4. WITNESSES-EXPERT AND OPINION EVIDENCE- COMPETENCY

VALUE.

A carriage manufacturer who had hired carriage trimmers for many years by the piece, although not by the day, is, prima fucie, competent to testify to the value of trimmers' services by the day in that locality.

5. CONTRACTS-SUNDAY LABOR-EVIDENCE.

It is competent to prove that claimant worked on Sundays, to show his faithfulness, where no compensation is asked for the labor.

Error to Lenawee; Chester, J. Submitted February 23, 1909. (Docket No. 100.) Decided May 26, 1909.

John Frank Hialey presented a claim against the estate of John R. Hialey, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. A judgment for claimant is reviewed by defendant on writ of error. Affirmed.

William J. Ingersoll, for appellant.

Garland R. Gillespie and Smith, Baldwin & Alexander, for appellee.

HOOKER, J. John Frank Hialey filed a claim for services against the estate of his father, John R. Hialey, deceased, a former resident of Tecumseh. It was disallowed by commissioners in the probate court, but upon appeal a verdict of $8,000 in claimant's favor was rendered by a jury in the circuit court. The order usual in such cases was entered, and the cause is before us on writ of error at the instance of the administratrix.

There is testimony in the record indicating that the claimant worked in his father's buggy factory for many years up to the time of his death; that from childhood and up to the time that his father died he lived in the family. No witness testified to any interview between claimant and his father which could be called an agreement in relation to the subject, and claimant's counsel

rely upon certain evidence, which they say justifies an inference that there was a mutual understanding that claimant was to receive pay for his work at going wages.

An express contract is essential to overcome the presumption that a son who continues to live with his parent is not entitled to compensation for his services; i. e., the law will not imply a contract from the mere rendition of services in such a case, it being presumed that they are members of one family contributing to the common support. Such a contract may be proved, however, by the admission of the party to be charged.

In the present case there is testimony that the father stated that claimant was not in copartnership with him, but was in his employ like any other man. He also stated that he had plenty coming to him to pay for a horse, under circumstances from which an inference might reasonably be drawn that it was coming from him for his son's labor. To another witness he said that he was in trouble because his boy wanted to settle with him, with a view to going to work for another person, and, if he did, he should have to shut up his shop. There was other testimony of similar tendency. This was sufficient to carry the case to the jury, and it was competent evidence. There was other evidence in the case that was consistent with the theory that deceased expected to leave claimant the property when he was through with it. It was not competent to prove a contract, and perhaps was not relied on as being such, but it is a difficult matter to separate it from other testimony which tended to show that Frank worked in his father's shop, how much he worked, the character of his services, and the degree of satisfaction his services gave his father. Thus one Elmer Lockwood, who worked at deceased's factory, said:

"Deceased used to tell me to do as Frank did, and I would win out.”

And

"He said, "If I would attend to my business, there

might be a chance some time of my being a foreman around there.'

Also:

"He said that Frank had worked for him a great many years, and hadn't drawed much money, fooled away very much, and that he would sometime undoubtedly own that business."

Counsel for contestant made innumerable objections to this testimony, and in our opinion may thereby have been responsible for giving it undue prominence in the minds of the jury. The testimony seems to have been admissible for some purposes, and, although some of it did not justify an inference that a contract was made, it did throw light on the relation, and, as far as it went either way, gave some plausibility to defendant's claim that no contract was made.

A carriage manufacturer's testimony as to the value of services was objected to upon the ground that he never hired men by the day, but by the piece, and therefore was not competent to testify. This was all the testimony as to the value of claimant's services. The witness said he had built carriages for 49 years in Adrian, but he did not testify that he had any knowledge regarding the value of trimmer's wages except as it is inferable from his hiring trimmers by the piece. We think there was a prima facie showing of competency. Counsel did not attempt to show his incompetency on cross-examination, except to get him to say that he never hired by the day. In showing the faithfulness of claimant it was shown that he worked Sundays. We do not discover that compensation was asked for such work.

We discover no other assignments that require discussion.

The order of the circuit court is affirmed.

BLAIR, C. J., and GRANT, MONTGOMERY, and OSTRANDER, JJ., concurred.

Under a contract for the sale of land providing for an abstract showing a merchantable title in the vendors, an abstract. of title showing the foreclosure by advertisement of a mortgage covering the premises, does not comply with the agreement if it fails to disclose that the mortgage contained a power of sale.

2. SAME.

A recital in the sheriff's deed that the mortgage contained a power of sale is no evidence of the fact.

3. SAME-FORECLOSURE BY ADVERTISEMENT.

A foreclosure by advertisement is only valid where a power of sale is contained in the mortgage.

4. PUBLIC OFFICERS SHERIFF-PRESUMPTIONS.

The presumption that a public officer has done his duty can only apply to such acts of the officer as the law requires, and cannot be made the basis of authority to act for a mort

gagor.

5. APPEAL AND ERROR-NEW TRIAL.

A new trial will not be refused on reversal where evidence was introduced which might have been submitted to the jury as a question of fact that would entitle the plaintiffs to recover.

Error to Lenawee; O'Mealey, J. Submitted February 24, 1909. (Docket No. 106.) Decided May 26, 1909.

Assumpsit by Edward S. Bryan and another against Strauss Brothers & Company upon a land contract. A judgment for plaintiffs is reviewed by defendant on writ of error. Reversed.

D. B. Morgan and A. F. Biggs, for appellants.

Smith, Baldwin & Alexander, for appellees.

BLAIR, C. J. On the 31st day of October, 1906, plain

1 Rehearing denied September 21, 1909.

157 MICH.-4.

tiffs and defendants entered into a written contract for the purchase by defendants of plaintiffs of certain real estate in Lenawee county for the sum of $2,800. By the terms of the contract plaintiffs agreed to convey to defendants "a merchantable title in fee simple to said premises free of all incumbrances;" the deed to be delivered within 10 days to the Adrian State Savings Bank and held in escrow until defendants complied with their part of the contract. Plaintiffs also agreed to procure and deliver within 30 days an abstract of the title to said premises, compiled by a competent and responsible abstracter, showing title as aforesaid

"All of which shall be subject to the approval of the second parties, and to cause all defects therein to be corrected by the 1st day of January, 1907, and if not corrected by that time the second parties are hereby authorized at their option to cause the same to be corrected, in which event the expenses therefor shall be paid by the first parties or be deducted from the purchase price owing by the second parties for said premises."

Defendants agreed to pay $600 down and the balance of the purchase price on or before March 1st, provided that, if plaintiffs had not performed the contract on their part by that time, defendants "may withhold such payments until the same has been done."

Shortly before January 7, 1907, plaintiffs furnished to defendants an abstract of the title in question, to which numerous objections in writing were made by defendants; corrections were made obviating some of the objections; new lists of objections filed and corrected from time to time, until all of the objections were satisfactorily met except those numbered 11a, 11b, and 17. The objecjections under 11a still open were: That a certain mortgage of the premises from Sally Hagerman to Juliette J. Schureman was not shown by the abstract to contain a power of sale, and therefore disclosed no authority for a foreclosure and sale by advertisement; that the abstract showed the estate of said Sally Hagerman to be still open;