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by plaintiffs in error, under an oral agreement to furnish materials and erect an addition to the building in which the defendant resided. This "addition lapped by the old building about eight feet, which was to give room for a door swinging back so it connected with the old building. The sills were mortised into the old building, and pinned, and the sill of the old part formed part of the sill of the new part. Between the old and the new part there was a door cut through, and the door and the lock hung. The old wall formed part of the new." The agreement specified fully how the building should be completed, and the price agreed upon was $250. There was evidence tending to show that the work, labor and materials should not exceed this sum, and that such work and labor were being done by the day. After the work was partly done the house and this addition were destroyed by fire, without the fault of either party, and evidence was given tending to show that the work and labor done, and materials furnished, up to the time of the fire amounted to nearly $200.

The court charged the jury that if the agreement made was to furnish the materials and do the work, and no particular sum was agreed upon therefor, that plaintiffs could recover. If, however, they should find that the materials furnished and labor done were at a certain fixed price for the job, to be paid for when completed, and that it was not completed at the time of the fire, then for the materials furnished and labor performed up to the time of the fire they could not recover. The correctness of this portion of the charge is what our attention has been called to on the matter complained of.

Uuder the strict common-law rule, where a party had failed to comply substantially with an unapportionable agreement, he could not recover for what had been done. This rule has been so far modified that where any thing has been done from which the other party has received a substantial benefit, and which he has appropriated, a recovery may be had based upon such benefit. The basis of this recovery is not the original contract, but a new-implied agreement deducible from the new delivery and acceptance of some valuable service or thing. Allen v. McKibbin, 5 Mich. 454. Applying this rule to the case before us, and there can be no recovery for the work and labor done and materials furnished. The contract was not apportionable, if to complete the building for a fixed sum, and there was no acceptance of

what was done, or any benefit derived therefrom or on account thereof at the time of the fire.

If Besley had conveyed the premises before the fire, or in any way accepted or appropriated to his own use what had been done, the law would have implied a promise that he pay therefor. It was argued that this addition having been attached to the main buildings, thereby forming a part thereof, it from day to day became the property of Besley as the work progressed, and therefore that he should pay for so much as had been done. But had it been separated from the main building it would equally have been a part of the realtytherefore, Besley's property, and for that reason should have been paid for, although a separate building-a doctrine not contended for. Where the agreement is to erect and complete a building, the person on whose land it is being erected cannot be compelled to pay for one erected in part, or one differing from what was contracted for, unless he has in some way accepted it and derived some benefit therefrom. Marks v. Houck, 39 Mich. If before acceptance, or an appropriation thereof to the use of the owner of the land, it should be destroyed without fault on his part, he would not be liable for what had been done.

It was also argued that as this addition, under the agreement, was attached to and formed a part of the main building, there was an implied agreement would furnish the house to which the addition was to be attached, and failing in this, because of the fire, the parties would be entitled to recover. Admitting such an implied agreement, and that any act of the owner of such building which would remove it, or deprive the contractors from attaching this addition thereto, would give them a cause of action, yet we do not see the force or bearing thereof in this case. Here the main building was not removed by the act or through any fault of the owner thereof, and why he should be held chargeable therefor does not appear. It was one of those casualties not provided for or contemplated, and for which neither should be held liable to the other. It certainly does not clearly appear but that the contractors might yet go on and substantially perform the agreement on their part. This addition formed a complete building of and by itself. True, it was to be attached in part to the old, but not in so essential a matter as to prevent the erection thereof without the support which it would otherwise have derived therefrom.

This work could have been carried on and fully performed

without any reference to the main building, in any important particular. A removal of the main building by the owner thereof would have excused the contractors from connecting this addition therewith, but would not have prevented their recovering the full contract price, had they in all other respects complied with their agreement.

In this case there was no acceptance by Besley, previous to the fire, and the addition was in no shape to call for an acceptance thereof. What is necessary to constitute a proper acceptance in a case like the present, or in a case where a building has been erected on the land of another, we need not, in this case, determine. It is not every act of the owner of the real estate, or of the main building, that could thus be construed. The act of acceptance should be unequivocal, else ordinary acts, as owner of the real estate, which he does not yield up in such a case, might be so considered, contrary to the real intention. Taymouth v. Koehler, 35 Mich. 26. The judgment must be affirmed, with costs. (The other justices concurred.)

SAMUEL T. HENDRICKS vs. FREDERICK RASSON.

Filed October 30, 1879.

Where a distinct part of the premises sought to be recovered are occupied by another than defendant, it may be proper to join such party as defendant, but the suit will not fail for such non-joinder. The only effect will be to limit the extent of the recovery. Instruction of the court that plaintiff could not recover possession if a person other than defendant was in occupation with him, held, erroneous.-[ED.

Error to Wayne.

George W. Coomer and John Atkinson, for plaintiff in error. H. M. Cheever and C. C. Stewart, for defendant in error. COOLEY, J. The circuit judge was under misapprehension when he instructed the jury that the plaintiff could not recover if they found that another person than the defendant was with him in occupation of the premises. The evidence to show possession in another tended to establish the fact that defendant's father occupied a distinct part of the house. If such was the fact it would have been proper to join him as defendant, (Comp. L. § 6207,) but the suit would not fail for the non-joinder.

The only effect upon the verdict would be to limit the recovery by excluding that which the father occupied. Comp.

L. 6206. The case bears no resemblance to Hobson v. Van Fossen, 26 Mich. 168, where the possession in question was that of husband and wife, and incapable of severance on judicial process.

The case does not show that the father claimed a right to occupy and enjoy the whole land jointly with the defendant; but if it had, the plaintiff would have been entitled to go to the jury on that question. The charge was broad enough to put the plaintiff out of court on the fact—which seems not to have been disputed that the father occupied a part of the house.

The judgment must be reversed, with costs, and a new trial ordered.

(The other justices concurred.)

PEOPLE ex rel. CATHARINE WILCHEEK vs. JOHN EDWARDS and

others.

Filed October 30, 1879.

The giving of notice of the application to the probate court for the appointment of commissioners for opening a drain is, under the township drain law of 1875, necessary to the jurisdiction. The order of the probate court and the finding of commissioners should identify such drain.

Proceediings under the drain law should not, after any considerable delay, be interfered with unless such delay be satisfactorily explained. (Per COOLEY, J.)-[ Ed

Certiorari to highway commissioner and township clerk. George C. Green and Atkinson & Atkinson, for plaintiff. George S. Engle, for defendant.

CAMPBELL, C. J. The certiorari in this case was issued to review proceedings for opening a drain over lands of plaintiff under the township drain law of 1875.

It appears from the return that no notice was given of the application to the probate court for the appointment of commissioners, and this was necessary to their jurisdiction. Strachan v. Brown, June, 1878; Taylor v. Burnap, October, 1878.

Neither the order of the probate court, nor the finding of the commissioners of the necessity of the drain, identify or describe it. There are also several other defects not necessary to refer to.

The proceedings must be quashed.
MARSTON and GRAVES, JJ., concurred.

COOLEY, J. I am of opinion that the writ of certiorari in this case should be dismissed. The proceedings which are

brought up by it were finally closed in August, 1878, and we do not know what may have taken place since. It is reasonable to conclude that contracts have been let, and that rights have accrued, in reliance upon the proceedings; and it is not at all improbable that the plaintiff in certiorari is herself reaping permanent benefit from what has been done under the proceedings she now seeks to set aside.

In my opinion we ought never to interfere in these cases after any considerable delay, unless it is very satisfactorily explained.

CATHARINE GIES vs. WILLIAM A. GREEN and others.

Filed October 30, 1879.

Execution taken out for a deficiency in foreclosure, without special application to the court, any notice, is without authority of law. `Purchaser at execution sale, on deficiency on foreclosure, is not a proper party to a bill to re-examine the original proceedings, nor can the title to the land sold on such execution be litigated in the proceedings on such bill. -[ED.

Appeal from Wayne.

Fred. A. Baker, for complainant.

H. M. Cheever, for defendant.

COOLEY, J. My brethren think the decree in this case should be affirmed. They are of opinion that, if the facts are as complainant states, she had no reason to expect that a personal decree would be taken against her on a demand on which she was not personally liable, and we all agree that the execution which was taken out for the deficiency, after the foreclosure sale, without special application to the court and notice to complainant, was issued without authority of law.

It is objected that the purchaser at the execution sale is not made a party; but as he was no party to the original controversy, and is in no way connected with the merits, he would be an improper party to a bill which proposes merely to re-examine them. Nor in this suit can the title of Mrs. Gies to the lands sold be litigated. The questions in this suit will concern the original controversy only, and cannot take notice of the subsequent proceedings.

The decree must be affirmed, with costs.

(The other justices concurred.)

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