On motion of defendant's counsel the trial court directed a verdict of no cause of action, telling the jury in a charge of some length the reasons for so doing. Numerous errors are assigned by plaintiff against various portions of the charge, but one of which calls for serious consideration. In concluding the charge, during which other issues involved were disposed of as questions of law, the court stated that while plaintiff would be entitled to recover in the proper tribunal the $50 paid defendant to apply on the purchase, he could do so only in a justice's court where rested exclusive original jurisdiction in all civil actions wherein the amount involved did not exceed $100.

While counsel for plaintiff claimed at one time during the trial that he was deceived into purchasing the property and his action is not planted on a breach of the contract, apparently upon some theory of fraudulent inducement to enter into the contract, his grievance as disclosed by his pleadings and proofs is that defendant would not, and after the lot was conveyed to others could not, perform the contract, while plaintiff was always ready and anxious to perform on his part. He so asserts in his declaration, which sounds in assumpsit, and in it “alleges that by reason of the nonperformance of this contract by the said defendant, he has sustained damages in the sum of twenty-five hundred dollars." The fact that he failed on the trial to prove recoverable damages exceeding $100 did not divest the court of jurisdiction to give him judgment for whatever he was able to prove. Defendant as agent for an undisclosed principal received the money from plaintiff under this contract for a specified purpose to which he did not apply it.

It was early held in this State after a full discussion of the subject that in actions arising out of contract, jurisdiction of the court is determined by the amount demanded in the plaintiff's pleadings, not by

the sum actually recoverable or that found by the judge or jury on the trial, the only effect of failure to recover in the circuit beyond the amount the party could have recovered in justice's court being the award of costs against him. Strong v. Daniels, 3 Mich. 466. This case has been cited with approval and followed when applicable in later decisions. King v. Railroad Co., 16 Mich. 132; Inkster v. Carver, 16 Mich. 484; Stortz v. Ingham Circuit Judge, 38 Mich. 243; Meyer v. Wood, 38 Mich. 297; Nelson v. People, 38 Mich. 618; Lewis v. Railway Co., 56 Mich. 638; Berndt v. Ionia Circuit Judge, 111 Mich. 359; Reed v. Overlie, 192 Mich. 444. Defendant's claim that the $50 was tendered back is not tenable. Mailing plaintiff his private check, which was refused, did not serve as a legal tender. Whether his check would have been good is immaterial. Each of these parties stands strictly on his legal rights. The court is not required in this proceeding to pass upon the financial responsibility or moral code of this real estate agent, nor the business wisdom of plaintiff in accepting from him so loose and plainly unilateral an instrument as that upon which he relies, and must necessarily rely, for he never was in possession of the realty to which it relates and any oral agreements made between them in relation to it are of no validity.

Plaintiff presumably read or heard read this paper before he signed it, and knew what it provided. He does not claim any misrepresentations were made to him as to its contents at the time he signed it or before. He stated that the matter of reading it was called to his attention by the man who brought it to him. His only testimony as to Miller's representations before the paper was signed is:

"I had been up there prior to signing the contract and looked at it and then talked to Mr. Miller about it. In boosting the proposition he said that it was

nice property, it would be worth more, pretty near double the amount it was worth then, that it was near the schools and near the Ford factory, and I could get a job in the Ford factory, and all those things he told me. I relied upon his statement and representations, and a day or two after that they came down with the contract and I signed it."

While this crude writing which plaintiff accepted and signed was defendant's composition and where construction is permissible should be most strongly construed against him, its plain provision that the $50 then deposited is but half of the first payment, the sale to be closed when the other half is paid, and "This deposit accepted subject to owner's approval," leaves in that simple wording no room for construction. In its opening paragraph Miller is shown to be an agent representing an unnamed principal who never signed the agreement or approved it so far as shown. It must be admitted that other provisions are noticeably less clear and definite. It is left to construction whether Miller or the party he represented, or both of them, constitute the "party of the first part," multiplied to "parties of the first part" where last referred to; but construing it most strongly against Miller, he as party of the first part agrees to sell and convey to the parties of the second part "6 rooms and a bath," appurtenant to which it is fairly inferable are a house and designated lot which the parties had in mind and intended to include in the deal, followed by price and terms with provision for a "deposit accepted subject to the owner's approval." The writing nowhere states Miller is the owner, but on the contrary that he represents some one else, and the proof is that he was not the owner. Until approved in writing, a written agreement of this kind made subject to approval depends for its value, like an oral agreement to sell real estate, chiefly on the integrity of the owner or his agent.

But, even conceding that this writing upon which plaintiff relies did amount to a binding contract to sell which defendant has breached, entitling plaintiff to recover damages, his proposed proof upon that subject was not directed to the proper measure of damages, which the trial court explained in sustaining objections to it. The claimed breach occurred December 16, 1915, when the lot was deeded to the school board. No attempt was made to prove the difference in value of the property at the time of the contract and its value at the time of the breach. Plaintiff's counsel contended on the trial that the measure of damages was "the difference between the price at the time this property was sold and the amount of value of the property up until the close of this litigation" and directed his questions, objection to which was sustained, to the' value of the property "at the present time" (June 20, 1918). There was no error in the rulings of the court in that particular.

The record contains no legal evidence of damages sustained by plaintiff beyond the deposit of $50 with defendant for which amount, with interest, he was entitled to a judgment, with costs against him.

For this error the judgment is reversed with costs to plaintiff, and a new trial granted.

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

WHITE v. WADHAMS.

1. APPEAL AND ERROR-MODIFICATION OF DECREE OF SUPREME COURT BY COURT BELOW.

A supplemental bill filed by plaintiff in the court below, after the case was remitted to be there enforced under 3 Comp. Laws 1915, § 13761, by which it is sought to increase the amount found by this court to be due plaintiff by adding by way of penalty the amount of costs which plaintiff has since said decree was entered been required to pay, held, to be an attempt to change the decree. 2. SAME JUDGMENT-DECREE OF SUPREME COURT-MODIFICATION

BY COURT BELOW.

In a chancery appeal the Supreme Court hears the case de novo, and the decree entered is a finality; therefore the trial court may not, where the case is remitted to be there enforced, without first obtaining leave of this court, reopen the case and change or modify the decree of this court.

3. SAME LACHES-PLEADING.

Where plaintiff is seeking by this supplemental bill to recover costs incurred in this court on the former appeal, he cannot be said to be precluded by laches although some of the facts alleged came to his knowledge on the hearing in the court below.

4. SAME PLEADING

CONTEMPT-REMEDY-STATUTES.

Held, that this supplemental bill seeks something more than statutory contempt proceedings, which might have been instituted under 3 Comp. Laws 1915, § 12270.

5. SAME NUNC PRO TUNC ORDER-CONDITIONAL ORDER-PAYMENT OF COSTS.

On condition that plaintiff pay the taxed costs of this appeal within 30 days, an order will be entered in this court granting nunc pro tunc leave to file this bill, when order appealed from will be affirmed.

Appeal from Kent; Brown, J. Submitted June 6, 1919. (Docket No. 70.) Decided July 17, 1919.