared, and had printed, and served, an elaborate brief of 54 pages, and caused the case to be placed upon the docket of the January, 1919, term of this court for argument. Petitioner had acted as plaintiff’s counsel and had conducted the hearings in the probate and circuit courts, and had prepared the case for argument in this court.

The printed record and brief of plaintiff as appellant were on file in this court, and while so pending, without petitioner’s knowledge or approval, plaintiff and defendants settled the.case a short time before it would have been reached for argument. The stipulation signed by plaintiff and the defendants dismissed the case without costs to either party, and provided further that plaintiff should receive a deed from defendants of lots 105 and 106 of block N of the village of Hesperia, together with some personal property, all of the appraised value of $4,775, and she was to deed to defendants the remainder of the property. Originally, petitioner was engaged by Corie C. Co-burn, with the knowledge and approval of plaintiff, to assist him in conducting the litigation; but it is the claim of petitioner that just before the chancery case was to come on for hearing below, she directly engaged him to conduct the litigation in the circuit, and again later in this court. The testimony is in conflict as to the contract for fees or compensation made by plaintiff with Mr. Coburn. She claims that she never employed petitioner, but that in March, 1917, she agreed with Cobum that he would take her case on a contingent basis through the probate and circuit courts for $125, if he won it there, and through the Supreme Court for $125 more, if he won it there, provided it became necessary to appeal, he to pay out of these sums all expenses of the litigation; that if he lost, he was to be paid nothing for services, but she would pay actual expenses; that whatever petitioner did was under the contract with Coburn, and subject at all times to its terms; that she had a right to settle the casé as she pleased, at any time, and since she has admittedly paid to said attorneys at different times sums which total $250 in gross, that petitioner has no just complaint to make, and that it is no concern of his what further she did with the case in the way of settlement. She also claims that petitioner knew of that arrangement with Cobum. Petitioner denies this, and denies that he ever heard of such a proposition until after the work was done. In other words, plaintiff claims that inasmuch as there was a contract arrangement with Cobum to handle the case through to final decree in this court for $250, to cover both fees and expenses, her obligation was discharged upon the payment to petitioner and Cobum of amounts sufficient to aggregate that sum. This amount she has paid. The payments were not, however, accepted under any conditions which would amount to a withdrawal of petitioner’s claim; but it is claimed by petitioner were applied upon actual expenses which she was to pay.

On the part of the petitioner it was claimed, and testified to by Coburn, that the contract was on a contingent basis for a percentage of the recovery, of either 25 per cent, or 50 per cent., and he did not remember which. Whatever the arrangement was, there is no question that the services of petitioner were very considerable, were faithfully performed, and enabled the plaintiff to effect an advantageous settlement. The best offer of settlement she had ever received from defendants before the case reached this court was $1,000. The two lots upon which it is sought to establish a lien for such services were directly involved in the litigation, and petitioner now claims he is entitled to a decree awarding him a lien on said lots for the amount, or reasonable worth of his services. Counsel for plaintiff in his brief says:

“But the petitioner says that the client should not be permitted to leave an attorney in the lurch under the circumstances charged, and then argues that an attorney is entitled to a lien for his services upon the property of his client which is the subject of the litigation, and he cites a case from Pennsylvania sustaining that view. There are many Michigan cases to the same effect, and we have no quarrel with that rule of law, and will admit that if Mr. Clute has anything coming to him from Miss Schutt, that it is a lien and may be .so declared upon all the property that was in controversy in the former suit.”

The amount of the legal services claimed at the hearing is $591.49 and interest at 5 per cent, per annum from March 8, 1919. There was ample testimony upon the hearing of this petition that the services actually rendered were worth the sum claimed, and that the charges were reasonable. Upon the hearing of this petition the trial court, upon the motion of the plaintiff, ordered a jury, and a jury was impaneled and heard the matter. The hearing resulted in a decree dismissing the petition and petitioner has appealed.

Petitioner’s contention here is that there was a contract arrangement between himself and Miss Schutt, whereby he was to carry the case through to final decree, his pay to be contingent on success; that the act of Miss Schutt in settling the litigation over his head, and without his consent, and thus placing it out of his power to go ahead and complete the contract, which he was prepared, ready and willing to do, permits him to disregard the contract and the amount fixed in it as compensation, even if it were as she claims, and that he is entitled to recover upon the quantum meruit for the full value of his services.

There was a sharp conflict in the evidence as to what the contract was, with reference to compensation. An examination of the record and brief in the case which was settled, and a reading of the record in this matter, satisfy us that the claim of the petitioner herein is not excessive. The contract claimed by the plaintiff is so unreasonable in its amount as to cast great doubt upon whether the minds of the parties ever met upon the subject. The claim that the petitioner, or the petitioner and Coburn,' ever agreed to carry through the hotly contested litigation to final decree in the Supreme Court and pay all the expenses of litigation for $250 is so unreasonable as to throw great doubt upon the claim. There being such conflict in the testimony by the denial of both Coburn and the petitioner, we are led to examine the letters which passed between the plaintiff and the petitioner upon the subject. In a letter bearing date November 27, 1918, the plaintiff wrote the following to the petitioner:

“William K. Clute,
“Grand Rapids, Michigan.
“Dear Sir: I am sending you the bond signed as you requested. But before we proceed any farther, I want to ask, if you care to go on with the case according to our agreement. I think I asked you that, but you did not mention it in your letter. You remember the terms agreed upon in Mr. Coburn’s office, when you and Mr. Coburn, Mr. Byron Perkins, Archie McCallum and my brother talked the matter over. Kindly let me know what you wish and then I will know what to do.
“Yours truly,
“Sana Schutt.”

Under date of December 2, 1918, the petitioner answered the foregoing letter as follows:

“Miss Sana Schutt,
“Hesperia, Michigan.
“Dear Miss Schutt: I have yours of the 27th, enclosing bond. Whatever the agreement was between you and Mr. Coburn, I will stand by it, but I did not hear that part of the conversation when the parties were here. I wish you would write to me what it was, so I will have a record of it, but I presume the costs and expenses were to be paid by you. I talked with Mr. Coburn this morning, and he tells me the proceedings that are pending against him still permit him to practice, and the court order in his matter does not yet take effect, and he still regards himself as attorney of record and with authority to act in this case. I suggest that you write to him, stating what your understanding is on the subject of agreement to terms of carrying this case through, as well as giving me the same. I want to have that part arranged definitely so we will agree on what it is.
“I am pushing the appeal papers all I can so as to get the case on to the Supreme Court docket in January, if possible. The expenses are coming right on now, and it is necessary to have the money to pay them now, and I trust you will arrange to send the $75 this week sure.
“Yours truly,
“Wm. K. Clute.”

Under date of December 6, 1918, plaintiff wrote the petitioner the following letter:

“William K. Clute,
“Grand Rapids.
“Dear Sir: In regard to the case, as I understand it you are going on with it for Mr. Coburn according to my agreement with him. Mr. Coburn agreed to take the case and if he won he was to have his fees, otherwise he was only to have his expenses. If this is not satisfactory to you, send me an itemized account of your expenses and I will pay them and you can drop the case. If you care to go on with it, send me your itemized bills and I will pay them. I am writing this so there will be no future misunderstanding. Kindly let me hear from you.
“Yours truly,
“Sana C. Schutt.”

Under date of December 9,1918, petitioner answered the last letter as follows:

“Miss Sana Schutt,
“Hesperia, Michigan.
“Dear Miss Schutt: I have yours of the 6th inst., and am willing to go on with the case according to your agreement with Mr. Coburn, that is, our fees to be paid if we win, and no fees if we lose. The expenses paid out, to be paid by you, at all events, as they come, whether we win or lose. I agree to this now because it was your original agreement as you say with Mr. Coburn, and he got me to help him on the case, and I will see you through with it on your agreement with him. This means, of course, that you are to advance the expense money as needed. (List of disbursements omitted.) There are some other small bills that have not come in yet. The record for the Supreme Court is now in the printer’s hands and will be printed and filed in the Supreme Court in a few days (some time this week), and will have to be paid for, which is liable to be around $40 or $50. The $75 I asked for last week is no more than now needed for expenses incurred up to date. I will mail you a copy of the printed record when I get them. I will send you the items of future expense as incurred. 1 believe I can win this case and I shall try hard for you.
“Yours truly,
“Wm. K. Clute.”

In his petition filed in the court below, petitioner prayed that he be permitted to file the petition and prosecute the same for the establishment of his lien on said lots 105 and 106, block N, of the village of Hesperia, Newaygo county; that the order dismissing and discontinuing said case in this court be vacated and set aside for this purpose, and that said lien be declared and enforced in said petitioner’s favor for the amount of his claim, and costs, by an order of the court directing the said amount to be paid by Sana Schutt to petitioner within a time to be fixed, and in default thereof that all her right, title and interest,' in said lots be sold to satisfy the same, under an ap-, propriate order of the court. A similar petition was filed in this court, and on April 4, 1919, this court made an order in said cause, reading as follows: .

“In this cause a petition is filed by William K. Clute, of counsel for plaintiff, to establish a lien upon certain property involved in said suit for attorney’s fees; and due consideration thereon having been had by the court, the petition is denied, but without prejudice to renew application in the circuit court for the county of Newaygo.”

Upon the subject of the measure of damages petitioner cites the following Michigan cases, among others: Kearney v. Doyle, 22 Mich. 294; Hemminger v. Assurance Co., 95 Mich. 355, 357; Brooks v. Bellows, 192 Mich. 109; Midland Operating Co. v. Miller, 197 Mich. 567, 570. These cases are cited in support of the proposition that recovery may be had for what the services of the petitioner were, reasonably worth, where he was prevented by the other party from performing the contract.

In Weeks v. Wayne Circuit Judges, 73 Mich. 256, which, case involved the fees of attorneys, this court said:

“That it is true courts as a rule look with favor upon a compromise and settlement made by the parties to a suit with the consent of all persons concerned, to prevent the vexation and expense of further litigation; but the rule only applies where the rights and interests of all the parties concerned, both legal and equitable, have all been respected, and in good' faith observed. Parties cannot assume that attorneys have no rights, without inquiry.”

Our attention is called to the case of Southworth v. Rosendahl, decided by the supreme court of Minnesota, and reported in 133 Minn. 447 (158 N. W. 717, annotated in 3 A. L. R. 468), holding that in the settlement of a case under circumstances very similar to the instant case, the attorney could recover only the reasonable value of the services rendered by him down to the time of the settlement. For a full discussion of the question we refer to thé above volume of A. L. R.

There was offered in evidence an assignment from Corie C. Cobum to petitioner of all of Coburn’s right, title and interest in and to any claims for legal services which he might have against Sana Schutt in said case, including both his own services and those of the petitioner on Cobum’s account.

We are of the opinion that when, in the correspondence between these parties, the plaintiff said, “if he won he was to have his fees, otherwise he was only to have his expenses,” and so forth, that the petitioner was justified in stating, as he did in his letter of December 9,1918, “that is, our fees to be paid if we win, and no fees if we lose”; and the petitioner had the right to conclude that the matter of reasonable fees for services rendered was there referred to. So that, whichever principle or rule may be applied, in the light of our own decisions and of the authorities cited, we are of the opinion that the petitioner is entitled to recover the amount of his claim for the value of the services actually rendered, as heretofore stated, with interest; and that the same shall be a lien upon the property described in the petition, and that he is entitled to a. decree or order of this court in accordance with the prayer of his petition.

The decree of the court below is therefore reversed, and one will be entered here in accordance with this opinion, with costs to the petitioner in both courts, to be taxed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE, for use of TAVOLIERI, v. SCHEWE.
    1. Municipal Corporations — Public Buildings — Action on Bond —Liability lor Wages Owing by Subcontractor.
    In an action on a bond given in pursuance of Act No. 187, Pub. Acts 1905 (3 Comp. Laws 1915, § 14827 et seq.) to protect laborers and materialmen, a contractor on a public building, wbo neglects to first make inquiry as to bis subcontractor’s debts before making payments to bim, is liable for wages owed and unpaid by said subcontractor.
    2; Same — Deduction ol Payments.
    Nor may bis obligation on tbe bond be limited, under the provisions of 3 Comp. Laws 1915, § 14828, by deducting tbe amount paid to tbe subcontractor, where said payments were made without requiring proof of tbe subcontractor that bis labor and material bills were paid.
    Error to Wayne; Codd (George P.), J.
    Submitted April 14, 1920.
    (Docket No. 59.)
    Decided June 7, 1920.

      Separate actions of assumpsit in justice’s court by the people of the State of Michigan, for the use and benefit of Carmeno Tavolieri, Paul Garbino and Andrew Bostinelli, against Charles R. Schewe, principal, and the United States Fidelity & Guaranty Company, surety, on a bond. Ther,e were judgments for plaintiffs, and defendants appealed to the circuit court where the cases were consolidated and tried as one. Judgment for plaintiffs on a directed verdict. Defendants bring error.
    Affirmed.

      Monaghan, Monaghan, O’Brien & Crowley, for appellants.

      Harry H. Wait, for appellees.
   Stone, J.

The “use” plaintiffs herein instituted separate suits against the defendants in justice’s court in the city of Detroit. The actions were in assumpsit, and written declarations were filed alleging breach of the bond given by defendant Schewe as principal, and the United States Fidelity & Guaranty Company as surety. The defendants pleaded the general issue. The plaintiffs recovered judgments in the justice’s court. A general appeal was taken therefrom by defendants to the Wayne circuit court, where the cases were, by stipulation, consolidated and tried as one case, and a verdict and judgments were directed for each of the plaintiffs.

Defendant Charles R. Schewe, doing business under the ■ assumed name of Charles R. Schewe Company, entered into a contract July 1, 1918, with the fire commission of the city of Detroit to do the mason work and furnish the materials and labor therefor, in the construction of a fire engine house in the city of Detroit for $28,142. The defendant guaranty company is the surety on the statutory bond in the penal sum of $28,142, given by Mr. Schewe for the protection of subcontractors, laborers and material men, in pursuance of Act No. 187, Pub. Acts 1905 (8 Comp. Laws 1915, §§ 14827-14830), entitled:

“An act to insure the- payment of subcontractors and wages earned and material used in constructing, repairing or ornamenting public buildings and public works.”

One Albert Pidro was a subcontractor of defendant Schewe. By a written contract dated July 17, 1918, Pidro agreed to furnish the labor and material in connection with the excavation and sewer work on this job for $1,700. The plaintiffs claim to have been employed by Pidro, the subcontractor, and to have performed labor in connection with his subcontract, and are seeking in their respective suits to recover on the bond the amounts claimed to be due them, severally, from Pidro, their employer. It should be stated that on the trial no question was raised as to the performance of the labor by the plaintiffs, nor that the respective amounts claimed were reasonable and proper. And it seems to have been conceded that plaintiffs were not subcontractors but laborers. Upon the trial there was an issue of fact as to whether or not the subcontractor, Pidro, abandoned the job before completing it, or whether he had completed it when he quit work. It was the claim of defendant Schewe that Pidro abandoned the job before completing it, and there was evidence tending to support the claim. On the other hand, Pidro claimed and testified that he had completed the contract when he quit. He admitted and testified that prior to the last work done on the job Schewe had paid him a total of $800 on the contract.

At the close of the evidence the plaintiffs moved for directed verdicts in their favor for the amount of their respective claims,—

“upon the theory that under the statute this bond covers absolutely payment of all labor and material up to the contract price. That the subcontractor is not entitled to' any money, and that the principal contractor has no right to pay him money until ’receipt- or satisfaction has been received from his laborer and material men. That the $800 paid to Pidro is not entitled to credit, in the reduction of this claim.”

It is the claim of defendants’ counsel that this motion was, in effect, an admission by the plaintiffs that Pidro abandoned the job before completing it, and that the total cost to defendant Schewe, as claimed by him, in having that part of the job completed, was $2,320.

The condition of the bond upon which plaintiffs rely for recovery reads as follows:

“Now the condition of this obligation is such that if the said Charles R. Schewe Co. shall pay to any subcontractor, or by any such contractor or subcontractor as the same may become due and payable of all indebtedness which may arise from said contract to a subcontractor, or party performing labor or furnishishing materials, or any subcontractor to any person, firm or corporation on account of any labor performed or materials furnished in the erection, repairing or ornamentation of such building, improvement or works, then this obligation shall be void, otherwise the same shall be in full force and effect.”

It is not questioned that the bond was given pursuant to the provisions of the statute above referred to.

Section 14830, 3 Comp. Laws 1915, provides that such bond may be prosecuted and a recovery had by any person, firm or corporation to whom any money shall be due and payable, on account of having performed any labor or furnished any materials in the erection of any such building or works, in the name of the people of this State for the use and benefit of such person, firm or corporation, and it contains the following proviso:

“Provided, however, That in the case of a suit for the benefit of a subcontractor, he shall be required to> allege and prove that he has paid to all parties entitled thereto the full sums due to them for labor or materials contracted for by him.”

It is well in this connection to note the proviso in section 14829, which reads as follows:

“Provided, however, That the principal contractor shall not be required to make any payment to a subcontractor of sums due from the subcontractor to parties' performing labor or furnishing materials, except upon the receipt or the written orders of such parties, to pay the sums due to them to subcontractors.”

The defendants have brought the case here on writ of error, and by proper assignments of error they raise the questions discussed, as follows:

1. Must a contractor, in constructing public buildings, first make inquiry as to his subcontractor’s debts for labor and material, before making payments to the subcontractor?

The object and purpose of the statute under consideration have been stated by this court as follows:

t “We are of the opinion that by the statute in question, the legislature intended to afford to those who furnish labor or material for public buildings or works, the same protection they would have under the general lien laws of the State, had the labor and materials been furnished for a private undertaking. If we are correct in this view, we are left in no doubt as to the construction the statute should receive. In Smalley v. Gearing, 121 Mich. 190, 203, this court said:
“ ‘The equity of a lien claim for labor or materials arises from the fact that the value of the property to which they have been applied has been increased.’ ” City of Alpena v. Surety Co., 159 Mich. 329, 333.

In view of the provisions of the statute above quoted, and keeping in mind the purpose of the legislation, we are of the opinion that the above question should be answered in the affirmative.

2. It is next urged by appellants that the principal contractor shall not be obligated to any greater extent than is provided for in his contract with the subcontractor, and section 14828 is referred to. Counsel for plaintiffs reply to this proposition as follows:

_ “Counsel for defendants contend, under the provisions of section 14828, that the bond given herein is not liable for the payment of the claims of plaintiffs, because the subcontractor, Pidro, abandoned the contract, and that it cost a sum in excess of. his contract price to complete the contract. Said section, in so far as it is material here, reads as follows:
“ ‘But the subcontractor and the persons who shall have performed labor or furnished materials to- him shall not in the aggregate be entitled to receive larger sums than may be required from the principal contractor under his contract with the subcontractor, nor shall this act be construed to change in any way the contract which may have been made between the principal contractor and the subcontractor, except when such contract shall attempt to relieve the principal contractor as against the demands of those performing labor or furnishing materials to the subcontractor.’
“Counsel for defendants omit to call attention to the exception at the end of the section which beads: ‘Except when such contract,’ etc.
“The foregoing section 14828 was added in 1905. Prior to this time subcontractors were not entitled to the protection of the required bond. (Citing cases.)
“It is insisted here that the section above referred to was enacted for the purpose of giving protection to the subcontractor under the required bond, under which his recovery is limited to the aggregate of his claims and the persons who shall have furnished labor or material to him which he has actually paid, and does not in any way affect the demands of those performing labor or furnishing materials to the subcontractor, regardless of whether or not such claims in the aggregate exceed the contract price of the subcontractor. There are no provisions in said act whereby the surety liability can be pro-rated. It differs in this respect materially from the general or so-called mechanic’s lien law, and therefore, the contention of defendants that in case of abandonment by the contractor, the owner may, as against all claims of contractors’ employees, complete the structure and charge •the cost thereof as against the contract price, has no application to the instant case. *- * * The surety upon the bond herein, .according to the conditions named in said bond, is liable to the full amount of the penalty named in the bond, to wit, the sum of $28,142. There is no evidence in the case before us to show that the cost of the fire engine house to be erected under the contract, and for which the bond was given, exceeded that sum.”

We are of the opinion that the trial court properly disposed of this proposition in the charge, from which we quote below..

Further commenting upon this section of the statute, attention is called by defendants to the fact that according to the terms of this contract $600 were to be paid to Pidro when certain of the work was completed and the balance in three installments, upon the certificate of the architect. We think that this matter was fully and correctly covered by the charge of the court, which was in part as follows:

“It is' my opinion that the act which was passed some years ago requiring a bond to be furnished by a contractor for the performance of public work, was giving to material men and laborers upon a public building, the same protection, or a protection of a like nature, which is given to men furnishing material and performing labor upon a private dwelling, or upon a private building. Now, there is no dispute in this case that the three plaintiffs performed work that they state they performed and that their bills were proper and reasonable. There is no dispute in this case, as I understand it, and it is conceded by counsel, that the amount thereof had not been paid. It seems, however, that during the progress of this work, the sum of $800 had been paid. It is also shown that no inquiry was made by Mr. Schewe asking for and in behalf of his company, as to the disposition of this money, or whether or not others who had been employed by Pidro, the subcontractor, had been paid. It seems tó me that under the terms of the act, he could very rightly have withheld payment of moneys until he had been so assured, because the act provides that the subcontractor cannot sue the principal contractor until he has previously, before the suit, shown that all obligations of his to laborers and material men under the subcontract have been paid or adjusted. So, until that is done, I cannot see where there was any legal obligation on the part of Mr. Schewe to pay this $800. While I recognize the fact that the act provides that this protection goes to the material men and laborers, up to the amount of the original contract price, and not in excess of it — in other words, that a man shall-not pay more for his building or for a public building than the contract he has entered into; at the same time I cannot believe that it was the intent of the legislature to allow payments to be made so carelessly as evidently this one was, without any inquiry as to whether or not these men had been paid. It has been shown in this case that Mr. Schewe would have to pay more for this excavation than the original contract called.for; but I cannot believe, under the circumstances, that the law would contemplate that he is entitled to have the credit for $800 paid without any inquiry as to whether or not the other men had been settled with before this was doné. Therefore, under the circumstances, it becomes my plain duty as I see it, to direct you to return in each of these cases a verdict in favor of the plaintiff. Your verdict in favor of Mr. Tavolieri will be in the sum of $169.32, in favor of Mr. Bostinelli iñ the sum of $354.07 and in favor of Mr. Garbino of $69.32.”

Finding no reversible error in the record, the judgments entered in the court below are affirmed.

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


text:
    SLATKIN v. SCHUMER.
    1. Vendor and Purchaser — Land Contracts — Notice—Bona Fide Purchaser.
    Where the vendees in a land contract are in possession of the premises, one who buys from the vendor without inquiry cannot be said to be a tona fide purchaser.
    2. Contracts — Enforcing Contract as Made.
    Courts can only require the performance of contracts the parties have made themselves, and cannot make contracts for them.
    3. Specific Performance — Land Contracts to be Enforced Must be Certain and Definite.
    In order to warrant specific performance of a land contract, it must be certain and definite, so that the full intention of the parties may be ascertained to a reasonable degree of certainty.
    4. Same — Not a Remedy of Right.
    Specific performance is not a remedy of right, but one resting in the sound discretion of the court.
    5. Same — Land Contract — In capable of Enforcement — Equities —Dismissal.
    In a suit for the specific performance of a land contract, which was imperfect in its terms, containing contradictory f clauses, and although time was of the essence of the contract the time within which it should have been performed had expired, subsequent to which other parties acquired interests in the property conveyed whose equities were superior to plaintiff’s, the court below properly dismissed the bill.
    Appeal from Wayne; Marschner (Adolph F.), J.
    Submitted April 9, 1920.
    (Docket No. 31.)
    Decided June 7, 1920.
    Bill by Charles Slatkin and another against William F. Schumer and others for the specific performance of a land contract. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Samuel W. Shier (Guy W. Moore, of counsel), for plaintiffs.

      Howard H. Campbell (Joseph H. Primean, Jr., of counsel), for defendants.
   Stone, J.

This case is here upon appeal by the plaintiffs, from a decree of the circuit court of Wayne county, in chancery, dismissing the bill of complaint. The bill was filed by the purchasers, Charles Slatkin and Ruth, his wife, against the vendors, William F. Schumer and Emma, his wife, praying for a decree for the specific performance of a so-called land contract bearing date January 2, 1919, and hereinafter set forth. The defendants Leo J. Hopcroft and Henrietta M., his wife, are the subsequent purchasers from the defendants Schumer, of the premises here involved, and other adjoining premises — the property here involved being a part of a larger property \upon which there were existing at the time of the hearing three mortgages,,to wit: a first mortgage bearing date June 13,1914, for $5,200; a second mortgage dated April 21, 1916, for $2,800, both given to the Detroit Savings Bank; and a third mortgage to certain parties of Tiffin, Ohio, called the “Tiffin mortgage,” bearing date January 18, 1918, upon which there was unpaid the sum of $5,500, at the time of the hearing below.

On or about January 2, 1919, plaintiff Charles Slat-kin and defendant William F. Schumer met at the office of Mr. Primeau, an attorney, and discussed the terms of an agreement to be entered into for the purchase by Slatkin of the premises here involved. The interview resulted in the contract following, which was signed in duplicate on January 4, 1919. That contract was as follows, viz.:

“This agreement, made and entered into this second day of January, A. D. 1919, by and between William F. Schumer and Emma Schumer, his wife, of the city of Detroit, county of Wayne, State of Michigan, parties of the first part, and Charles Slatkin, and Ruth Slatkin, his wife, also of said city of Detroit, parties of the second part.
“Witnesseth as follows:
“Whereas, the said parties of the first part are the owners of the land hereinafter set forth, and are desirous of selling the same to said second parties, and said second parties are willing to purchase the same subject to the conditions hereinafter set forth;
“Now, therefore, in consideration of the sum of one dollar and other good, valuable considerations, paid by said second parties to said first parties, receipt whereof is hereby confessed, the said parties of the first part hereby agree to sell to said second parties the following described land, situated in the city of Detroit, county of Wayne, State of Michigan: .
“A piece or parcel of land approximately twenty feet frontage on Jefferson avenue, by forty-seven feet in depth, so as to cover the premises now occupied by Charles Slatkin, as his jewelry store, and covering the porch in rear thereof, being a part of lot one (l),i of J. L. Miner’s subdivision of the westerly 212.54 ft. of outlot No. 1, subdivision of the St. Jean Farm, being the westerly part of private claim 26, between Jefferson avenue and Edlie avenue, Fairview (now Detroit), Wayne county, Michigan, according to the recorded plat thereof in the office of the register of deeds, in liber 25 of plats, on page 25 — for the sum of seven thousand dollars ($7,000), which the parties of the second part hereby agree to pay to said parties of the first part as follows:
“The sum of five hundred dollars, upon said first parties being able to have mortgages reduced against said above described premises to the sum of thirty-five hundred dollars, which mortgage said second parties will assume and agree to pay.
“Also upon examination of abstract to said parcel of land showing a good merchantable title to said land in_ said parties of the first part to the satisfaction of said second parties, free and clear of all incumbrances excepting mortgage of $3,500 above mentioned.
“2. The sum of three thousand dollars cash upon delivery to said second parties of a warranty deed to said premises given by said first parties, free and clear of all liens and incumbrances, subject to a mortgage of $3,500.
“3. The assumption by said second parties upon acceptance of said deed of the payment of said mortgage of $3,500, according to the ten'or thereof.
“It is hereby mutually understood between the parties hereto that said first parties shall furnish an abstract of title to said second parties, showing a good merchantable title to said premises, free and clear of all incumbrances, excepting mortgage above referred to of $3,500 within fifteen days from the date hereof, and that said second parties shall cause said abstract to be examined within five days from receipt of said abstract, so that the entire matter can be settled and deed herein covenanted for and be delivered on or before February 1, 1919.
“It is understood and agreed between the parties that if the mortgage now held by the Detroit Savings Bank is not'reduced to thirty-five hundred dollars, said second parties agree to give a second mortgage up to five hundred dollars, payable four years from date of deed, so that first parties can apply cash consideration of this deal to the payment of said Detroit Savings Bank mortgage to not more than three thousand dollars.
“It is understood that after the title is found satisfactory and that there are unpaid claims against said property, said second parties are willing to pay said claims out of the consideration hereof upon order of said first parties, and the amount so paid, if any, will be deducted from the three thousand dollars to be paid said first parties and credited upon said payment.
“It is understood that the deed above covenanted for shall contain a clause for an easement giving said second parties, their heirs’and assigns the perpetual use of the passageway of three feet wide on the west side of said lot one so that they shall have the right of egress, regress and ingress from land hereinbefore described to the alley in the rear thereof. This right to be in common with the owners and their tenants of the adjoining premises on the east and south side of said land.
“It is understood that said first parties shall have the right of an easement in the premises herein covenanted to be sold for the use of the water connection in order to furnish water to their tenants of premises known as 2460 and 2460% Jefferson avenue, and that for such right said first parties shall pay three-fourths of the water rates charged against said premises up to March 1, 1919, and by that time said first parties must install meters in the premises adjoining thereto. This privilege of using this water connection shall continue until said first parties shall connect his own premises with water, and said connections must be made within one year from date of deed. In case meters are not installed by March 1, 1919, said second parties shall have right to discontinue use of water to said adjoining premises until other arrangements are made.
“It is mutually understood by and between the parties hereto, that in case of default in any of the terms and conditions herein stated by' said second parties, the said first parties shall'have the right to declare this contract forfeited and said second parties shall pay to said first parties the sum of five hundred dollars as stipulated damages for the nonperformance of this contract.
“It is mutually understood that if said first parties are unable to have the Detroit Savings Bank reduce their mortgage against said premises to the sum of thirty-five hundred dollars by February 1, 1919, then ■ these presents are to be null and void and of no effect and each of the parties hereto will be released from obligations of this contract.
“In witness whereof, the parties hereto have hereunto set their hands and seals in duplicate, the date and year first above written.
“William F. Schumer (Seal) “Emma Schumer (Seal)
“Chas. Slatkin (Seal)
“Ruth Slatkin (Seal)
“Signed, sealed and delivered in presence of:
“Sam Freedman,
■ “J. B. Hippler.
“Detroit, Mich., January 4, 1919.”

The Tiffin mortgage was not mentioned in the pleadings, but was introduced in evidence, over the objection of the plaintiffs, to show the state and condition of the title. A careful reading of the foregoing instrument will show that it is a most remarkable document. It contains numerous repugnant and dissimilar provisions, and in the light of the testimony of the parties it may'well be doubted whether the minds of the parties thereto ever met, if '"that expression is applicable to a written contract. To add to the confusion, is the fact that the parties' in their testimony do not agree on a single material fact as to what was done or took place between them subsequent to the signing of the instrument.

It will be noted that the so-called contract, after stating that the entire purchase price was $7,000, provided for the payment of $500 upon the first parties being able to have the mortgages reduced against the premises described to the sum of $3,500, which sum was to be assumed by the plaintiffs. Also upon examination of abstract, which was to show a good merchantable title to the land in the first parties to the satisfaction of the second parties, to be free and clear of all incumbrances, except the mortgage of $3,500 to be assumed. The testimony tends to show tnat the Tiffin mortgage was here wholly ignored, and there was no arrangement made with the holders of that mortgage to divide or reduce the same, or release these premises. Another provision of the contract, which can only be explained by having in mind the Tiffin mortgage is the following:

“It is understood that after title is found satisfactory and that there are unpaid claims against said property, said second parties are willing to pay said claims out of the consideration hereof upon order of said first parties, and the amount so paid, if any, will be deducted from the $3,000 to- be paid said first parties and credited upon said payment.”

What this provision means it is very difficult to determine. The Tiffin mortgage of $5,500 certainly could not be paid with $3,000, and from the testimony the minds of the parties had not met upon that subject. About the only thing that is undisputed is the testimony of the officer of the Detroit Savings Bank, who testified that that bank refused to divide these mortgages, or to. release all but $3,500 against these premises except upon the payment of $1,000. The payment of $1,000, or any other sum, was evidently not contemplated by the parties when the contract was made. The defendant Schumer .testified that ft was impossible for him to raise that sum; that he was "hard pressed,” and found it impossible to get any money at the banks, or elsewhere, and was even inducing the plaintiff Slatkin, who was a tenant occupying these premises under a lease, to pay him rent in advance. This property, together with the adjoining property, was subsequently sold to defendant Hopcroft for $21,-500. There were mortgages outstanding against the entire property at the time, according to this record, of $13,500. It is not strange that defendant,Schumer found it difficult to borrow any more money upon the property. The contract contains this clause:

“It is mutually understood that if said parties are unable to have the Detroit Savings Bank reduce their mortgage against said premises to the sum of $3,500 by February 1, 1919, then these presents are to be null and void and of no effect, and each of the parties hereto will be released from obligations of this contract.”

Standing over against this provision is the following:

“It is understood and agreed between the parties that if the mortgage now held by the Detroit Savings Bank is not reduced to $3,500, said second parties agree to give a second mortgage up to $500, payable four years from date of deed, so that first parties can apply“cash consideration of this deal to the payment of said Detroit. Savings Bank mortgage to not more than $3,000.”

How this provision can be reconciled with the other one just quoted, it is'difficult to understand. They are repugnant and contradictory. The plaintiffs claim that this is a proper case for the specific performance of this agreement, so-called, and lay much stress upon the fact that defendants Schumer have never served any notice of forfeiture upon the plaintiffs.

It is the claim of defendants Schumer that by the terms of the contract the reduction of the incumbrance upon the property in question to $3,500 by the Detroit Savings Bank was in the nature of a condition precedent to the performance of the contract; that the plaintiff Charles Slatkin was notified a number of times during the month of January that this division and arrangement could not be made, and that by his language and conduct he acquiesced in the claim of defendant Schumer that the contract was therefore at an end, Slatkin saying: “Well, you can't if you can’t, that is all.”

It seems that a certain note of $100 had been given by the defendant William F. Schumer to the plaintiff Charles Slatkin, and at the time of the' signing of the so-called contract it was agreed that Slatkin should take care of the note, which had been indorsed by him and discounted, and that the same should apply as a payment upon the contract. It is the further claim of defendant Schumer that, during the month of January, Slatkin went to him and requested him to pay this note, thereby indicating that he treated the negotiation as ended, and sought to put matters in their original position. That position was one of landlord and tenant. The plaintiff was in possession of the premises here involved under a lease from defendants Schumer, which lease is still running so far as time is concerned, has never been surrendered, nor has possession of the premises under the lease been surrendered. Whether a tender -was made or attempted, as claimed by Slatkin, was a disputed question at the hearing.

The premises, together with the adjoining property, were sold and conveyed to the defendant Hopcroft and his wife by the other defendants on the 11th day of February, 1919, and within a day or two thereafter defendant Hopcroft caused to be served upon plaintiff Charles Slatkin a notice that he had purchased the premises, and that Slatkin should pay him all future rents accruing under the lease. According to Hop-croft’s testimony, plaintiff Slatkin came to him after his purchase and requested certain repairs to be made to the closet on the premises, and Hopcroft paid the plumber for the work. Nearly all of these matters were disputed by the opposite parties. The. record abounds in testimony that is contradicted, but the learned circuit judge, who heard the case, disposed of it in a very short opinion, in which, among other things, he said:

“Before adjudicating the rights of the parties, it is well to keep in view that the relief prayed for will not be granted unless the clear weight of the evidence, considering the principles involved, should move the court to grant the plaintiffs the remedy they seek. As has been stated, it is not a matter of right, but one of grace.
“Other rights have intervened, and while I do not believe that the subsequent purchaser stands well in the shoes of an innocent purchaser, the matter of his position must be kept in mind in passing on the evidence. It is the aim of the court to do justice to all the parties, and relief will not be granted where more harm would befall the defendants in the light of the circumstances than could perchance benefit the plaintiffs. The affirmative rests with the plaintiffs and from an appraisal of the testimony in this case, I do not feel that this burden has been sustained.
“The parties here were neighbors and as landlord and tenant were in close touch with one another. I do not believe that they misapprehended their rights under their written agreement. The abstract was to be delivered within fifteen days after the date of execution. Its non-delivery placed the plaintiffs at least upon inquiry. While they were not bound to act upon this circumstance, their actions subsequent thereto necessarily are not without some importance. The plaintiffs’ actions and conduct subsequent to the acquisition of rights in the premises by Hopcroft, with said Hopcroft as well as with defendants Schumer, might well have indicated a different intention on their part. I am of the opinion that the plaintiffs could have saved the situation of Hopcroft by asserting their claims otherwise than the testimony indicates. The proofs do not satisfy the court in this regard, and I am led rather to believe that the plaintiffs through their conduct have made their own situation possible and that the defendants, in reliance upon plaintiffs’ actions, cannot now be held to a specific performance of the contract. Hopcroft did not purchase until after the date mentioned in the agreement for its termination.
“Their difficulties in reference to the mortgage, its reduction, the consequent negotiation with regard to the note later, and other facts and circumstances, do not satisfy the court of the continuing intent of the plaintiffs to enforce the agreement, and to stand upon their rights thereunder.
“I am of the opinion that the plaintiffs are without relief in equity to enforce this contract, and conclude that the bill must, therefore, be dismissed, with costs to the defendants.”

Without reviewing the testimony in the case, all of which we have read, we are constrained to agree with the circuit judge in the value which was placed upon such testimony by him, and in the conclusion which he reached.

It cannot be said that the defendant Hopcroft was a bona fide purchaser, in the light of the fact that the plaintiffs were in possession of this property, and we think it was the duty of Hopcroft to have inquired into the nature and extent of such possession; but we do think his equities in the case are superior to those of the plaintiffs. Hopcroft paid for the property, and has expended money thereon in good faith.

As was said by the supreme court of Minnesota in a case somewhat similar (see Enkema v. McIntyre, 136 Minn. 293 [161 N. W. 587, and note to 2 A. L. R. 411]):

“It is rather a question of superiority of equities. If Van Dalen’s purchase was an honest transaction, and was induced or made possible by the conduct of the plaintiff his equities are superior. * * * Even if it can be said that he can be placed in statu quo, still we think that, inasmuch as he has completed his purchase, paid out money, and assumed obligations, his equities are greater than those of plaintiff, and that the court should not now aid in divesting him of his title or rights.”

In answer to the contention that a notice of forfeiture should have been served to properly terminate the contract, that court held that the statute forbidding a vendor to terminate a land contract without giving prescribed notice, did not prevent the vendee’s abandonment of the contract.

It should be borne in mind that this is not a bill to reform a contract. Courts can only require the performance of contracts the parties have made themselves, and cannot make contracts for them. A contract to be valid must be certain and definite in order to warrant a specific performance, and conflicting terms or clauses of a contract which cannot be reconciled cannot be ignored by the court in considering the question of specific performance. It is said to be an elementary rule that in order that a contract may be enforceable the promise or agreement of the parties to it must be certain and explicit, so that their full intention may be ascertained to a reasonable degree of certainty. 6 R. C. L., title “Contracts,” § 59, p. 644. Contracts are to be construed with, reference to all of their terms.

In 13 Corpus Juris, p. 536, the rule is stated as. follows:

“Where two clauses are so repugnant that they cannot stand together, the first will be retained and the second rejected, unless the inconsistency is so great as to avoid the instrument for uncertainty, and this rule is the more readily applied where the instrument is apparently carelessly drawn, or where the conflicting clause is on the back of the contract. But where the language admits of but one meaning and the different clauses are plainly contradictory, they mutually destroy each other, and render the instrument void. In any event a subsequent clause may be rejected as repugnant only where it cannot be given effect by any fair or reasonable interpretation of the entire contract, the rejection of a repugnant clause being an expedient which the court will have recourse to very reluctantly.” See the numerous cases cited.

In Union Pub. House v. Tumbleson (Iowa), 134 N. W. 552, the court said:

“The claim is that as matter of law the first stipulation on the subject found in the contract was conclusive, and any further stipulation in modification thereof should be disregarded. This is not the law. All the terms of the contract are to be construed together if possible, and a subsequent provision modifying, limiting, or otherwise in part contradictory to a prior stipulation may be given effect.”

If any effect is to be given to the last clause of the contract, which clause we have quoted, then time was of the essence of this contract; and it should be held that it terminated on February 1, 1919. In our opinion the contract here in question is too imperfect in its terms to warrant the court to decree a specific performance. Specific performance is not a remedy of right, but one resting in the sound discretion of the court. This doctrine has been so frequently announced by this court that it would seem to be unnecessary to refer to cases. The rule is well expressed in Oakman v. Esper, 206 Mich. 315. It would be very, difficult to frame a decree for specific performance in this case.

In our opinion the court below reached the correct conclusion in this case, and its decree will be affirmed, with costs to the defendants.

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


author: Clark, J.

text:
    DUNTON v. SWEET.
    1. Appeal and Errob — Great Weight of Evidence — New Trial.
    A motion for a new trial not having been made, an assignment of error that the verdict is against the great weight of the evidence cannot be considered
    2. Landlord and Tenant — Action for Rent — Eviction—Question for Jury.
    In an action for rent, whether the building of a balcony by the landlord obstructed the passage of light and deprived the tenants of the use and enjoyment of a portion of the premises, amounting to a constructive eviction, where the testimony was conflicting, held, a question of fact for the jury, under proper instructions.
    3. Same — Consent to Obstruction — Question for Jury.

      Held, that the court properly submitted to the jury the controverted question as to whether defendants’ consent to the building of the balcony was absolute, or whether it was on condition that it would not interfere with the light in their shop.
    On effect of partial eviction upon liability for rent, see notes in 17 L. R. A„ 275, 41 L. R. A. (N. S.) 430.

      4. Same — Waiver—Imputations.
    A waiver of defendants’ lights could not be implied from their conduct in remaining in possession, in paying rent, and in permitting plaintiff to erect the balcony, where the light was not obstructed until its completion, since a waiver by continued occupancy or silence is generally a waiver only of conditions existing at the time.
    5. Same — Continued Possession and Payment of Rent — Waiver.
    Defendants’ continuance in possession for several months after the obstruction of the light will not be construed as consent to the eviction, nor will the subsequent payment of rent according to the terms of the lease, as a voluntary act, operate as a waiver, since nothing but a new contract by the tenants to pay rent, in substitution for the original lease, will renew his obligation to pay.
    6. Same — Directed Verdict Against One Defendant Not Warranted — Partial Possession.
    Where the lease did not provide for any division of the property or of the rent between defendants, the fact that the light in one portion of the building which was occupied by one of the defendants was not obstructed would not warrant the direction of a verdict against said defendant, since defendants had the right to the use and occupation of each and every part of the premises.
    Error to Kent; McDonald (John S.), J.
    Submitted April 13, 1920.
    (Docket No. 43.)
    Decided June 7, 1920.
    Assumpsit by Marian H. Dunton against Frank I. Sweet and another for rent. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Grant Sims, for appellant.

      Clare J. Hall, for appellees.
   Clark, J.

On March 3, 1918, plaintiff, Marian H. Dunton, leased to defendants, Frank I. Sweet and Leon S. Heth, individually, for the term of 38 months at $116.32'per month, .the two-story building and basement known as 223 and 225 Bond avenue, Grand Rapids. There was also included in the lease the yard in the rear of the building. Mr. Heth testified:

“I repair motors and generators, magnetos as used on automobiles for electrical equipment. I repair just the electrical instruments, it is a special branch of the service. Mr. Sweet does storage battery work exclusively, and we are together because it is very essential that we have storage batteries in connection with the starting, lighting and ignition and that is why the two businesses work very well together. Mr. Sweet is an expert battery man. I am an expert electrical man. Neither of us has any financial interest in the business of the other. * * *
“We got our light from a large window at the west end (back) of the building;-there was a partition that shut off the light from the east front. We put our machinery as far as possible away from the window as it happened to be the place where we could hook up the motor line shaft. We placed the benches where we do our fine work as near as we could get them to the west window without crowding, and we could do our fine work by the light from the west window.”

There were other windows in the west end of the building. Defendants divided space on the leased premises to suit their needs. To be used in connection with a building upon adjoining premises, plaintiff caused to be constructed over a part of the yard leased to defendants a balcony or overhang 12 to 15 feet west of the building leased to defendants, 12 feet in width, 36 feet in length and about 12 feet in height, the floor of the balcony or overhang being about 10 feet above the level of the yard and somewhat above the level of the first floor of said leased building. The building of the balcony was begun in September, 1918, the outside of the structure was finished in October and it was fully completed in December following. Defendants paid rent monthly in advance to March 3, 1919, and on February 25, 1919, notified plaintiff that t]ie balcony had cut off the light to such an extent that they were unable to use the building, that they considered the lease void and would at once vacate the premises, which they did. Before another tenant was' secured the premises were vacant 3 months and 9 days, for which period plaintiff brought suit to recover rent. Defendants pleaded the general issue and gave notice of eviction and breach of the lease. Upon trial there was verdict of no cause of action, upon which judgment was duly entered.

Plaintiff here urges:

1. That the verdict is against the great weight of evidence. A motion for a new trial not having been made, this question cannot be considered. Clarke v. Case, 144 Mich. 148.

2. That a verdict should have been directed for the plaintiff against both defendants. Plaintiff had testimony that there was in fact no obstruction of light, that defendants consented to the building of the balcony, that they were present as the work progressed and made their first complaint February 25, 1919, from 2 to 4 months after the balcony was completed, that they paid rent for at least 5 months after such building was commenced and at least twice after it was finished. Plaintiff contends that there was no eviction and that in any event defendants waived the right to complain. Defendants admit that they stated to plaintiff that they had no objection to the erecting of the balcony so long as it would not interfere with the light in the shop, and say that after its completion they attempted unsuccessfully to use in the day time an artificial light, and that the erection of the balcony seriously interfered with their light and the beneficial enjoyment of the premises and amounted to a constructive eviction and that they were justified in vacating the premises when they did. Whether the building of the balcony obstructed the passage of light and deprived defendants of the use and enjoyment of a portion of the premises and amounted to a constructive eviction was a question of fact submitted to the jury under proper instructions. Tiffany’s Landlord and Tenant, pp. 826, 1262; Kuschinsky v. Flanigan, 170 Mich. 245 (41 L. R. A. [N. S.] 430, Ann. Cas. 1914A, 1228); Bamlet Realty Co. v. Doff, 183 Mich. 694.

“An eviction may be from the whole of the demised premises, or from part only, a ‘partial eviction’ as it is termed. For the purpose of constituting a defense to a claim for rent, a partial eviction by the landlord is as effective as an entire eviction, but there would ordinarily be a difference as regards the liability of the landlord in damages. An actual eviction may be partial, as when the landlord takes possession of part of the premises by actually dispossessing or excluding the tenant therefrom, as likewise, presumably, may a constructive eviction, ^s when the landlord so interferes with the tenant’s enjoyment of a part of the premises that the latter is justified in relinquishing possession of that part and he does so, retaining possession of the residue. Moreover, an actual eviction of the tenant from part of the premises may so affect his enjoyment of the premises as a whole as to justify their entire abandonment by him, thus resulting in a constructive eviction from, the whole.” Tiffany’s Landlord and Tenant, pp. 1264, 1265.

Respecting the question of whether defendants’ consent to the building of the balcony was absolute, as contended by plaintiff, or conditioned that there would be no interference with the passage of light, as contended by defendants, and respecting the relation of this question to the main issue in the case, the eviction, the jury was correctly and fully instructed. As to whether waiver is to be implied from the conduct of defendants in remaining in possession, in paying rent, and in permitting plaintiff to erect the balcony, as above stated, it is noted that defendants’ complaint is not of the encroachment nor of the taking of the space occupied by the balcony, but of the result which they claim followed the erection of it, viz., the obstruction of the passage of light. A waiver by continued occupancy or silence is generally a waiver only of conditions existing at the time. The. passage of light was not obstructed until the building was erected, after which defendants continued in possession and paid rent for several months. This was not a waiver. Justice Bird, speaking for the court, in Kuschinsky v. Flanigan, supra, said:

“The tenant may continue in possession of the remainder of the premises, and his possession will not be construed as consent to the eviction; nor will the subsequent payment of rent, according to the terms of the lease as a voluntary act, operate as a waiver. Nothing but a new contract by the tenant to pay rent, in substitution for the original lease, will renew his obligation to pay.
“Applying these rules of law to the admitted facts in this case, it at once becomes apparent that the defendant did not waive his right to insist upon a partial eviction by remaining in possession of the remainder of the premises and paying rent therefor for several months after the acts complained of were committed.”

See, also, New York State Investing Co. v. Woolf, 145 N. Y. Supp. 945; Graecen v. Barker, 130 N. Y. Supp. 141; Wusthoff v. Schwartz, 32 Wash. 337 (73 Pac. 407).

3. That the court erred in refusing a request to direct a verdict against the defendant Sweet. The obstruction to passage of light affected that part of the building which, by an arrangement between the defendants, had been apportioned to defendant Iieth. The two defendants leased the whole of the premises for the term. The lease provided for neither division of the premises nor division of the rent between the defendants. Defendants'had the right to the use and occupation of each and every part of the premises. To dispossess one and leaye the other in possession .would be in effect a new letting by the lessor. The court did not err in refusing the request. In re Hotchkiss, Fed. Cas. No. 6,715; Sentliffer v. Jacobs, 84 N. J. Law, 128 (86 Atl. 929); Tiffany’s Landlord and Tenant, p. 220.

We have considered the other questions raised and find no reversible error. The judgment is affirmed.

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


text:
    ARNHAM v. ROUND.
    1. Drains — Injunction—Flooding Lands — Landowners Not Parties Have Right to Injunction.
    Where a proposed drain does not cross plaintiffs’ lands, and they are not parties to the drain proceedings, they have a remedy by injunction respecting their claim that the construction of the drain will cause flooding of their lands along the river beyond the extent to which they were previously flooded, to their damage.
    2. Same — Damages—Evidence—Sufficiency.
    Evidence heM, to support the conclusion of the court below that the construction, of a proposed drain will not have the effect of flooding plaintiffs’ lands beyond the extent to which they were previously flooded.
    3. Same — Parties to Proceedings Have No Right to Injunction.
    Where a township and its highway commissioner, parties to the drain proceedings, neglected to bring certiorari under 1 Comp. Laws 1915, § 4908, they were not afterwards entitled to an injunction to restrain the construction of the drain for a mere irregularity.
    4. Same — Valid Application Confers Jurisdiction.
    By the filing of a valid application the drain commissioners of two adjoining counties acquired jurisdiction to construct the drain.
    5. Same — Extending Drain Does Not Invalidate Proceedings.
    The extending of the line of the drain upwards of three miles beyond the route described' in the application did not make the proceedings void, but at most was an irregularity.
    6. Same — Right of Wat — Correction of Proceedings.
    The correction of the drain proceedings as to one plaintiff, owner of a lot across which a right of way was not obtained, was properly decreed in a suit to enjoin the construction of the drain.
    Appeal from Allegan; Cross . (Orien S.), J.
    Submitted April 21, 1920.
    (Docket No. 24.)
    Decided June 7, 1920.
    Bill by Oscar Arnham and others against Daniel J. Round and Charles E. Ashley, drain commissioners of Allegan and Van Burén counties, to enjoin the construction of a drain. From a decree for defendants, plaintiffs appeal.
    Modified and affirmed.

      Clare E. Hoffman, for plaintiffs.

      Wilkes & Stone, for defendants.
   Clark, J.

The bill was filed to restrain the letting and constructing of a drain. Lee township of Allegan county is adjoined on the .east by Cheshire township of the same county and on the south by Columbia township of Van Burén county. Near the southwest corner of section 21, Lee township, and near Lee station on the Pere Marquette railway, several confluent streams make the head of what is called Black river. The river is about 9 miles in length and empties into Lake Michigan. One of said streams is called Middle branch or Brush creek.

There was filed with the drain commissioner of Allegan county an application to locate and establish a drain commencement, route and terminus of which were:

“Commencing about 25 rods north of S. E. corner of section 25, town one north, range 15 west (Lee), thence in S. W’ly course to center of N. E. 14, section 36, town 1 north, range 15 west, thence in semi-circle from N. W. corner to S. W. comer W. Va S. W. 14, section 31, town 1 north, range 14 west (Cheshire), thence in S. W’ly course to Mud lake in Columbia township, Van Burén county. Channel between Mud lake and Deer lake to be cleaned out; then starting at outlet of Deer lake in N. E. 14, section 2, Columbia township, Van Burén county, running thence N. W’ly along course of creek (Brush creek) to Lee station.”

It is not claimed that this application was in anywise insufficient.

The said drain commissioner also received an application for cleaning out, deepening and extending a township drain known as “Cheshire No. 19” which traverses, sections 27, 28, 29 and 30 of Cheshire township and has its outlet at a point on the southwest quarter of section 30, which point is approximately the upper terminus of the drain sought to be established under the application first above mentioned. As to “Cheshire No. 19” the commissioner made a first order of determination but no further proceedings were had, and plaintiffs say that the application for this drain was wholly insufficient and void.

Acting upon the application first above mentioned the drain commissioners of Allegan and Van Burén •counties, after a survey, made a first order of determination by which the drain was designated “Brush creek drain” and from the description of the drain as determined by the order it appears that the commencement is in section 21, Cheshire township, its route embraces substantially the routes of both of said applications, and its terminus is near Lee station. In the’ proceedings of the Brush creek drain there is no reference to “Cheshire No. 19,” and from the record it seems that the route of the Brush creek drain was extended to include the route of “Cheshire No. 19.” This extension was over three miles in length. Right of way for the drain was acquired by releases and by condemnation proceedings except (by an oversight) across a lot about five rods in width near the outlet and owned by one of the plaintiffs. The copy of the application filed with the application for the appointment of special commissioners for the condemnation proceedings was not certified as required by 1 Comp. Laws 1915, § 4883. Final order of determination was filed June Í9, 1918. On August 10. 1918, when the commissioners were about to let the drain, the bill was filed. Eight individual plaintiffs are owners in severalty of land along Black river below the outlet of the proposed drain. Two of the plaintiffs are the township of Lee and its highway commissioner. The remaining plaintiff is J. Henry Amt Co., a corporation, owner of the lot across which right of way was not obtained. The defendants are the drain commissioners. After the hearing decree was entered dismissing the bill as to all plaintiffs except the J. Henry Amt Co., and as to it the decree provides:

“It is ordered, adjudged and decreed and the court doth order, adjudge and decree that the temporary injunction stand until the defendant drain commissioners secure the right of way of J. Henry Amt Co. and correct the proceedings in the probate court as to_ the certified copy of the application. And upon filing proof with the clerk of the court in compliance with these conditions that the temporary injunction in. said cause be dissolved and the bill of complaint dismissed and that the said drain commissioners are hereby permitted to take such steps as they are advised are necessary to obtain such right of way. Notice thereof to be served upon Clare E. Hoffman, as attorney for said J. Henry Amt Co.”

The plaintiffs have appealed.

The proposed drain not crossing their lands and not being parties to the drain proceedings, the eight individual plaintiffs have a remedy by injunction (Bruggink v. Thomas, 125 Mich. 9; 1 Comp. Laws 1915, §§ .4884, 4908), respecting their claim that the construction of the drain will cause flooding of their lands along the river beyond the extent to which they were previously flooded, to their damage. This question is to be considered on the merits. It seems that by constructing this drain along the line of Middle branch or Brush creek and along the line of the township drain, “Cheshire No. 19,” no additional territory is to be drained. Black river is now the outlet for the water of those streams. . The bottom width of the drain is to be 2 feet at the upper end which width is to be gradually increased, to 16 feet at the outlet. There was an abundance of testimony respecting the fall of the proposed drain, the fall of Black river, capacity of the outlet, height of river banks, character of bottom lands, the sinuosities of the stream, and the flow of the water. The court was favored by opinions and computations respecting the probable result of the construction of the drain. There was sharp-conflict as to opinion and conflict as to fact. We have read the record with care. We think the proposed improvement will not have the effect of flooding these plaintiffs’ lands beyond the extent to which they were previously flooded and we are confirmed in the opinion by the action of the trial judge who saw the witnesses and heard their testimony. As to these plaintiffs the bill was properly dismissed. Smafield v. Smith. 153 Mich. 270. Complaint is made respecting rulings by the circuit judge before whom this case was heard holding certain testimony incompetent. The testimony offered even if competent was largely cumulative. The substance of it is in the record. A consideration of it would not affect the result.

It is not contended that the plaintiffs township of Lee and its highway commissioner were not parties to the drain proceedings and subject to the provisions of 1 Comp. Laws 1915, § 4908 (quoting in part):

“That the proceedings in establishing any drain shall be subject to review upon certiorari, as herein provided. Notice of such certiorari shall be served upon the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk. * * * If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”

By the filing of a valid application for the Brush creek drain the commissioners acquired jurisdiction. The extending the line of the drain upwards of three miles beyond the route described in the application did not make the drain proceedings void. The most that could be claimed for it is that it was an irregularity. Hackney v. Elliott, 23 N. D., at page 389 (137 N. W. 433); Northern Ohio R. Co. v. Hancock County Com’rs, 63 Ohio St. 32 (57 N. E. 1023); McCleery v. Zintsmaster, 187 Ind. 37 (114 N. E. 625); Chapman & Dewey Land Co. v. Wilson, 91 Ark. 30 (120 S. W. 391). Other irregularities are also claimed by these plaintiffs. But as to all these claimed irregularities, these plaintiffs being parties to the drain proceedings, the statute above quoted is controlling.

The correction of the drain proceedings as to the plaintiff J. Henry Amt Co. was properly decreed. See Sturm v. Kelly, 120 Mich., at page 689. And the portion of the decree above quoted fully protects its rights. See 1 Comp. Laws 1915, § 4886.

The decree of the circuit court will be modified as to costs. The plaintiff J. Henry Amt Co. will recover of the defendants the costs of the clerk and sheriff to be taxed together with an attorney fee of $15, as provided in the decree, and may have execution therefor. Of the remaining plaintiffs, defendants will recover the costs of their witnesses to be taxed together with an attorney fee of $15, as provided by the decree, and may have execution therefor. The provision of the decree by which the costs of plaintiff J. Henry Amt Co. were to be set off against the costs of defendants will be eliminated.

The decree as modified is affirmed, with costs of this court to the defendants.

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


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    HUSTINA v. INDIAN REFINING CO.
    Boundaries — Ejectment—Assumption of Surveyor — Evidence—■ Great Weight of Evidence — New Triad.
    In ejectment proceedings, where plaintiff’s claim that defendant’s building encroached upon his lot was supported only by the testimony of a surveyor which was based upon his assumption that his starting point was correct, although he admitted there was nothing in the original plat to show where to start from or any witness trees, and defendant's claim1 that its building was at least 16 inches south of the line of an old boundary fence between its lot and plaintiff’s (was supported by the positive testimony of ten witnesses, a verdict for plaintiff, held, to be against the great weight of the evidence.
    Error to Oakland; Covert (Frank L.), J.
    Submitted April 15, 1920.
    (Docket No. 85.)
    Decided June 7, 1920.
    Ejectment by George Hustina against the Indian Refining Company. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Geer & Martin, for appellant.

      A. Floyd Blakeslee, for appellee.
   Clark, J.

Defendant reviews a judgment upon verdict in favor of plaintiff in an action of ejectment, asserting that there was error in the denial, of defendant’s motion for a new trial on the ground that the verdict was against the great weight of the evidence. Plaintiff was the owner of lot 4, Baldwin’s addition to the city of Pontiac. The lot was on the' west side of Linfear street. The plat of the addition indicated that the lot had a width or frontage on the street of 196 feet. Its length approximated 900 feet. The side lines of the lots will be treated as running east and west, which is substantially correct. On the south, lot 4 is adjoined by lot 5, of which defendant was a tenant in possession. Defendant erected a building and plaintiff claims that the building encroaches upon his lot, that the northwest comer of the building is on the line between the lots and that the northeast corner of the building is 27 inches north of the line. Plaintiff testified that he did not know where the line was. In plaintiff’s behalf a surveyor was then sworn who stated that he determined the north line of lot 4 from some old fence posts there found and stated:

“Part of the way the ruins of an old fence, the posts, part of them remained, so it was easy to pick up the line from end to end. The railroad track crossed diagonally about in the center of lot 4. The larger part of the posts on the north line were on the east side of .the track, but on the south iine a part of them, about half of them, were on the west side. * *' *
“A. On the north side of the lot I found seven posts along there at intervals, along the line.
“Q. And I will ask you if you found any at the intersection of the north line and Linfear street?
“A. Yes, sir; very good post there. The front fence of the lot is attached to that post, also the north fence, fence running to the north along the north line and along the street, the two intersect at that point.
“Q. And I will ask you if that is the monument from which you started your measurements along the street?
“A. Yes, sir; after verifying it from the other posts along the line. * * * I think I had a drawing from the original plat of the land, because I went and found the original plat of the land so as to know how large the lot was. That is, the original plat that was made by Baldwin. That original plat did not show me anything where to start from or what.the witness trees were. Plats never have stakes in every place and at every corner, and if they do have they are wooden stakes that would disappear in a few years. As far as the map was concerned, there was the drawing and the length of lines; that was all. . * * *
“Q. Now, when and where and by whom was this post put where you started to measure along the west side on Linfear street?
“A. The original boundary fence once included the entire lot.
“Q. When, was that put in there?
“A. I have no means of knowing, except it was very old and nearly all gone. I do not know by whom it was put there. I did assume that corner was the original corner of lot 4.” * * *

Language used in Fisher v. Dowling, 66 Mich., at page 371, is applicable here:

“In this case, moreover, the surveyor gave no testimony indicating that he started correctly, or that his survey was such as should bind anyone. We have had frequent occasion to condemn the assumptions of surveyors in determining lines and landmarks according to their own notions. They have no such right, and their assumptions are not lawful.”

See, also, Stewart v. Carleton, 31 Mich. 270, and Diehl v. Zanger, 39 Mich. 601.

There had been between the lots a line fence of posts and wire the remaining parts of which were largely removed when defendant erected its building.. Of this fence it was said: “Twenty-one years ago it. was quite an old fence” — “it had been kept in same location” and “it was there to indicate the line between lots 4 and 5.” We think it is not disputed that by determining the line and location of this fence the boundary line between the lots will be established. Toward the back of the lots several posts of the fence in part remained. Plaintiff claims that the building* was projected across this fence line to the extent above mentioned. Defendant contends that the north line of the building is 16 inches south of the old fence line. Plaintiffs witness, the surveyor, in January when the snow was from one to two feet deep attempted to determine the line of the fence. He testified that he measured from a post of the north fence of lot 4, which he assumed to be the correct line, south along the west side of Linfear street 196 feet, and, there found, in the earth and grass, the end of an old post which he lined up with remains of other posts toward the back of the 'lot, some of which he found by digging, and thus reached the conclusion that defendant’s building was across the fence line and upon plaintiff’s lot as claimed. The surveyor further testified that he went over this line again in March and verified his conclusion. Defendant had positive testimony of 7 men who assisted in constructing the building, that the north wall of the building had been placed 16 inches south from the old fence and that the building was at least 16 inches away from the old fence line. Another witness who had known the fence for 10 years and had torn it down testified that the fence line was 17 inches north of the north line of the building. Other witnesses, two of whom had been familiar with the fence for 17 and 21 years respectively, from broken ends of fence posts found in the earth, from parts of the fence remaining and from a standing tree which had been used as a post of the fence and in which pieces of fence wire were embedded, determined and testified that no part of defendant’s building was upon plaintiff’s land. The verdict is against the great weight of the evidence. Hintz v. Railroad Co., 132 Mich. 305; In re McIntyre's Estate, 160 Mich. 117; Brown v. Railroad Co., 183 Mich. 574; Barger v. Bissell, 188 Mich. 366; Malloy v. Railway Co., 192 Mich. 344; Miller v. Railway, 200 Mich. 388.

Judgment is reversed with costs and a new trial granted.

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


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      In re WORTMANN’S ESTATE. WORTMANN v. GRUEBNER.
    Descent and Distribution — Next op Kin — Preferred Class— Statutes.
    In a contest between tbe paternal grandmother and the maternal grandmother for the estate of an intestate who left no issue, widow, father, mother, brother, sister, nor child of brother or sister, his estate consisting of real property inherited from his father, descended to Ms paternal grandmother, because, although they are kin of the same degree, under 3 Comp. Laws 1915, § 11799, the maternal grandmother, not being of the blood of the ancestor ,from whom the estate descended, was excluded.
    Error to Wayne; Mandell (Henry A.), J. Submitted April 8, 1920.
    (Docket No. 18.)
    Decided June 7, 1920.
    Bernard J. Wortmann presented his final account as administrator of the estate of Joseph H. Wortmann, deceased, and asked for an order of distribution. The account was allowed and order of distribution made in the probate court, and Elizabeth Wortmann appealed to the circuit court. Judgment affirming the probate order. Plaintiff brings error.
    Reversed.

      James Swan, for appellant.

      Clement C. Y erkes, for appellee.
   Clark, J.

Joseph II. Wortmann, aged 12 years, died seized of property described: A 1/5 interest in lot No. 7, subdivision of outlot 29, the St. Aubin farm, and a 1/5 interest in lot- No. 1, subdivision of lots 1, 2, 8, and 4 of the subdivision of outlot 30 of St. Aubin farm, which had come to him by inheritance from his father. None of the preferred class, designated .by subdivisions 1 and 2, 3 Comp. Laws 1915, § 11795, survived. The surviving next of kin were the plaintiff, paternal grandmother, and the defendant, maternal grandmother. The probate court of Wayne county determined that the property should descend in equal shares to the two grandmothers. The plaintiff appealed to the circuit court. The circuit court sustained the order and dismissed the appeal. The sections of the statute which affect the question are:

“If the intestate shall have no issue, husband, widow, father, mother, brother, sister, nor child of brother or sister, his estate shall descepd to his next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.” 3 Comp. Laws 1915, § 11795, subd. 3.
“The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case, all those who are not of the blood of such ancestor shall be excluded from such inheritance.” 3 Comp. Laws 1915, § 11799.

The grandmothers are of the same degree of kindred. The statutory exclusion is effective only in the event that there are more than one of the same class or degree of kindred, at least one of whom is not of the blood of the ancestor from whom the estate’ had come by inheritance. In Lyon v. Crego, 187 Mich. 625, where this question was fully considered by Justice Bird, it was said that as between paternal cousins and maternal cousins, all being of the same class or degree of kindred, the maternal cousins, not being of the blood of the ancestor from whom the estate had come by inheritance, would be excluded. See, also, Ryan v. Andrews, 21 Mich. 229, and Rowley v. Stray, 32 Mich. 70. The maternal grandmother is excluded. The estate devolved solely upon plaintiff, the paternal grandmother.

The judgment is reversed and a new trial granted.

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


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    MILBOURN v. MAATSCH.
    1. Fraud — Rescission of Contract — Land Contracts — Damages —Evidence—Sufficiency.
    On a bill to annul a contract for the purchase of a farm and personal property thereon because of the alleged fraud of defendants in selling the same, and to obtain a decree for damages, where plaintiffs remained in possession of the property without offering to return the same, on plaintiffs’ failure to establish fraud the bill was properly dismissed.
    2. Appeal and Error — Remand of Case to Law Side Denied Where No Fraud Shown.
    The suggestion of plaintiffs that the case be remanded and transferred to the law side of the court that plaintiffs, on the theory of an affirmance of the contract, might have opportunity to recover damages for fraud, must be declined by this court, being of opinion that fraud has not been shown.
    Appeal from Eaton; Smith. (Clement), J.
    Submitted April 23, 1920.
    (Docket No. 14.)
    Decided June 7, 1920.
    Bill by Alexander Milbourn and another against Henry H. Maatsch and another for the rescission of a land contract, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Robert S. Ballard and John /. Carpenter, for plaintiffs.

      Peters & Marshall, for defendants.
   Clark, J.

On August 25, 1917, plaintiffs with defendants entered into an executory land contract for the purchase of a farm in Eaton county. For a named consideration there was included in the contract with the land other property, consisting of horses, cattle, tools, implements and “crops, harvested and unharvested.” As a down payment plaintiffs assigned to defendants their interest in a land contract covering a house and lot in Lansing. About-October 1, 1917, plaintiffs took possession of the farm and the other property and defendants entered into possession of the Lansing property. On March .5, 1918, plaintiffs filed their bill of complaint alleging fraud on the part of the defendants in the making of the contract respecting the farm and the chattels and asking that such contract be held void and set aside and that an accounting be had. Plaintiffs, although asking relief as stated, continued in possession and use of the farm and were so in possession at the time of the hearing. They had cut trees, removed fences, grown crops, sold or disposed of a large part of the personal property, had paid no taxes and had resisted efforts of defendants to get> possession of the farm and the personal property. The bill of complaint does not allege an offer to restore possession of the farm nor a tender back of the personal property. December 1, 1918, defendants answered denying at length all charges of fraud, and by cross-bill, asked affirmative relief. The cause was heard in January, 1919. The trial court filed an opinion from which we quote:

“The bill in this cause was filed by plaintiffs to annul a contract for the purchase of 'a farm and personal property thereon because of the alleged fraud of the defendants in selling said farm to plaintiffs, and to obtain a decree for damages. The bill states a case which seems to me to be a cross between a bill in chancery, and a declaration on the law side of the court. * * *' It is apparent from the bill that some of the relief asked for could not be granted in chancery but -could be relieved in a suit at law, if at all.
“From the proof I am of the opinion that the plaintiffs have failed to substantiate any fraud or deception or misrepresentation on the part of the defendants which entitles them to the relief they ask, and. it is my judgment that the bill should be dismissed with costs:
“The defendants have filed a supplemental answer and cross-bill praying for relief, which I infer is intended to be in the nature of a foreclosure of the contract. While the cross-bill is somewhat meagerly drawn, it is possible that it might be treated as sufficiently strong enough to support a foreclosure decree. * * * I feel that the cross-bill in the answer should be dismissed.”

Plaintiffs then made a motion to set aside the opinion of the court and a motion for leave to amend the bill of complaint and a motion for a rehearing. In denying these motions we find no abuse of discretion. Decree was entered in accordance with the opinion filed. Plaintiffs have appealed. It will profit no one to review the evidence upon this issue of fact. We think the record sustains the conclusion reached by the trial court. Counsel for plaintiffs here suggest that the cause be remanded and transferred to the law side of the court, seemingly that plaintiffs, on the theory of an affirmance of the contract, may have opportunity to recover damages for fraud. Being of the opinion that fraud has not been shown, such suggestion must be declined. The decree'is affirmed, with costs to the defendants. •

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