text:
    KUNZE v. JONES.
    1. Contracts — Building Contract — Architect’s Refusal to Issue Certificate — Breach of Contract.
    In proceedings by a contractor to enforce a mechanic’s lien, where the evidence shows that there was no reasonably unsatisfactory work performed by the contractor, held, that the architect’s refusal to issue certificate for payment for work done, in accordance with the terms of the contract, was captious, unreasonable, and arbitrary, justifying plaintiff in quitting the job.
    2. Same — Performance—Rejection—Estoppel.
    An owner, or architect, as agent of the owner, may not stand by day after day, and see the work on a building go on without objection, and then, after the work is completed, reject it as unsatisfactory.
    3. Mechanic’s Liens — Overstatement of Claim — Validity.
    A contractor may include in his claim of lien on a building the amount due from him for materials furnished, and it is not invalidated because another contractor, who succeeded him on the job, without notice to plaintiff, paid for same.
    Appeal from Wayne; Hally, J.-
    Submitted February 1, 1918.
    (Docket No. 172.)
    Decided March 27, 1918.
    Bill by Arthur E. Kunze against Mary E. Jones to foreclose a mechanic’s lien. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      Earl I. Heenan, for plaintiff.

      Geer, Williams & Martin, for defendant.
   Stone, J.

Appeal from decree dismissing bill of complaint. The plaintiff filed his bill of complaint to foreclose a mechanic’s lien which he had filed against the lands and building of defendants. By the contract, which was made in writing on October 3, 1913, between plaintiff, as contractor, and F. P. Jones and Mary E. Jones, his wife, as owners, plaintiff was to do, to the satisfaction, of the defendants’ architect, acting as the agent of the defendants, all the labor and furnish the material for the concrete work, brick work, iron work, and furnish the material and construct tile drains and inside sewers, and perform the labor of setting all the stone, work for a certain build- • ing then and there about to be erected by the said F. P. Jones and Mary E. Jones on certain described land in the village of Highland Park, in consideration of the sum of $1,425 to be paid by the said defendants, who were the owners of said premises as tenants by the entireties. F. P. Jones died pending the case, and the title to the property has vested in Mary E. Jones as survivor.

By the terms of the contract, the plaintiff, as such contractor, was to proceed in a prompt and diligent manner and wholly finish the said work, but the time limit in which the contract was to be'completed was left blank.

The 10th clause of said contract was as follows:

“Should the contractor at. any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on his part herein contained, such refusal, neglect or failure being certified by the architect, the owners shall be at liberty, after three days’' written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground, for such action, the owners shall also be at liberty to terminate the employment of the contractor for the said work and to enter, upon the premises and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor, he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under the contract shall exceed the expense incurred by the owners in finishing the work, such excess shall be paid by the owners to the contractor, but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owners. The expense incurred by the owners as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through ■ such default, shall be audited and certified by the architect whose certificate thereof shall be conclusive upon the parties.”

The 13th clause was as follows:

“And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owners to the contractor for said work and materials shall be Fourteen Hundred and Twenty-five ($1,425.00) subject to additions or deductions on account of alterations as hereinbefore provided, and that such sum shall be paid in current funds by the owners to the contractor in installments, as work progresses, on certification from the architects, reserving 15 per cent, until the •building is entirely completed. It being understood that the final payment shall be made within 60 days after this contract is completely finished.”

The plaintiff started the work on or about October 6, 1913, and had made such progress that on or about October 16th the architect gave him a certificate for $500, the work having been performed in a manner reasonably satisfactory to the architect up to that date.

This amount was paid to the plaintiff by the owners. Plaintiff started veneering above the foundation, and continued to have work done on the building intermittently until November 22d.

Plaintiff claimed that some of the delays were caused by the carpenters, over whom he had no control; that some delays occurred on account of his workmen not working steadily.

The plaintiff testified that he saw the architect on the job frequently, and that he never complained of the plaintiff’s work being unsatisfactory until plaintiff asked him for a second certificate.

Upon the hearing, there was a sharp conflict in the testimony as to the progress of the work at this time. The plaintiff testified:

“After the first payment of $500 was made to me I veneered the two sides of the building, and practically all the rear, and a good third of the front with pressed brick. I put in porches and studdings for all stone steps.”

It was the further claim of the plaintiff that just prior to November 28th he called at the architect’s office several times to get a certificate for more money, but could not find the architect there, so he wrote him a letter requesting a certificate for payment.

Plaintiff finally had a conversation with the architect in which the latter stated to him that the work which he had done was unsatisfactory, and the architect refused to give the certificate requested by the plaintiff; that plaintiff then asked the architect to point out to him what part-of the work was unsatisfactory, and also told the architect that if there were any unsatisfactory things he would be glad to remedy them.

The plaintiff further testified that after going to the architect’s office several times more, and not finding him in, he left at the office the following paper to be signed by the architect:

“Detroit, Mich., Nov. 28,1913.
“A. E. Kunze:
“I hereby agree to accept brick work that is done on 2-family flat building located on Cortland Ave. being built for F. P. Jones to date. Except.”

But as claimed by the plaintiff, the architect never pointed out to him what part of the work was wrong or unsatisfactory and in- fact refused to do so; that at the time of the plaintiff’s request for this second certificate he had become liable for, and had expended for labor and materials the sum of $1,244.39; that plaintiff had actually paid out all of this amount, except $340.39; that he had received $500; so that there was at this time actually due plaintiff $744.38, less the amount which he owed for materials, which was $340.39, or a net amount due plaintiff of $403.99; that the building at this time was substantially completed, the work above described having been done.

The plaintiff further claims that to finish the work at that time the labor would not amount to more than $75; that there were enough of the common brick on the ground to complete the building; but that a few more pressed brick would be needed.

At this time plaintiff mailed a letter requesting a payment of $650. The architect replied as follows:

“Detroit, Mich., Mon., Dec. 1st.
“A. E. Kunze,
“Dear Sir: In regard to your communication of Nov. 28th, I will not give estimate for $650, or any part of it, nor will I accept brick work, that is far from being satisfactory, I might say rotten, and furthermore, I will say that unless you show your willingness to proceed with the work within 48 hours from receipt of this letter, I will use other means to finish the work. Yours truly,
“Ulysses E. Cloutier.”

To which the plaintiff replied as follows:

“Detroit, Mich-., Dec. 3, 1913.
“Mr. Ulysses E. Cloutier,
“Dear Sir: In regard to your communication of Dec. 1st, I refuse to go ahead with said work, unless you make the payment as I demanded, or according to contract. If not I must find some other way for collecting them, by way of liens, for people that have furnished material there, and myself also.
“I remain,
“A. .E. Kunze.”

Plaintiff claims that the architect did not point out to him the parts of the work which the architect considered unsatisfactory, and did not make the payment requested, or any part of it, and that the plaintiff then left the work.

On December 4, 1913, the architect let the balance of the work to Axel Carlson, who was a carpenter contractor, and who had the carpenter work on the job. Carlson began work on or about December 4th. There w,as no advertising for bids, but the architect simply gave Carlson a contract to complete the job for the difference between the original price with plaintiff ($1,425) and the amount plaintiff had received ($500), or $925. The $340.39 owing by plaintiff for material was paid by. Carlson, and he received $150 for his services. This second contractor finished the work without making any changes in that which had been done by the plaintiff, and of which the architect had complained. There was other testimony corroborative of that of the plaintiff both as to the character and progress of the work at the time the plaintiff left the job.

On behalf of the defendant it was claimed, and the architect testified that under the plaintiff’s contract the work dragged and that for “three weeks at a stretch” plaintiff had no men on the job; that if everything had gone smoothly the entire job ought to have been completed in 30 days; that after the work was finished up to about the first floor joists, that part of the work having been performed in a manner reasonably satisfactory to the architect, plaintiff was given a certificate for $500, which was paid; that after this payment the work done was unsatisfactory to the architect. On cross-examination the architect testified as follows:

“I don’t just remember when I first told Mr. Kunze that the work was unsatisfactory. It was shortly before I wrote him that letter on December 1st; about a week or so, may be a few days, for all that I can remember. I saw Mr. Kunze at the office. I told him in .my own office. I never told him on the job. I should judge Mr. Kunze had been hn the job about two or three weeks when I told him this.
“Q. That was the first time that you told him that, that work was unsatisfactory to you?
“A. No, I told him that before he quit, but after he quit I did not see him very often.
“Q. When did you tell him?
“A. I told him on the job, before the work was stopped. Just shortly after the work was stopped. I told him in what respects the work was unsatisfactory. He didn’t say much. He said he would fix it, but he never did anything with it. He didn’t start to fix it. He didn’t ask me to point out where it was wrong. I pointed it out to him myself.”

Witness had before testified that the plaintiff’s work was unsatisfactory to him, in that the joints in the veneering were all uneven, crooked and all thicknesses. The following appears in his cross-examination:

“Q. Was any of the work that was done by Mr. Kunze torn out? Did you tear that work down that was crooked, or not.
“A. No, I did not. They are there yet. I terminated Mr. Kunze’s contract on account of his refusal to go ahead with the work.”

It is apparent that the controlling question in the case is, Who first broke the contract? It is the claim of the plaintiff that the architect, by his unreasonable, and captious conduct, compelled the plaintiff to abandon the contract; and that the plaintiff was not in default either in the progress or character of the work done by him, and section 14808, 3 Comp. Laws 1915, is relied upon. Ifc reads:

“When the owner, part owner or lessee, shall have failed to perform his part of the contract, and by reason thereof the other party shall, without his default, have been prevented from completely performing his part, he shall be entitled to a reasonable compensation for as much thereof as he has performed, in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly.”

We have carefully read the testimony, and are of • the opinion that there was no reasonably unsatisfactory work performed by the plaintiff; that the work that he had done was reasonably good work. The architect testified:

“About all the trouble with the veneering that I could see was that the veneering was not straight, and the joints were not straight. There was no other trouble with the veneering,”

and no change was made in that work when the new contractor took hold of the work. Furthermore, an experienced bricklayer, apparently a disinterested witness, afterwards examined the work to determine the character of the brick work, and he testified: “I consider the brick work a very good job, as the run of work runs.”

We think that the plaintiff is correct in the claim that at no time during the period between the first payment, and the request for a second payment, was the plaintiff directly or indirectly, by intimation or otherwise, informed or led to believe by the architect that the work which he had done, and was doing, was unsatisfactory. By the terms of the contract payments were to be made in installments as the work progressed, on certificates of the architect.

After the plaintiff had received $500, and after an interim of about 37 days, and after, as he claims, he had invested $1,244.39 in labor and material for defendant’s building, he asked for the sum of $650, or if not this amount then “according to the contract.” He was refused that sum “or any part of it.”

It seems to us that at the time of this request plaintiff was reasonably entitled to a payment under the contract, of at least some sum approximating the amount requested. The architect was frequently on the job.

As was said by this court in Schliess v. City of Grand Rapids, 131 Mich. 52, 62, the law would not permit defendant or the architect, her agent,

“To see the work go on, to ratify it day by day and week after week * * * and then say, when the work is done, ‘you have not complied with the contract.’ The time to accept or reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it.”

The learned trial judge dismissed the plaintiff’s bill of complaint, among other things, for the reason that by the terms of the contract the plaintiff subjected

“Himself to the conclusions of the architect respecting the character of the work, but was subjecting himself to the conclusions of the architect in the case that the architect determined to put him off the job. * * * Now I do know that in some instances the courts have pointed out that an unreasonable demand must not be insisted upon by the architect, under these circumstances, and if an unreasonable demand is insisted upon by the architect, under these circumstances the court of equity has jurisdiction to set aside his unreasonable demands and do justice between the parties. That is, I think, the doctrine that is laid down in Gier v. Daiber, 148 Mich 190. * * * I personally am obligated to follow that, and I am going to follow that so far as the demands of the architect are concerned, but there is another part of the contract here, which portion of the contract, and the action of the architect under it, has not been met with any sufficient testimony; any testimony that to me would satisfy me that a conclusion different from the one that I have reached should be reached. In the event of the abandonment of the work, or in the event of the contractor being put off the work, it is up to somebody to complete the work, and on the completion of the.work the architect has to certify and audit the account. In this case the architect has certified and audited to the owners the account of this second contractor to the extent of $986.15. He has in like manner sworn that it was necessary to use that sum of money to complete the work, and buy the material and pay for the material that had been left unpaid for, by the other contractor.”

The chancellor held that the testimony of the architect had not been met by the plaintiff. It should be borne in mind that the architect testified: “I terminated Mr. Kunze’s contract on account of his refusal to go ahead with the work.” So the question recurs, Was the plaintiff justified in quitting the job? If he was justified in his claim that, under the contract, he was entitled to a certificate from the architect for an installment of payment, in the progress of the work. and was captiously, unreasonably and arbitrarily refused such certificate by the architect, and this was the reason for quitting, then plaintiff has brought himself under the provisions of the section of the statute above quoted, and is entitled to relief, without reference to what was subsequently done by the architect and the defendant. In our opinion the plaintiff has sustained the burden of proof on this branch of the case by a clear preponderance of the evidence.

It is stated by counsel for defendant that plaintiff in his claimed lien made an overstatement of claim. We think that the claim was authorized under the holding of this court in Halpin v. Garman, 192 Mich. 71. The contractor, for his own protection, had the right to include in the amount he claimed, the amounts due from him for materials furnished. At the time of the filing of the statement of account and lien, plaintiff had not paid, nor was there evidence that he had notice that the outstanding bills had been paid by the defendants.

' We think that the plaintiff is entitled to a decree, as prayed for, in the sum of $403.99 as of December 1, 1913, with interest and costs to be taxed; and that the decree below should be reversed, and a decree entered in this court accordingly.

Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, C. J., and Kuhn, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
      In re HOFFMAN’S ESTATE. FOOTE v. HOFFMAN.
    1. Executors and Administrators — Services—Parent and Child —Presumptions.
    The presumption that services rendered to a mother by a daughter are gratuitous is not of itself destroyed by the fact that they were not members of the same household, yet this fact weakens the presumption, and it may be regarded as giving support to other facts tending to establish an implied contract.
    2. Same — Implied Contract — Question eor Jury.
    Evidence that plaintiff, a married woman living in her own home in the same city as her father and mother, in response to her mother’s request, gave up her own home to care for her mother, who promised her, in her father’s presence, that she should never regret it, presented a question for the jury as to whether there was an implied promise to pay for the services so rendered.
    Error to Kalamazoo; Sharpe, J., presiding.
    Submitted January 31, 1918.
    (Docket No. 37.)
    Decided March 27, 1918.
    Sarah H. Foote presented a claim against the estate of John A. Hoffman, deceased, for services rendered. The claim was disallowed by the commissioners and claimant appealed to the circuit court. Judgment for claimant. Hugh G. Hoffman, executor, brings error.
    Affirmed.

      Harry C. Howard, for appellant.

      Alfred S. Frost (Prentis & Mulford, of counsel), for appellee.
   Stone, J.

This litigation grows out of a claim presented to the commissioners on claims in the estate of John A. Hoffman, deceased, in the probate court for the county of Kalamazoo. The claim was disallowed by the commissioners, and an appeal was taken to the circuit court by the claimant, who is the daughter of John A. Hoffman and Lizzie R. Hoffman, both deceased. The claim was for personal services rendered to the said wife of Mr. Hoffman during her last illness and the care of the Hoffman household, as well as for services rendered to said John A. Hoffman after Mrs. Hoffman’s death.

In the circuit court the claims, as finally submitted to the jury, were as follows:

(1) Services as nurse in caring for Lizzie R. Hoffman, wife of John A. Hoffman, and as housekeeper for John A. and Lizzie R. Hoffman from January 7, 1911, to February 26, 1912, date of her death, 59 weeks at $25 per week............$1,475

(2) To services as housekeeper for John A. Hoffman from February 27, 1912, to May 4, 1914, 113 weeks at $10.00 per week.................. 1,130

(3) To services as nurse in the care of John A. Hoffman, and as housekeeper from May 4, 1914 (when confined to his bed), to October 23, 1914, date of his death, 25 weeks at $25.00 per week.. 625

The jury found in favor of the claimant upon the first claim, including interest from March 14, 1916, in the amount of $590.

They allowed nothing upon the second claim. Upon the third claim they allowed for 25 weeks at $10 per week, $250. It may as. well be stated here that the allowance on this last claim of $250 was set aside by the trial court, and judgment was finally entered for the claimant for $590 only, upon the first claim.

A motion to direct a verdict in behalf of the executor was made, but the decision thereon was reserved under the provisions of Act No. 217, Pub. Acts of 1915 (3 Comp. Laws 1915, § 14568 et seq.), and was treated as a motion to enter judgment notwithstanding the verdict of the jury. From the said judgment the executor has brought the case into this court by writ of error, and the only assignment of error which was argued in this court was, that under the evidence there could be no recovery, and a reversal is asked on that ground only; it being conceded by the appellant that if the claimant, on the proofs, as matter of law is entitled to recover, the judgment is a satisfactory one and the executor does not care to have it disturbed.

The evidence discloses that John A. Hoffman was the steward at the Kalamazoo State Hospital until, or nearly until, the time of his death. At the time of the transaction here involved his family consisted of himself and wife. He had two adult children, the elder, Mrs. Foote, claimant here, residing with her husband, George E. Foote, in the city of Kalamazoo, and Hugh G. Hoffman, a son, the executor of his will, a traveling salesman, married and residing in the city of Chicago. The Hoffman homestead, then occupied by the deceased and his wife, was located on West street in the city of Kalamazoo.

In the month of January, 1911, Mrs. Hoffman was advised by her physicians that she was afflicted with cancer and probably could live but a short time. At that time Mr. and Mrs. Hoffman were residing alone in the family homestead, Mr. Hoffman himself taking most of his meals at the State Hospital and sleeping in his apartments there considerable of the time. Mrs. Hoffman, upon learning her real condition from the physicians, telephoned her daughter, Mrs. Foote, the claimant, who, with her husband, lived in a house a few blocks away which belonged to Mrs. Hoffman, and from whom they rented. The principal evidence relied upon to sustain the implied contract is talk which occurred when Mr. and Mrs. Foote went to the family home after receiving the telephone message from Mrs. Hoffman. The only testimony on this subject is that of the husband of the claimant. It is very brief and may be stated as follows, as testified to by him:

“She asked us to come over, and stated to us that she had been to Battle Creek that day for a physical examination and that while there she was told she had a fatal malady, a cancer. She asked us if we would close up our house and come over and keep house for them, and take care of her as long as she should live. When we got the telephone message I think we were just about to eat dinner and we went over right after dinner.
“The conversation just related took place as soon as we arrived at the Hoffman home. Mr. and Mrs. Hoffman and Mrs. Foote and myself were present. As I remember it, after telling us of her fatal malady and that the doctors had given her about a year to live, she asked us: ‘Will you come over and keep house for us and take care of me, and you will never regret it?’ Mr. Hoffman nodded his head and said: ‘Yes, we want you to come over.’ ”

The evidence shows that two days thereafter the claimant and her husband moved over to the Hoffman home, taking their clothing and personal effects, and' closed up their house, and continued to live in the family home from that date until the time of the trial. The claimant accompanied her mother to Rochester, Minn., and to Detroit, where she went for medical and surgical assistance. Mrs. Hoffman died February 26, 1912. During this time John A. Hoffman paid the usual household allowance for maintaining the table of $80 a month, which had been the amount he had always paid for that purpose during his married life, or at least the latter years thereof. He also paid the fuel, gas, telephone, and other incidental bills of the house. Toward the latter portion of Mrs. Hoffman’s illness there were two trained nurses provided for the care of Mrs. Hoffman, but claimant assisted daily in such care.

As all except the first claim was either disallowed by the jury or set aside by the trial court, we omit from the statement of facts what occurred subsequent to Mrs. Hoffman’s death. There is no question raised that the claimant took charge of the household matters and assisted daily in the care of her mother, whose condition was such that it necessitated the changing of her clothing and bedding frequently; and the claimant, in addition to the other household duties, generally did the washing and laundry work necessary to keep the sick woman in proper condition. No question is raised here that the claimant was not faithful and attentive in the care of her mother, and in her work as housekeeper. It also appeared in evidence, and perhaps should be stated, that Mrs. Hoffman, before her death, had deeded to the claimant and to her son Hugh, the executor here, the house and lot on Cedar street, where the claimant and her husband had been living, subject to a life lease to John A. Hoffman; and it further appeared that, after the death of Mrs. Hoffman, the claimant and her brother, at the request of John A. Hoffman, gave him a quitclaim deed of that property without any actual consideration therefor. It also appeared that, on April 14, 1914, John A. Hoffman made a will, and in that will he devised to the claimant the use of the homestead during her life. The remainder over, and all of his other property were willed to the son, Hugh, the executor and appellant. The inventory of the estate showed that the homestead was of the value of $8,000. All the rest of the estate willed to the son Hugh was inventoried at $8,853.78, while the .debts- allowed against the estate, and unappealed from, were $2,859.82.

The claimant instituted a contest of the will on grounds of mental incompetency and undue influence. The will was admitted to probate in the probate court on January 6, 1915, and the claimant appealed to the circuit court, but the appeal was dismissed on October 28, 1915, before the filing of the claim under consideration.

The evidence shows that the claim, which is the basis of this judgment, was never called to the attention of John A. Hoffman during his lifetime. The rental which claimant and her husband paid for the property on Cedar street was $12 per month. After the death of Mrs. Hoffman, and Mr. Hoffman had agreed to let the claimant and her husband live in the homestead, they moved all of their property out of the house which they had rented, and made their home in what had been the Hoffman family homestead. Mr. Hoffman, during his lifetime, continued to pay an allowance of $30 per month for the table. It also appeared, upon the cross-examination of claimant’s husband, that he gave to John A. Hoffman a note for back rent upon the Cedar street property, which note at the time of the trial had not been paid.

The trial judge filed a written opinion on the motion to enter judgment notwithstanding the verdict; and, omitting portions of the opinion which related to matters that are not now here involved, and, after repeating the substance of the testimony with reference to what was said by Mrs. Hoffman in the presence of her husband and assented to by him, the court said:

“When the proofs were closed counsel for the estate asked that a verdict be directed against the claimant. Decision on such motion was reserved under the provisions of Act No. 217 of the Public Acts of 1915. The cause was submitted to the jury and a verdict rendered and recorded as above stated. Counsel have now further argued such request. The claim of the estate is that the evidence submitted does not establish an express contract, nor is it sufficient on which to imply a contract, when the relationship of the parties is considered.
“Counsel seem agreed that the proofs are not sufficient to support an express contract. The facts relied upon to establish an implied contract are:
“First. That claimant and her husband closed their own home and went to that of her father and mother to look after the home and attend her mother at their request.
“Second. That the mother said to her in the presence of her father that if she would do so, ‘you will never regret it,’ which was assented to by the father.
“In 18 Cyc., at page' 412, the rule is thus laid down:
' “ ‘The courts regard with suspicion, and disfavor claims brought against a decedent’s estate for personal services rendered by relatives, especially where the latter are members of his immediate family or household, as the presumption is that such services, between persons occupying such relations, are intended to be gratuitous.’
“Stress is laid by the writer in the concluding part of the paragraph on the fact that such claims are more favorably regarded when decedent and claimant do not live together. All the Michigan cases cited are, I believe, in harmony with this rule. While there need not be an express contract, in terms, the proofs must be of such a nature that one can be implied, and such proofs must overcome the presumption arising from the family relation. It is not enough to prove that the care was’rendered. The proofs must go further and show that they were rendered under such circumstances as rebut the presumption that they were-gratuitous and justify the inference that the daughter expected to be compensated, and the father expected to pay her for the same. See Ashley v. Smith’s Estate, 152 Mich. 197; Weessies v. Van Dyke’s Estate, 159 Mich. 180; Maynard v. Schrumpf's Estate, 192 Mich. 494.
“Let us now apply the rules just stated to the facts in this case. The claimant and her husband had for many years lived separate and apart from her parents, though in the same city; they shut up their home and went to the parents’ home at their request; they remained there for more than a year, until the mother’s death. They were urged to come, and assured that if they did they would never regret it. These facts, undisputed, seem to me much stronger than those established in the Ashley Case, which the court held justified the jury in finding for the claimant. We have here a valuable service rendered, a service, consisting not only of tender care and gentle ministrations to a mother afflicted with' an incurablé disease, but one in which domestic duties were performed. We find the daughter giving up her own home, her interest in society, the pleasures of life which she had theretofore enjoyed, to attend at the bedside of her stricken mother. This filial love and affection would prompt her to do. But when to this is added her services as a housekeeper, services which could well have been performed by any competent domestic, a different condition is presented, and which, I think, under the proofs, fully justified the jury in finding that such services were rendered under expectation on the part of both father and daughter, that they should be reasonably compensated for.”

It was the argument of counsel for the appellant in this court that there was no evidence from which a contract could be implied. In addition to the authorities cited by the trial judge, counsel for appellant also cite Sammon v. Wood, 107 Mich. 506; In re Abel’s Estate, 173 Mich. 93; In re Colburn’s Estate, 153 Mich. 206; Decker v. Kanous’ Estate, 129 Mich. 146.

In Re Abel’s Estate, supra, we said:

“It is not essential, to a recovery by a child for services rendered to a parent, that a formal contract be established in relation thereto; but if the facts and circumstances attending the performance of the work and in its acceptance are sufficient to rebut the presumption that the services were gratuitous, and to authorize the inference that both parties acted under the understanding that they were to be paid for, the parent is liable.”

Upon this subject an interesting note will be found appended to the case of Hodge v. Hodge, 11 L. R. A. [N. S.] 873 (47 Wash. 196).

Some respectable courts have gone to the extent of holding that a child living separate and apart from a parent, who is himself in comfortable circumstances, is under no obligation to perform services for him without payment, and consequently the presumption against payment does not obtain. 21 Am. & Eng. Enc. Law (2d Ed.), p. 1063, and cases cited.

We do not, however, assent to this view. The better doctrine is that expressed in Wessinger v. Roberts, 67 S. C. 240, the headnote of which case reads as follows:

“The presumption that services rendered to a mother by a daughter are gratuitous, is not of itself destroyed by the fact that they were not members of the same household, yet this fact weakens the presumption, and it may be regarded as giving support to other facts tending to establish an implied contract.”

We think there were certain significant facts in the case which warranted the learned trial judge in submitting the case to the jury. It is undisputed that Mr. Hoffman and his wife were living alone in the homestead. The claimant, a daughter, with her husband, had been living since 1898 in their own rented home, but in the same city. They were sent for by the parents. The request was made as above set forth. It would seem that Mrs. Hoffman, with the consent of her husband, gave herself into the care arid charge of her daughter, who not only took personal care of her mother, but entire charge of the household, and directed its affairs for over one year. The extent and character of the services rendered have been held to be important factors in determining whether they are to be regarded as gratuitous. The circumstances surrounding the rendering of the services here, together with the expression made by the mother and assented to by the father, which we have quoted, were sufficient, in our opinion, to send the case to the jury. We are not aware of any decision of this court which will be disturbed by holding that the judgment, including interest, for the small sum found by the jury, should be affirmed; and the same is affirmed accordingly.

Bird,. Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, C. J.. and Kuhn, J., did not sit.


author: Brooke, J.

text:
    JACOBS v. GLASSER & HOFFMAN.
    1. Master and Servant — Workmen’s Compensation Law — Findings of Industrial Accident Board — Review.
    On certiorari to review an award by the industrial accident board, under the workmen’s compensation law, a finding of the board, supported by evidence, will not be reviewed.
    2. Same.
    An order of the industrial accident board finding that plaintiff was entitled to compensation for partial disability from and after a certain date, at the rate of one-half the difference between his average weekly wage before and after the injury, was merely a statement of the law, of which defendants could not complain, in the absence of any evidence as to partial disability, or the fixing of any definite amount, but leaving this question to future proof.
    Certiorari to Industrial Accident Board.
    Submitted January 15, 1918.
    (Docket No. 76.)
    Decided March 27, 1918.
    Thomas Jacobs presented his claim for compensation against Glasser & Hoffman for injuries received in defendants’ employ. From an order awarding compensation for partial disability, defendants and the Union Casualty Insurance Company, insurer, bring certiorari.
    Affirmed.

      Joseph Sanders, for appellants.

      Carey J. Cole, for appellee.
   Brooke, J.

On June 21, 1915, the claimant was injured, in the course of his employment, by the walls of a ditch caving in upon him. His employers, Glasser & Hoffman, plumbing contractors, of the city of Detroit, duly reported the accident to the industrial accident board and notified their insurer, the Union Casualty Insurance Company, who, on July 5, 1915, entered into a written agreement with claimant to pay him the sum of $9.61 per week, which agreement was duly filed with the industrial accident board. Compensation was paid to claimant in accordance therewith until September 6, 1915, when payments were discontinued, for the alleged reason that the insurer had been informed by medical experts that claimant was then able to return to work and was no longer suffering from any disability. No agreement had been reached with claimant that the compensation should cease, nor had the discontinuance of payments been authorized by the industrial accident board. On October 1Í9, 1915, respondents petitioned the board for an order suspending payments and terminating the period of disability as of the date when payments were discontinued, and, after considerable delay and correspondence, a hearing was had on January 13, 1916. At that time claimant filed with the board a petition to amend the agreement for compensation so as to extend the compensation for a period of 500 weeks at the same rate, and, in support of this petition, filed affidavits of himself and his wife and also affidavits by Dr. Jacob H. Polozker, Dr. Joseph Rottenberg, Benjamin Wolach, and Charles W. Connor. Both parties were represented by attorneys, and the facts were argued at length before the board. Fifteen days were then granted to both sides to obtain and file proofs regarding their respective contentions and the condition of the injured employee. On January 29, 1916, respondents filed with the board the deposition of Helen Gray, taken in Philadelphia, which deposition was in the nature of a report of an operative employed to watch the actions of claimant around the apartments where he resided and where he had been doing janitor work up to the time of his injury, and tended to support respondents’ claim that the claimant’s disability had ceased and that he was able to resume work. After consideration of the foregoing information, and having waited a period of 43 days for the filing of proofs, the board, on February 25, 1916, entered an order denying respondents’ petition and finding that applicant was entitled to recover from respondents compensation at the rate of $9.61 per week from September 6, 1915, to October 19, 1915, and further, that applicant is entitled to recover from respondents compensation for partial disability from and after October 19, 1915, at the rate of one-half the difference between his average weekly wage before and after the injury. Some time later the respondent insurer paid claimant the compensation from September 6th to October 19, 1915, $57.68, but has paid no further sum.

After the order was entered, and on March 1, 1916, respondents filed the depositions of Frank W. Gray and Dr. George E. Chene in support of their contentions, and on the following day claimant filed depositions of Dr. Joseph Rottenberg, Ben Wolach, Martha Laplaunt, Lillian Wolach, Lillian Solomon, and Cora Johnston, also depositions of himself and wife, and on March 4th claimant filed another petition asking for a supplemental order awarding full compensation at $9.61 up to that date. The board has made no further order nor any modification of its former order.

In the affidavit for writ of certiorari, respondents state, among other things:

“VII. That on February 25, 1916, with only respondents’petition (Exhibit B), respondents’ deposition (Exhibit C) before it, the industrial accident board entered an order in the said cause, a copy of which is-hereto annexed. * * *
“VIII. That in the order of the said industrial accident board there is manifest error which ought to be reversed and set aside for the following reasons:
“(1) That the proofs before the board on the 25th day of February, 1916, the date upon which the said •order was entered, conclusively established the allegations of the petition of respondents as set forth in Exhibit B, hereto attached, praying for discontinuance of payments to claimant, and therefore there was nothing before the board upon which could be based its order in relation to future payments to claimant for partial disability.
“(2) That the board exceeded its authority in entering an order without any evidence before it upon which such order might be based.
“(3) That the order of the board as to future payments to claimant for partial disability is opposed to the only evidence that was before the board at the time such order was entered.
“ (4) That if the record before the board was incomplete on the date of such order, the only possible proceeding for the board was to dismiss such petition and the board was in error in not ordering such dismissal.”

The return of the industrial accident board contains-the following:

“13. Said industrial accident board further returns that paragraph seven (7) of respondents’ affidavit for writ of certiorari is very incorrect, and avers that said industrial accident board, on February 25, 1916, when it made its order complained of in this case, had before-it the following papers which it considered in the making of said order:
“(1) A copy of the agreement in regard to-compensation heretofore referred to.
“(2) The petition of the respondents to stop payments. .
“(3) The petition of the applicant asking that the board find that the applicant was permanently disabled and which consisted of the affidavit of the applicant himself, and of the affidavit of Dr. Joseph Rottenberg, and of the affidavit of Beatrice Jacobs, and of the affidavit of Benjamin Wolach, and of the affidavit of Charles W. Connor, * * *
“ (4) The deposition of Helen Gray.
“(5) Said board also had the benefit of the argumerits of attorneys for the respective parties, which arguments were made before the board on January 13, 1916, and said board had before it at that time sufficient papers, proofs and testimony upon which to base an intelligent order, and it believes that the order it made on that date is the order that should have been made in said cause, and avers that it has carefully considered the testimony filed since that time, and that its order would have been the same had all of said testimony been before it.
“14. Said board further returns that, as a matter of fact, its order of February 25, 1916, was merely an order of the board affirming that the agreement between the parties should stand, and indicating that possibly the applicant might be able to work some after October 19, 1915. Under the terms of said order, if said applicant were unable to work after that date, the compensation of said applicant would still continue at $9.61 per week, but if said applicant were able to work some, then his compensation would be reduced proportionately under the terms of the workmen’s compensation law.”

It seems to be the claim of the respondents and appellants that the industrial accident board, at the time of the entering of the order made on February 25, 1916, had before it simply the uncontradicted evidence of the facts established by the deposition of Helen Gray, and that, with simply these facts before it, the board should have entered an order for the discontinuance of payments to the claimant in accordance with the petition filed for such relief. We think it a sufficient answer to this contention to call attention to the return of the board, which sets forth that at the time of the making of the return they had before them the counter-showing of the claimant, and they aver that they have carefully considered the testimony filed, and that the order would have been the same had all the testimony been before them at the time of the making thereof. In our opinion, and in accordance with our previous decisions, we do not believe that the administration of this act should be too technical, and we can see no reason, if the board, with all the testimony before them, return to us that they were of the opinion that the petition should be denied, why it should not be said that there was a question of fact squarely presented to them, and they having determined it, we are in no position to review it, because of the fact that the legislature by the terms of the act has made the decision of the board binding as to such questions. Section 12, pt. 3, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5465). See Papinaw v. Railway Co., 189 Mich. 441; Ramlow v. Ice Co., 192 Mich. 505; Reck v. Whittlesberger, 181 Mich. 463.

Up to the time that the order denying this petition was made, no formal order of the board had been made approving the agreement for compensation. It is now also urged that there was no evidence of any kind before the board which would warrant the finding of partial disability and that therefore no such order should have been made. We see no harm to the defendants, however, from the part of the order thus complained of, which reads:

“It is further ordered and adjudged that said applicant is entitled to recover from said respondents compensation for partial disability from and after said October 19, 1915, at the rate of one-half the difference between his average weekly wage before the injury and the average weekly wage which he is able to earn thereafter.”

So far as this part of the order is concerned, it was merely a statement of the law that the injured employee was entitled to weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages he is able to earn thereafter (section 10, pt. 2, Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5440). The order does not state any definite amount for the future payments, but leaves this question to future proof.

We see no legal infirmity in the order as made, and therefore affirm the action of the board.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit.


text:
    ELWELL v. PIERCE.
    1. Executors and Administrators — Accounting—Equity—Jurisdiction.
    On a bill by the administrator and tbe heirs of a deceased insane person against the wife and children of a former . guardian, to enable the administrator to marshal the assets of the estate, which involves an intricate and complex accounting covering a long period of years, and there is no proceeding in which the administrator can obtain the relief sought other than by an equity proceeding, the court of equity has jurisdiction.
    2. Same — Demurrer—Pleading.
    On cross-appeals from an order sustaining demurrers to the bill and cross-bills, in view of the complexity of the questions raised, and of the fact that from the pleadings it is impossible for the appellate court to decide them, the demurrers will be overruled and the case remanded to the court below for hearing upon the merits upon proper pleadings.
    Cross-appeals from Kalamazoo; Weimer, J.
    Submitted January 24, 1918.
    (Docket No. 127.)
    Decided March 27, 1918.

      Bill by Hubert Elwell, administrator of the estate of Jeanette Parish, deceased, and others against Julia Pierce and others. Defendants demurred to the bill and filed a cross-bill to which plaintiffs demurred. From a decree dismissing the bill and cross-bill, all parties appeal.
    Reversed and remanded.

      William E. Ware (Burritt Hamilton, of counsel), for plaintiffs.

      Boudeman & Adams, for defendants.
    In this case both parties, except defendant City Bank, appeal from a decree rendered by the circuit court of Kalamazoo county, in chancery. The issues are raised by two demurrers: First, the demurrer of defendants (embraced as a part of the answer of defendants to the original bill of complaint), and, second, a demurrer by plaintiffs to the cross-bill of complaint of defendants, which cross-bill is contained in, and is a part of, the answer of defendants to the original bill. The demurrers were argued before the court at the same time and the court dismissed both the original and cross-bills.
    The controversy arose from the following facts: On March 18, 1869, Horace H. Pierce was duly appointed guardian of his insane sister, Jeanette Parish, by the probate court of Kalamazoo county, and immediately took possession*of all of her property, consisting of 40 acres of land, deeded to her by their father, and some personal property, and continued in possession of the same and in the management and control of all her affairs until he died, September 12, 1910, during which time he received her pension from the United States government, allowed for herself and her three children, plaintiffs herein. Acting upon his petition as guardian, the probate court, on March 27, 1869, adjudged Jeanette Parish insane and ordered her confined to the Western Michigan Asylum at the expense of the public, as an indigent person, where she remained hopelessly insane until her death on November 18, 1913. Plaintiff Hubert Elwell was appointed administrator of her estate February 3, 1914, and as such, together with the other plaintiffs, the children and only heirs of said Jeanette Parish, deceased, filed this bill on May 20, 1915, for an accounting and to recover and collect the amount due the estate of Jeanette Parish, deceased, from her said guardian, Horace H. Pierce, at the time of his death, with accrued interest, and to establish and enforce an equitable first lien for the collection and recovery thereof upon lands deeded by said Horace H. Pierce to his wife and children, the defendants herein, in 1892 or 1893, which, it is alleged, was with the intent and purpose of cheating and defrauding his said ward in her lifetime and her heirs after her death; also to determine to whom the funds of the estate, when collected and recovered by him, together with the proceeds of the sale of her lands in his hands, should be distributed by said probate court. After the death of Horace H. Pierce, Judson W. Pierce was appointed guardian and sold the lands of the ward under an order and license of the probate court and turned the proceeds thereof, $1,678, after her death to the administrator of her estate, which are now in his hands. The bill charges the guardian, Horace H. Pierce, with fraud in all of his transactions relative to the execution of his trust as such guardian. That he fraudulently procured the confinement of his ward in the asylum at public expense, where she remained as such until November 1, 1881, after which time he made payments to the asylum for her maintenance. That he fraudulently never kept any books of account of the funds received by him or the disbursements made by him as such guardian, never filed an inventory or any account of the estate in the probate court. That while his ward was still alive, by means of false and fraudulent statements he induced the children of his ward, who are plaintiffs herein, to give their respective quitclaim deeds to him and Phoebe Pierce for him, of all their interest in the lands of their mother and her personal estate to be distributed after her death. That he undertook to convey and transfer all his property, real and personal, including the entire estate of this "ward which he then had in his possession, by deed to his wife and children, but which deed was not recorded until some days after his death, and that he died intestate and no administration of his estate has ever been had or applied for. The defendants by their cross-bill claim the benefits of all the acts and doings of Horace H. Pierce in the premises and insist that thereunder and thereby they are the owners of all and singular the property and effects of Jeanette Parish, including the funds now in the hands of the administrator and also including anything found due upon an accounting herein to her administrator and claim that plaintiffs, the children of Jeanette Parish, have no interest therein.
   Brooke, J.

(after stating the facts). The first question that challenges our attention in the consideration of this case is the question of jurisdiction. It is urged by counsel for the defendants that the equity court is not the proper forum in which to bring this action, because, as it is said in their brief:

“There is nothing in this case to take it out of the general rule of claims against the estate of deceased persons.”

This bill is filed by the administrator and the heirs of Jeanette Parish to enable the administrator of the estate to marshal the assets of the estate and to bring such assets into the probate court to be distributed according to law. The theory of the bill involves an intricate and complex accounting covering a long period of years, and in our opinion there is no proceeding in which the administrator can obtain the relief he here seeks other than by an equity proceeding as outlined by his bill. See section 13880, 3 Comp. Laws 1915; Graham v. Graham, 171 Mich. 307. We are therefore of the opinion that the equity court has jurisdiction in the premises.

The other questions which are presented and argued in the briefs involve the question of laches, because of the plaintiffs’ failure for so many years to bring some appropriate action; also the question of the validity of the instruments called quitclaim deeds and the adequacy of the consideration therein expressed.

The relief prayed for in the cross-bill of the defendants is based upon the effect and validity of these three so-called quitclaim deeds. The first, made by plaintiff Luella Parish Delano and her husband to Horace H. Pierce, it is alleged in the bill of complaint, was in the ordinary form of quitclaim deed used in this State. In the instrument there is a special provision, which is set up in the bill of complaint as follows:

_ “This deed is intended by 1st .parties to convey all rights to above described land possessed by them as heirs of Jenett Parish and also any and all rights to said premises and all personal property of said Jenett Parish which she shall be possessed of at the time of her decease to which the 1st parties would be entitled as heirs if this deed were not made.”

A similar provision is contained in the instrument given by Eugene M. Parish and wife. The third instrument, given by Lavilla Parish, was a quitclaim deed in the form in common use, without any special provision. Counsel for defendants, in the discussion of the effect of these instruments, do not claim that they convey, or could convey, any interest which Jeanette Parish had either in her real estate or personal property. It is the claim of the plaintiffs that the intent of these three conveyances, evidenced by the writings in question, was to sell all the right and interest which they would have in the property comprising the estate of their mother. It is their claim that they signed these deeds because of fraudulent misrepresentations made to them at the time, and that they received no proper and adequate consideration for the transfer. This is denied by the defendants. In view of the complexity of the questions here raised and of the- fact that from the pleadings it is impossible to get all the information that should be before us in order to determine these questions, we are of the opinion that the case should not be decided upon the record as here presented. The .case should be heard upon its merits in the court below, so that a full inquiry can be made into the allegations in the bill of complaint and in the cross-bill. We must therefore decline to pass upon these questions upon the record as here presented, and under the authority of Osborn v. City of Ann Arbor, 189 Mich. 96; Comstock v. Deane, 197 Mich. 388, and Grand Rapids Trust Co. v. Nichols, 199 Mich. 126, we are constrained to reverse the order of the court sustaining the demurrers.

The demurrers to the bill of complaint and also to the cross-bill are hereby overruled, and the case is remanded to the court below with the direction to the parties to file proper pleadings to bring the case to an issue under the rules of the court. Costs to plaintiffs.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit.


author: Kuhn, J.

text:
    DETROIT & NORTHERN MICHIGAN BUILDING & LOAN ASSOCIATION v. ORAM.
    1. Subrogation — Mistake of Fact — Intent—Evidence—Finding of Court — Mortgages—Gifts.
    Where decedent had only a life estate in land devised to her by her husband subject to a mortgage of $5,500, which she, with money from her separate estate, reduced to $3,000, and later executed a new mortgage paying the first one in full, evidence held, to sustain the finding of the lower court that decedent acted under a mistake of fact that she was the owner of the fee, and not with the Intention of making a gift to'the remainderman.
    2. Same — Executors and Administrators — Interveners — Statutes — Mortgages.
    In equity proceedings by the mortgagee in the second mort_ gage to revive the first mortgage and subrogate it to the rights of the mortgagee therein, the executor of-decedent’s estate had such interest in the litigation as to entitle him to intervene under section 12362, 3 Comp. Laws 1915.
    3. Same — Life Tenant — Mortgages, Duty of Remainderman to Pay.
    The rule is well settled that though a life tenant is under no obligation to pay off the principal of an incumbrance, even to prevent a foreclosure sale, yet if he does so, he is entitled to call upon the remainderman for contribution, and has a lien on the property for the amount due; and that the amount for which the remainderman is liable is the amount paid less the amount of interest which would have been payable by the life tenant.
    4. Same — Life Tenant — Voluntary Payment — Lien.
    While a life tenant cannot claim a lien for payments made voluntarily, with no -purpose to bind the remainderman, payments made in ignorance of the real facts cannot be said to be voluntary.
    5. Same — Mistake of Fact — Equity—Jurisdiction.
    That the inequalities resulting from a clear mistake of fact, one of the fundamental grounds of equity jurisdiction, may be remedied by subrogation, is well supported by precedents.

      6. Same — Mortgages—Payment—Demand—Presumptions.
    Where the life tenant paid a mortgage which was long- overdue, in the absence- of direct proof of an agreement to extend, the presumption would be that payment was demanded.
    7. Same — Mistake oe Fact — Equity.
    When the basis for subrogation is payment under a mistake of fact, usually the only essential questions are the right to pay and whether there are any intervening equities that will be prejudiced by allowing subrogation.
    8. Same — Mortgages—Payment by Life Tenant — Remainderman.
    Where the life tenant paid $2,500 on the original mortgage, then overdue, under a mistake of fact that she was the owner of the fee of the premises, and there are no intervening equities that can be prejudiced, she should, to the extent of such payment, deducting interest for the duration of her life tenancy, be subrogated to the rights of the original mortgagee, as against the remaindermen, since the latter would have been bound to pay the mortgage to protect his estate.
    9. Same — Mistake oe Fact — Lien op Mortgagee.
    Plaintiff, having loaned a sum of money for the express purpose of paying a prior incumbrance on the land taken as security for such loan under a mistake of fact whereby the mortgage became defective, and there being no intervening incumbrances or equities, is entitled to be subrogated to the lien of the incumbrance so discharged, to the extent of the amount paid.
    10. Same.
    Where the second mortgage given to plaintiff was for a larger amount than the remaining incumbrance, and decedent, who was personally liable on the note and mortgage, received the benefit over and above the amount required to pay said incumbrance, her executor having intervened, equity will give plaintiff a lien on the amount to which decedent was entitled to be subrogated to pay the balance due on plaintiff’s mortgage over and above the amount to which it is entitled to be subrogated.
    11. Same — Mortgages—Right to Foreclose.
    Plaintiff and intervener, as the equitable assignees of the original mortgage, should have the right to foreclose the same -to enforce payment.

      Appeal from Houghton; O’Brien, J.
    Submitted January 18, 1918.
    (Docket No. 150.)
    Decided March 27, 1918.
    Rehearing denied June 20, 1918.
    Bill by the Detroit & Northern Michigan Building & Loan Association against Minnie K. Oram and others to set aside the discharge of a mortgage, for subrogation to the rights of the mortgagee, and to foreclose the same. Joseph Strobel, executor of the will of Elizabeth Kaspers-Gitzen, intervened claiming equities. From a decree for plaintiff and the intervener, defendants appeal.
    Affirmed.

      Ranchette & Lawton, for plaintiff and intervener.

      J. F. Hambitzer, for defendants.
   Kuhn, J.

John Kaspers in his lifetime was a resident of the village of Houghton and owned a corner lot on the main street of the village, in the business district, on which stood a two-story store building and other adjoining structures. He died July 23, 1903, leaving a will which gave a life estate in this property to his wife, Elizabeth, with remainder to his son, Gabriel. At the time of his death there was a mortgage of $5,500 on this land, held by one Elizabeth Hennes, then by its terms overdue. In the inventory of his estate this piece of real estate was appraised at $12,500, subject to a mortgage of $5,500. Some time in the following year the son, Gabriel, died, leaving a widow, Minnie, and a young child, Joseph Gabriel Kaspers. In 1906, Mrs. Elizabeth Kaspers sold a certain property in Hurontown belonging to her as part of, her separate estate, and out of the proceeds paid Mrs. Hennes $2,500 on account of the principal of the above mentioned mortgage. In January, 1909, she legally adopted her grandson, Joseph Gabriel Kaspers, and a few days later, at the age of 67, married one Joseph Gitzen of Houghton, then about 65 years of age.

On July 21, 1912, a transaction was completed whereby the plaintiff Detroit & Northern Michigan Building & Loan Association loaned to said Elizabeth Kaspers-Gitzen the sum of $4,500 on the security of a mortgage covering the Houghton store property above mentioned, signed by Mrs. Gitzen alone, and at her request applied $8,000 of this loan to paying the balance of principal and obtaining a discharge of the Hennes mortgage on said property, the remaining $1,-500 being paid over to Mrs. Gitzen. Before making this loan, the plaintiff had an abstract of title prepared by the register of deeds, who certified that the title to the property in question was in Mrs. Gitzen. Later the loan was increased, and in this transaction the $4,500 mortgage was discharged and a new mortgage for $4,800 given, the register of deeds again certifying as before with reference to the title. This mortgage was payable in installments, so that if the payments were regularly made it would be paid in full in 11 or 12 years. In 1914, Mrs. Gitzen sold another piece of property belonging to her separate estate — this one in West Houghton — and from the proceeds paid $800 on account of her mortgage to plaintiff. Mrs. Gitzen died February 25, 1915, possessed of practically no estate except her interest in this store property, but made a will in which, after a bequest of $500, she gave a life estate in her property to her husband, Joseph Gitzen, with remainder to her adopted son (her grandson), Joseph Gabriel Kaspers. Shortly afterwards the boy was adopted by his own mother and her second husband, Minnie Kaspers.-Oram and John Oram.

After the death of Mrs. Gitzen, plaintiff discovered that the abstracter had made a mistake’ in the abstract of the mortgaged property in question, and that Mrs. Gitzen, instead of being the owner of the fee, had only a life estate. Plaintiff thereupon filed a bill against Minnie Kaspers-Oram and Joseph Kaspers-Oram, the heirs of Gabriel Kaspers, the remainderman under the will of John Kaspers, deceased, claiming a mistake of fact, and asking that the discharge of the Elizabeth Hennes mortgage be set aside and the mortgage revived and that plaintiff be decreed to be the equitable assignee thereof and subrogated to the rights of Elizabeth Hennes therein, and praying for the foreclosure of said mortgage.

After the hearing of the case had begun and a portion of the testimony had been taken, Joseph Strobel, executor of the will of Elizabeth Kaspers-Gitzen, filed a petition or bill for intervention in said cause, setting up the fact of the payment by Mrs. Gitzen of the $2,500 on account of the Hennes mortgage, which fact was not alleged in the original bill, and praying that she be subrogated to the Hennes mortgage for the amount of this payment, or at least for so much of said amount as might remain after the balance due to the plaintiff had been satisfied. The intervention was allowed by the court below.

The defendants denied the right of plaintiff to the relief prayed for, contested the right of the executor to intervene and also denied that he was entitled to the relief sought by him. They denied that Mrs. Git-zen, in her dealings with the property in question, be.lieved that she was the owner of the fee thereof, or that she intended to claim or have any lien for the $2-,500 paid by her on the mortgage, or that there was any necessity for the payment of the Hennes mortgage, but claimed that the partial payment of $2,500 by Mrs. Gitzen was a voluntary payment in the nature of a gift, with the purpose and intent to reduce the incumbrance for the benefit of her grandson, one of the remaindermen; further, that Mr. Gitzen, after her marriage, dominated her and induced her to waste her property for his benefit, and that the sole purpose of the transaction with plaintiff was to obtain $1,500 to spend, and the sole reason for the discharge of the Hennes mortgage was that plaintiff would not take a second mortgage on the property, but insisted on combining the loans and taking a first mortgage for the entire amount. They claimed this latter transaction was neither necessary nor ■ for the benefit of the remainderman, but was a mere voluntary payment.

As bearing on these claims, considerable testimony was admitted by the court, and after hearing all this testimony, the learned trial judge was clearly impressed that Mrs. Gitzen had acted in entire good faith in these transactions under the mistaken belief that she owned the fee of the property. Referring to the payment of the balance of the Hennes mortgage, he said:

“It is quite evident from all the testimony that this payment was made by Mrs. Gitzen under the impression that she was the sole owner of the premises.”

The court granted a decree, reviving the Elizabeth Hennes mortgage for $5,500 for the benefit of the plaintiff and the intervener, subrogating plaintiff and intervener to the rights of Elizabeth Hennes in and to the mortgage, granting priority to plaintiff’s lien over that of intervener, fixing the amount of plaintiff’s lien at $3,700.72, with interest at 7 per cent, from the date of Mrs. Gitzen’s death, the intervener’s lien to be for the residue; decreeing plaintiff and the intervener to be the equitable assignees of said mortgage, with right to foreclose the same, and'fixing the amount due under the mortgage at $5,500 with interest thereon at 7 per cent, from the date of Mrs. Gitzen’s death.

An appeal having been taken from this decree, appellants’ counsel, at the outset of his argument, in his brief, renews his contention that Mrs. Gitzen acted with, full knowledge of the true state of the title to the property in question. While it is impossible, within the purview of this opinion, to review the testimony upon this question, which was introduced on the hearing below, after a careful study thereof we are impressed that the circuit judge was clearly right in his conclusion that Mrs. Gitzen believed that she was the sole owner of the premises. Her adopting her grandson to make him her heir, her inducing Mr. Gitzen to distribute his own property among his children before the marriage, her applying all the proceeds of the sales of her individual property that she could spare to the reduction of the incumbrance on this store property, the money, and labor contributed by herself and Mr. Gitzen towards improving the buildings, her making a will, after she had thus spent all her own sole and separate estate, in which she evidently sincerely believed she was fulfilling her long cherished purpose of leaving a substantial and profitable inheritance to her grandchild — in short, her whole course of action cannot be reasonably explained or rendered consistent on any other theory than that she believed the store property had passed to her absolutely under her husband’s will and that she was dealing with and disposing of her own. The testimony of defendants’ witnesses as to her statements, it seems to us, supports this theory far more strongly than it does that of the defense.

1. Before passing to the consideration of the question of plaintiff’s and intervener’s respective rights of subrogation, a preliminary question demands consideration. Had the executor of the will of Mrs. Gitzen a right to intervene in these proceedings?

A rule as to intervention was incorporated in the judicature act (Act No. 314, Pub. Acts 1915), appearing as section 11 of chap. 12 (§ 12362, 3 Comp. Laws 1915), which reads as follows:

“In an action either at law, or in equity, anyone claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of the propriety of the main proceeding.”

This act, by its terms, is declared to be remedial and, as such, entitled to a liberal construction to effectuate the intents and purposes thereof. The section in question has already had the consideration of this court in Weatherby v. Kent Circuit Judge, 194 Mich. 46, and McMillan v. School District, ante, 280.

We think it can fairly be said that the intervener herein is asserting “a claim to, or lien upon, the property, or some part thereof, which is the subject of litigation,” and also has an interest in the litigation “of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.” See opinion of Field, J., in Horn v. Water Co., 13. Cal. 62, cited with approval in Smith v. Gale, 144 U. S. 509. A mortgage, .discharged of record, is sought to be revived and declared a lien on real estate to the extent of plaintiff’s claim. The intervener seeks to have it declared a lien for the full face amount thereof in order also to secure the claim of his testatrix.. Both claims arose out of a mistake concerning the same fact, viz., the ownership of the property which furnished the basis of, and supposed- security for, their respective payments of money. Moreover, the plaintiff holds a note and mortgage given by intervener’s testatrix which is a claim against her estate, and whatever plaintiff is able to realize out of his subrogation to the Hennes mortgage will reduce to that- extent the amount of the indebtedness of the estate of intervener’s testatrix. We think, therefore, that the intervention was properly allowed.

2. Is the executor of Mrs. Gitzen’s will, by reason of the payment by her of $2,500 on account of the Hennes mortgage, entitled either to a lien for that amount on the store property as against the remainderman, or to be subrogated pro tanto to the Hennes mortgage?

The rule is well settled that though a life tenant is under no obligation to pay oif the principal of an incumbrance, even to prevent a foreclosure sale, yet if he does so, he is entitled to call upon the remainderman for contribution, and has a lien on the property for the amount due; and that the amount for which the remainderman is liable is the amount paid less the amount of interest which would have been payable by the life tenant. See 16 Cyc. pp. 635, 636; 1 Wash-burn on Real Property (5th Ed.), p. 129, § 25; Whitney v. Salter, 36 Minn. 103; Downing v. Hartshorn, 69 Neb. 364; Engel v. Ladewig, 153 Mich. 8; Damm v. Damm, 109 Mich. 619; Hodges v. Phinney, 106 Mich. 537. And while it is true that a life tenant cannot claim a lien for payments made voluntarily with no purpose to bind the remainderman, yet it is also clear that payments made in ignorance of the real state of facts cannot be said to be voluntary.

This case presents more than the ordinary instance of a payment by a life tenant of an incumbrance. A clear mistake of fact, one of the fundamental grounds of equity jurisdiction, is also involved, and the proposition that inequities resulting from such a mistake as the one in question may be remedied by subrogation is well supported by precedents. In 37 Cyc. pp. 444, 445, it is' said:

“Where a person in good faith assumes and pays an encumbrance on land, to which he has no title, but believes in good faith that he is the owner, he becomes the equitable owner of the encumbrance, and the same constitutes a lien on the land; and one who at the time of paying the mortgage debt erroneously believes himself the owner of the property, while in fact the record shows him entitled to but a life estate, is nevertheless entitled to subrogation against the remainderman to the extent to which such remainderman was bound to pay the mortgage to protect his estate.”

In Taylor v. Roniger, 147 Mich. 99, Mr. Justice McAlvay said:

“Complainant purchased the land for $300 cash, understanding that he was obtaining the title in fee subject- to the incumbrance. He paid the mortgage thinking he was relieving his own land from the incumbrance, and having paid the mortgage upon the land which in fact he did not own, became its equitable owner, and entitled to be so considered and to have the same declared to be a subsisting lien upon the land.”

In Wilder v. Wilder, 75 Vt. 178, Mr. Wilder, upon the death of his wife, took a life estate in certain real estate belonging to her and occupied as a homestead, while the fee vested in their son in remainder. Mr." Wilder, believing he owned the fee of the property, paid off a mortgage thereon. He further undertook to dispose of the land by his will, one-half to his second wife and one-half to trustees for his son. After his death, the mistake was discovered, and his executrix filed a bill, asking to be subrogated to the rights of the mortgagee under the mortgage so paid. The court granted the relief, saying:

“The fact that he supposed that he held the title to the premises in fee, and made the payment under such belief, did not disentitle him to assert his right as life tenant paying off the incumbrance, to be subrogated to the rights of the mortgagee, to the extent the remainderman was bound to pay to protect his estate. His relation to the estate was such that payment of the mortgage debt by him, without proof of an intention to keep the mortgage on foot, entitled him to be subrogated to the rights of the mortgagee, to the extent we have indicated; and that right may be enforced by the oratrix” (the executrix of his will).

In Stroh v. O’Hearn, 176 Mich. 164, among other complications, certain parties became possessed of life estates under the mistaken, but bona fide belief that they owned the fee. In discussing the question of their rights, Mr. Justice Steere, speaking for this court, said:

“While it was the duty of the remaindermen to prevent foreclosure and save the property, if the life tenants, being under no obligation to do so beyond paying interest, did pay the incumbrances, they would be entitled to call upon the remaindermen for contribution, and would have a lien upon the property for the amount so paid, less interest on the principal of the indebtedness, to be computed against them during the continuance of their life estate.”

And again:

“Bauman, having paid the mortgage, or any other lien, on the 60 acres he held as a life tenant, would himself have a lien thereon for the amount paid, deducting interest computed for the estimated duration of his life tenancy.”

Considerable argument has been made as to the purpose and intent of Mrs. Gitzen in making the $2,-500 payment, and emphasis has been laid on the fact that Mrs. Hennes was a friendly mortgagee, willing to let the mortgage run, and that payment under such circumstances was mere meddling and could not be held to constitute anything but a voluntary payment. But it must be remembered that the mortgage was long overdue, and in the absence of direct proof of an agreement to extend, the presumption would be that payment was demanded, and further, that the payment was made under a mistake of fact, which removes from consideration any possibility of the same being voluntary. When the basis for subrogation is •payment under mistake of fact, usually the only essential questions are the right to pay and whether there are any intervening equities that will be prejudiced by allowing subrogation.

Having made the payment of $2,500 on the original mortgage, then overdue, under the erroneous belief that she was. the owner of the fee of the premises, when in fact she had but a life estate, and there being no intervening equities that can be prejudiced, Mrs. Gitzen should, to the extent of such payment, deducting interest for the duration of her life tenancy, be subrogated to the rights of the original mortgagee, as against the remaindermen, since the latter would have been bound to pay the mortgage to protect their estate.

3. Is the plaintiff entitled to subrogatión to the rights of Mrs. Hennes under her mortgage by reason of loaning $3,000 to pay the balance of principal of said mortgage under mistake of fact as to the title of the property in question taken as security?

In 37 Cyc.'pp. 462, 463, it is said:

“Where an invalid or defective mortgage is given to secure an advancement of money made for the express purpose of paying off a prior encumbrance, the mortgagee in the defective mortgage will be subrogated to the lien of the encumbrance so discharged, in the absence of intervening encumbrances, and mere constructive notice of the invalidity based upon a presumption of knowledge of the law, or Upon the recording acts, is not sufficient to prevent the right from attaching if the mortgagee did hot have actual knowledge, apd the failure of actual knowledge was not mala fides.”

In Sproal v. Larsen, 138 Mich. 142, Mr. Justice Carpenter said:

“There was presented to complainant’s attorney an abstract brought down to February 17, 1891, showing title in defendant Augusta. Complainant was led to believe, and did believe, that that title continued in her. He thereupon advanced the money required to pay the money secured by the Gary mortgage, which was ac-' cordingly paid, and he obtained a new mortgage on said property, signed by defendant Augusta and her husband. Having subsequently ascertained that defendant Augusta had no title to the mortgaged property, complainant instituted this suit, asking to be subrogated to the rights of the mortgagee in the Gary mortgage. * * *
“Justice Montgomery, speaking for this court (see Palmer v. Sharp, 112 Mich., at page 423), said:
“ ‘In numerous cases in this State, parties who have accepted securities in good faith upon a loan made for the purpose of discharging existing incumbrances upon the same real estate, have, upon its appearing that the security was ineffectual or invalid, been allowed to be subrogated to the rights of prior lienors; there being no person intervening entitled to superior equities.’ (citing cases).
“This principle and these authorities clearly entitle complainant to relief.
“The fact that the property is a homestead does not, as contended by defendants, make the doctrine of subrogation inapplicable. That circumstance did not lessen the rights of the original mortgagee, and therefore does not affect co.mplainant, who, by subrogation, has acquired those rights. * * *
“In the case at bar, complainant’s mistake was not one of law. He did not know the facts.”

It is true that in the above case there was no interest of a remainderman involved, but in one of the numerous situations involved in Stroh v. O’Hearn, supra, the exact situation here presented was in issue. Mr. Stroh had loaned money to pay off some mortgages on property of the O’Hearn estate, and had taken as security therefor a mortgage, signed by John _ and Martin O’Hearn, covering a portion of the lands of the estate in which said John and Martin O’Hearn had but a life estate, instead of the absolute title in fee which all the parties concerned honestly believed they owned. In passing on the rights of Mr. Stroh, Mr. Justice Steere said:

“The mortgages had been foreclosed and sale decreed, and the legacies were past due and payable when Stroh and Bauman first became connected with the estate. They were in no way responsible for the conditions which had arisen. Under the apparent necessity of raising money to avoid a sacrifice of the entire estate and meet these pressing obligations, through innocent misrepresentation and a misunderstanding all around as to the condition of titles, they advanced the money to pay off those liens, under the honest belief that they were paying incumbrances on property bought or security taken, based on perfect titles. We think it is within the power of a court of equity to grant them subrogation, subject to such conditions as are just and equitable. They are not arbitrarily entitled to it as a matter of right, irrespective of equitable considerations arising in favor of other interests which may be affected thereby. Subrogation is an equitable doctrine depending upon no contract or privity, and proper to apply whenever persons other than 'mere volunteers pay a debt or demand which in equity and good conscience should have, been satisfied by another. It. is proper in all cases to allow it where injustice would follow its denial, and in allowing it all injustice should be guarded against so far as possible. We need not go afield in other jurisdictions for authority upon this subject; the law is well settled in this State. Detroit Fire & Marine Ins. Co. v. Aspinall, 48 Mich. 238 (12 N. W. 214); Lockwood v. Bassett, 49 Mich. 546 (14 N. W. 492); Warner v. Hall, 53 Mich. 371 (19 N. W. 40); Kelly v. Kelly, 54 Mich. 30 (19 N. W. 580); White v. Newhall, 68 Mich. 641 (36 N. W. 699); Palmer v. Sharp, 112 Mich. 420 (70 N. W. 903); Dayton v. Stahl, 132 Mich. 360 (93 N. W. 878); Sproal v. Larsen, 138 Mich. 142 (101 N. W. 213); Taylor v. Roniger, 147 Mich. 99 (110 N. W. 593).”

After discussing the peculiar intermingling of equities due to the complicated facts of’ that case, he says:

“In granting relief from the consequences of these mistakes, the rights and interests of all parties must be considered. We think it proper, and within the power of a court of chancery, to grant subrogation to Bauman and Stroh to the amount of the liens against the estate which they have paid, less the value of any benefits they may have received from the estate; but the subrogation must be in lieu of that out of which the mistakes, which justify the court in granting subrogation asked, arose. * * * With these conveyances canceled and subrogation granted, Stroh and Bauman stand in their relation to the estate as secured creditors only to the amount of the money they advanced in payment of liens against it. Their only right is to have their liens enforced with reasonable diligence.”

In the instant case, there are no such intervening equities. When the remainder interest in the Houghton store property vested in the remainderman, it was incumbered by a mortgage of $5,500, the duty of paying which rested on the remainderman. The mortgage was paid by another and discharged under a mistake of fact. If we allow the parties who furnished the money for such payment to be subrogated to the rights of the original mortgagee, the remainderman is thereby left in the identical position he originally occupied, bereft of the inequitable advantage he seeks to retain, but burdened with no incumbrance greater than that which in equity and good conscience he should be required to bear as an incident of the estate which passed to him under the will.

Having loaned the sum of $8,000 for the express purpose of paying off a prior incumbrance on the land taken as security for such loan under a mistake of fact whereby the mortgage became defective, and there being no intervening incumbrances or equities, plaintiff is entitled to be subrogated to the lien of the incumbrance so discharged, to the extent of $3,000.

Inasmuch as Mrs. Gitzen was personally liable on the note and mortgage given by her to the plaintiff, and had personally received the benefit of the loan over and above the $3,000, and her executor has intervened in this case, equity will give the plaintiff a lien on a sufficient portion of the amount to which Mrs. Gitzen is entitled to be subrogated, as above provided, to pay the balance due on plaintiff’s mortgage over and above the $3,000 to which it is entitled to be subrogated. The plaintiff and intervener, as the equitable assignees of the Hennes mortgage, should have the right to foreclose the same to enforce payment.

Assuming that the amount found due in the decree of the court was determined in accordance with the rules of law herein set forth, the decree of the court below will be affirmed in all respects, with costs to the plaintiff and to the intervener.

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


text:
      In re DAVIS’ ESTATE. ENGLE v. DAVIS’ ESTATE.
    1. Estates of Decedents — Executors and Administrators — Claims — Evidence—Admissibility.
    On appeal to the circuit court by tbe administrator from tbe allowance of a claim against decedent’s estate for tbe amount of a loan claimed to have been made by plaintiff to decedent at the time decedent purchased some land, evidence of the vendor of the land that plaintiff gave him a check in the presence of the deceased, although not at his request, is not open to the objection that it does not tend to show contractual relations between plaintiff and deceased, but, with other evidence, was properly admitted as evidence of the payment.
    2. Same — Correspondence—Corroborative Testimony.
    Where disinterested witnesses testified that deceased admitted his indebtedness to plaintiff and stated he had given him a heifer and a hog in payment of the interest, letters from deceased to plaintiff referring to the same subject were properly admitted in evidence.
    3. New Trial — Great Weight oj? Evidence.
    On motion for new trial on the ground that the verdict was contrary to the great weight of the evidence, held', that the trial court was justified in denying the motion.
    Error to Cass; Des Voignes, J.
    Submitted January 9, 1918.
    (Docket No. 29.)
    Decided March 27, 1918.
    Benjamin F. Engle presented a claim against the estate of Charles E. Davis, deceased, for money loaned. The claim was allowed in part by the probate judge, and Glenn A. Davis, administrator with the will annexed of the estate, appealed to the circuit court. Judgment for claimant. Contestant brings error.
    Affirmed.

      Chester E. Cone, for appellant.

      James H. Kinnane (Thomas J. Cavanaugh,.oí counsel), for appellee.
   Kuhn, J.

Benjamin F. Engle presented a claim against the estate of Charles E. Davis, deceased, in the probate court for the county of Cass, for $1,100, claimed to have been loaned to deceased October 30, 1907, and for $275 interest thereon at 5 per cent, from December, 1911. This claim was allowed at $275 by the judge of probate. From his order so allowing it Glenn A. Davis, administrator with the will annexed of the estate, appealed to the circuit court, and in due course a trial was had in court before a jury, who rendered a verdict in favor of claimant for $1,375. A motion for a new trial was made and denied, judgment was duly entered, and the administrator has brought the matter to this court for review.

The claim of Mr. Engle is that he loaned $1,100 to Charles E. Davis in connection with the closing of a real estate transaction between Davis and wife on the one side and Rhoda E. Cutler, William H. Skinner and Samuel F. Skinner on the other, wherein the three last mentioned parties deeded 139 acres of land in Porter township, Cass county, to Charles E. Davis and Ida May Davis, husband and wife, for the stated consideration of $4,782.50, and Davis and wife deeded 40 acres of land in Newberg township, Cass county, to said William H. Skinner and gave a mortgage to said Rhoda E. Cutler and Samuel F. Skinner covering the 139 acres acquired by Davis and wife in the deal.

Ida May Davis died June 6,1915, prior to the death of her husband, whose decease occurred September 30, 1915, the full title to the 139 acres having devolved upon him by the death of his wife.

Mr. Engle, the claimant, is the father of said Ida May Davis, with whom and his other three children he had had some business transactions in connection with the settlement of the estate of his wife, Mary L. Engle, of which he was the executor.

No note or other writing was taken by Mr. Engle to evidence the loan of this $1,100, and because of the statute preventing him from testifying to any facts equally within the knowledge of the deceased, it is claimed that the only proof he was able to introduce to establish his claim was of a fragmentary, indefinite and unsatisfactory nature. It is the further claim of appellant that the proof introduced might have applied equally well to advances of money to, and other transactions with, his daughter under arrangements in connection with his wife’s estate and otherwise, and that much of the evidence offered should have been excluded on the ground that claimant was unable to connect it in any way with the claim in question. This much was established, however, that Mr. Engle met the parties to the real estate deal referred to, at the court house in Cassopolis; that he had $1,100 before the deal was closed which he did not have after-wards, and that he turned over a draft for $1,100 to Mr. Skinner.

The first contention of appellant’s counsel is that the testimony of the witness Samuel F. Skinner was improperly admitted. This witness testified that he was present on October 30, 1907, when Mr. Engle gave him a check for $1,100 in the presence of Mr. Davis. It is claimed that he does not testify that he gave him the money at the request of Davis, and therefore it does not tend to show any contractual relation between Engle and Davis. If this were the sole evidence in the case, it might be' subject to the criticism made, but when considered with all the other testimony, we think it was properly admitted as evidence of the payment.

Similar objection is made to certain letters which were admitted in evidence, written by the deceased to the claimant, and which, in connection with the testimony of the witnesses, were admitted for the purpose of showing that the loan was made and that it had been kept alive by payments and by acknowledgments in writing. Witness Mattie Mihills testified that she was present at a conversation had in front of Mr. Davis’ house, in which it is claimed the following occurred :

. "Mr. Davis said that he had got $1100 of father Engle and he had let him — he would expect to pay him when he got around so he could.
“Q. What did he say as to whether he was paying interest or not?
“A. Why he said he hadn’t paid him interest quite lately; he didn’t have it to pay.
“Q. Did he say anything about having paid some interest at some time ?
“A. Why he spoke about letting him have some cattle.
“Q. A heifer?
“A. Yes, sir, and a hog.
"Q. State what he said as to whether that paid interest or not.
“A. Paid it on towards interest.
“Q. About how long after that was it that Charles died?
“A. About two months probably, two and a half.”

Her husband, who was also present, stated that he heard Mr. Davis say that Mr. Engle, the claimant, had let him have $1,100, and that he might as well pay interest to him as anybody else. The letters in question refer to the transaction with reference to the heifer and the hog, and we see.no error in admitting them for the purposes above stated.

It is further suggested that the verdict of the jury was contrary to the weight of the evidence and that the circuit judge erred in not granting a new trial for that reason. The learned trial judge in denying the motion said:

“The reason assigned, that a directed verdict should have been given, is answered in the discussion under the assignment first reciting the testimony introduced on the part of both parties in this case, clearly indicating that there was enough to take to the jury, providing the original indebtedness was not barred by the statute of limitations.
“My reason for submitting it to the jury on that relation was, first, there was evidence of payment and the written acknowledgment of the indebtedness. It ■is not disputed that Mr. Engle advanced eleven hundred dollars. The question for determination was, Was this a gift, or was it a loan?
“Davis between December 9, 1911, and March 20, 1912, turned out to Mr. Engle a heifer and a boar to pay interest evidently due October 30, 1911, on this loan. In the letter of December 25, 1911, Mr. Davis speaks of the boar, and tells Mr. Engle that if he concludes he does not need the boar, he, Engle, can have him on the same terms that he took the heifer, and concludes the paragraph by saying, Tt is as good as, cash to me.’
“Mrs. Mihills testified that”Davis told her that he had let Engle have a heifer and a hog on the interest on the indebtedness. This testimony, if true, indicated a revival of the indebtedness as late as the latter part of the year 1911.”

We agree with his conclusion that there was sufficient evidence, .to warrant the submission of the disputed questions of fact .to the jury, and we are not satisfied that there is not enough evidence to support the verdict, so as to justify us in disturbing the action of the trial judge in denying the motion for a new trial.

We conclude that the judgment should be, and it is hereby affirmed.

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