Waters v. Johnson, supra, from the case at bar. The notice of the lien in question served upon the defendant Piatt Power & Heat Company served no purpose, because it conveyed no information to them that the complainant was furnishing labor or material for any person or corporation with whom it held contractual relations.

Decree affirmed.

OSTRANDER, HOOKER, MOORE, and MCALVAY, JJ., concurred.

RODGERS SHOE CO. v. COON.

1. PRINCIPAL AND SURETY — RELEASE.

No material variation is shown in the performance of a suretyship agreement which binds the principal to pay for all money and property received, where he deducted amounts due him before making remittances; and where no provisions were inserted in the bond requiring different action. 2. SAME-CONSTRUCTION.

Contracts of suretyship are construed strictly in favor of the surety.

Error to Wayne; Hosmer, J. Submitted June 21, 1909. (Docket No. 49.) Decided July 6, 1909. .

Debt by the Rodgers Shoe Company against Henry F. Coon for the amount of a bond. A judgment for plaintiff is reviewed by defendant on writ of error. Affirmed.

J. Lawrence Hibbard (Stevenson, Carpenter & Butzel, of counsel), for appellant.

James G. McHenry (John C. Bills, of counsel), for appellee.

MCALVAY, J. Plaintiff brought an action in debt in justice's court in the city of Detroit against defendant, who was a surety on a certain bond given to plaintiff in July, 1903, in which George Pickhaver, an agent of plaintiff, was principal. This bond was in the sum of $500, and was conditioned as follows:

"The condition of the above obligation is such that if said George Pickhaver shall pay to the Rodgers Shoe Co. any and all moneys or other property received by him while in the employ of the Rodgers Shoe Co. belonging to said company then this obligation to be void, otherwise to remain in full force and virtue in law."

Plaintiff declared upon this bond, and defendant pleaded the general issue. Upon the trial before the justice without a jury plaintiff's evidence consisted of oral testimony and depositions of witnesses. Defendant offered no evidence. Judgment was rendered in favor of defendant, whereupon plaintiff removed the case to the circuit court by certiorari. In that court the judgment was reversed, and a judgment entered for plaintiff for the amount claimed.

The case is before this court upon writ of error without a bill of exceptions, under Sup. Ct. Rule 11, to review the judgment of the circuit court. The question raised which should be considered first is whether there was evidence in the case before the justice showing an unpaid indebtedness to plaintiff from the principal in the bond, arising out of money received by him belonging to the plaintiff while employed by it. It will not be necessary to review the testimony in the case on the part of plaintiff. The justice so found, and such finding was based upon abundant evidence to support it.

The remaining error assigned necessary to discuss relates to the claimed variation of the suretyship contract. It is urged that a material variation of such contract is clearly established by the plaintiff's evidence in the case. Plaintiff's evidence shows that Pickhaver, the principal in the bond, entered the employment of plaintiff in July,

1903, selling leather and rubber goods in Detroit for it, and was authorized to make collections for such sales, and remit to Toledo, Ohio; that he was allowed to retain out of collections money for rent of office, commissions, and expenses; that his balance was struck annually at the end of the year; that on December 31, 1903, there was a balance due him of $102.80, and when his employment ceased on December 5, 1904, there was found to be a balance due from Pickhaver to plaintiff of $348.15, which is the amount in suit. Pickhaver died before the commencement of this suit. The condition of this bond is in simple language, and it would be hard to express its purpose in fewer or more appropriate words.

We do not find that in any respect the contract of suretyship was varied by the acts of plaintiff in its relations with the agent, Pickhaver. That the law requires strict construction of these "social" contracts of suretyship is recognized, and any material variation is fatal to an enforcement. The cases cited are accepted as authority for the proposition, but neither the rule of law nor the authorities are applicable to the case at bar. Pickhaver, during the life of this contract, received money belonging to plaintiff while in its employ, which he did not pay over. Plaintiff in its dealing with its agent cannot be said to have been careless or negligent. Neither it nor Pickhaver made any contract with the surety as to remittances or times of settlement. The contract of suretyship was not made with reference to plaintiff's relations to Pickhaver, except as expressed by its terms. There is abundant authority that the surety's liability has not been affected by the dealings between plaintiff and the principal as disclosed by this record. Cumberland Building Loan Ass'n v. Gibbs, 119 Mich. 318 (78 N. W. 138), and cases cited; Lancashire Ins. Co. v. Callahan, 68 Minn. 277 (71 N. W. 261, 64 Am. St. Rep. 475); Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85 (41 Am. Rep. 196); Wilkerson v. Insurance Co., 64 Ark. 80 (40 S. W. 465, 62 Am. St. Rep. 152); Phenix Ins. Co. v. Findley, 59

Iowa, 591 (13 N. W. 738); Pacific Fire Ins. Co. v. Surety Co., 93 Cal. 7 (28 Pac. 842).

The circuit court was not in error in reversing the judgment of the justice's court.

The judgment is affirmed.

OSTRANDER, HOOKER, MOORE, and BROoke, JJ., concurred.

DALM v. BRYANT PAPER CO.1

1. MASTER And Servant-MINORS-STATUTES.

A child under sixteen years of age, employed in a manufacturing establishment at labor wherein danger to life and limb is involved, does not assume the risk of a fellow-servant's negligence, under Act No. 113, Pub. Acts 1901.

2. SAME.

Where the child was first employed to see that paper being rolled into sheets wound evenly on the rollers, and he was sent by another employé on the machine to take out damaged sheets from the machinery, which caught the paper and drew his hands between the rollers, the fellow employé in giving such directions represented the master.

The doctrine of assumed risk, being predicated on a contractual relation, is not binding upon a child employed in violation of the statute.

4. SAME-WARNING AND INSTRUCTING SERVANTS. Failure to warn and instruct the servant regarding dangers attendant upon the work at which he was engaged at the time of his injury, is not excused by general instructions regarding the danger of the other work at which he was first employed.

'Rehearing denied November 5, 1909.

5. TRIAL-ARGUMENT-INSTRUCTIONS TO JURY.

The jury may be instructed that they are to be guided by the evidence, not by statements of counsel concerning it.

Error to Kalamazoo; Adams, J. Submitted October 15, 1908. (Docket No. 96.) Decided July 15, 1909.

Case by Jacob Dalm, by next friend, against the Bryant Paper Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error. Affirmed.

E. M. Irish and Fred L. Vandeveer, for appellant. D. O. French, for appellee.

MCALVAY, J. Plaintiff, by his next friend, brought this action for damages against defendant, a paper manufacturing corporation, for personal injuries received while in its employment. Plaintiff was between 15 and 16 years of age. He was employed on a paper machine in the plant of defendant, April 30, 1907, as a “winder boy." His injury occurred on May 13th following, while he was between what is known as the "calender stacks," taking out "broke" paper, which breaks while going through the rollers of the calender stacks, and becomes torn, tangled, and sometimes cut into pieces, and falls upon the floor between them. In this part of defendant's plant were three paper machines, the one in question being a machine extending nearly the entire length of the building, which at the "wet" end receives the pulp, and, carrying it along over and through the machinery in a continuous sheet, finally delivers it at the calender stacks for the purpose of finishing. These stacks consist of rollers, one above the other to the height of about 12 feet. The machine manufactures about 200 feet of paper per minute. The stacks are 5 feet apart. The paper passes between the several rollers of the first stack, and then across to the second stack, and through its rollers, where it is ironed smooth and finished. After