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See, also, Wattles v. Wayne Circuit Judge, 117 Mich. 662 (72 Am. St. Rep. 590); Union National Bank v. Muskegon Circuit Judge, 117 Mich. 678; Wynkoop v. Grand Traverse Circuit Judge, 113 Mich. 381; Bradley v. Andrews, 51 Mich. 100. We are persuaded that the omission of the justice to insert the date in the jurat was not such a defect as rendered the proceedings void. The affiant signed and filed with the justice a proper affidavit. The neglect of the justice to fill in the date was not fatal.

Defendant Henry Sprague was in ill health at the time of the trial and was not called as a witness. Nor was his testimony taken by deposition. Defendant Gail H. Sprague and others of the family were called. The theory of the defense in the court below was and here is that defendant Gail H. had remained with his parents after reaching the age of 21, some ten years; that the conveyance in question as to that portion of the premises above the mortgage and homestead exemptions was in payment for past services, and as to the homestead was to pay for future care and support, anything remaining therefrom to be divided between the children of Henry at his death. There was testimony in defendant's case that he was to have the 40 for his services to his parents; that there was due him at the time of the conveyance an amount equal to the value of the premises above the mortgage, figuring his wages at $25 per month, which in one part of his testimony he says was the agreed price, and there was testimony to support his claim. He admitted that his needs have been provided from the farm, admitted the receipt of a horse from his father but claims it was given to him. The trial judge who heard and saw the witnesses did not give credence to his claim that he had earned and had coming to him the value of the premises above the mortgage and exemptions, but concluded that the conveyance was made as a consideration for future support and upon the authority of Rynearson v. Turner, 52 Mich. 7, and Walker v. Cady, 106 Mich. 21, sustained the bill. In determining the case he said:

“After being furnished with very studiously prepared briefs in the case I can come to no other conclusion than that the conveyance in this case, so far as the plaintiff in this case is concerned, was fraudulent. The defendant has not made out a harmonious defense, and I am led to believe the case should be governed by the case in the 52d Michigan, page 7, and the 106th Michigan, page 25.

“The relief sought by the plaintiff in this case should be granted, and decree will be drawn accordingly.”

While this court hears the case de novo we must recognize the advantage possessed by the trial judge who saw the witnesses, heard their testimony, noted their demeanor on the stand, their candor or want of candor, and was thus able to measure their credibility. Peets v. Peets, 156 Mich. 87; Thompson v. Hurson, 201 Mich. 685; Crampton v. Crampton, 205 Mich. 233. A careful reading of all the testimony offered on behalf of defendants fails to convince us that the trial judge incorrectly weighed and measured their claims. The judgment involved was the renewal of a former judgment; the indebtedness was an old one. For many years during its existence defendant Henry Sprague was execution proof due to the title to the farm being held by him and his wife. Upon her death the title vested in him by right of survivorship. Before he buried his dead, he and other members of the family bestirred themselves so that the title was again placed where he was execution proof. While it was competent to prove by the attorney, who acted as scrivener, the circumstances of the transaction, what was told him by the parties is not evidence of the facts stated by them. We are disinclined to disturb the conclusion of the trial judge on the facts. But the decree as signed, we think, went too far. It set aside the deed in toto, and authorized the sheriff to sell the entire premises. To the extent of $1,500 these premises were exempt, and the defendant Henry Sprague could deal with such exempt property as he saw fit and no creditor could complain. It could not be sold to satisfy plaintiff's claim, and its conveyance would not be in fraud of plaintiff's rights. Fischer v. McIntyre, 66 Mich. 681; Anderson v. Odell, 51 Mich. 492; Cullen v. Harris, 111 Mich. 20 (66 Am. St. Rep. 380); Eagle v. Smylie, 126 Mich. 612 (86 Am. St. Rep. 562); Rhead v. Hounson, 46 Mich. 243.

The decree of the court below should therefore be modified so as to exclude from its operation, and to relieve from the levy, the homestead as to the value of $1,500. As so modified it will be affirmed. No costs of this court will be allowed.

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

LISTER v. SAKWINSKI. 1. BROKERS—PRINCIPAL AND AGENT-DUTY OF BROKER. A real estate broker in the employ of his principal, 18

bound to act for his principal alone, using his utmost

good faith in his behalf. 2. SAME-COMMISSION-CONTRACT CONSIDERATION_VALIDITY. A promise by one of the principals in an exchange of real

estate, after the negotiations were completed, to pay a On right of real estate broker who acts for both parties to commissions, see notes in 45 L, R. A. 44; 24 L. R. A. (N. S.) 659. commission to the other party's broker, to whom he owed

nothing, is void for want of consideration. 3. SAME-CONSTRUCTION OF CONTRACT.

A clause in a contract signed by the principals in an ex.

change of real estate, acknowledging that certain brokers had brought about the sale and agreeing to pay the regular broker's commission, construed, in view of 3 Comp. Laws 1915, § 11981, and held, to be for the purpose of making written evidence of agreement of the parties to pay their respective brokers the commission on their respective properties, and was no authority for the broker of one principal to maintain an action for commission against the other principal by whom he was not em. ployed.

Error to Wayne; Murphy, J. Submitted April 23, 1919. (Docket No. 95.) Decided May 29, 1919.

Assumpsit by W. Sherman Lister against Nicholas Sakwinski and another for commissions on the sale of real estate. Judgment for plaintiff. Defendants bring error. Reversed, and no new trial ordered.

Charles Bowles, for appellants. Lucking, Helfman, Lucking & Hanlon, for appellee. FELLOWS, J. The defendants owned an apartment house located on East Grand Boulevard in the city of Detroit. They listed it for sale with a real estate agent named Claxton. One La Bounty owned a large farm in Alger county and listed the same for sale with the plaintiff. Defendants and Mr. La Bounty and wife with the assistance of their respective brokers, Claxton and plaintiff, concluded an exchange of their properties. It fairly appears that the apartment house was put in in the trade at $100,000. There was a mortgage on it at the time for $46,000, and La Bounty paid defendants $24,000 in cash and conveyed to them the Alger county farm. This farm was treated in the trade as worth $42,000 and there was a mortgage on it for $12,000, making its agreed value in the trade above the mortgage $30,000. La Bounty paid plaintiff for his services in the transaction $1,500, which was the regular commission on unimproved property, treating the value of the farm at $30,000. Plaintiff insisted that he was entitled to more commission out of the transaction than was Claxton as he had done more to bring about the deal, and Claxton agreed that he should have $600 out of his commission. Pursuant to an order given by Claxton, defendant gave his check for this amount to plaintiff and settled with Claxton for the balance of $1,450 agreed to be due him for his services in effecting the deal. Subsequently plaintiff requested Claxton to join in a suit against defendants for recovery of a claimed unpaid balance of commissions. This Mr. Claxton refused to do on the ground that he had been paid in full his commission and had no further interest in the matter. Plaintiff brings this action and seeks to recover on the following clause found in the contract for the exchange of properties entered into by defendants and the La Bountys:

The parties to this agreement hereby acknowledge that W. Sherman Lister and Frank W. Ciaxton brought about this sale and agree to pay to them the regular broker's commission therefor upon their respective properties."

It is the theory of the plaintiff that by this provision defendants agreed to pay the regular brokers' commission, three per cent. on improved property, to the brokers jointly; that Claxton having refused to join in this proceeding he may recover the three per cent. on the value of defendants' property as agreed in the deal, such recovery being had under the provisions of the judicature act (section 2, chap. 12, Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, $ 12353), which provides that actions shall be prosecuted in the

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