plaintiff. Plaintiff had sailed the Ionia for defendant the previous season, and at the close of that season laid the boat up at Sandusky on December 13th and came at once to Detroit. He had a conversation with defendant's president, Thompson, on the 18th of that month, wherein he alleges the contract was made for the ensuing season. He testified: That it was the general custom between owners and masters of vessels of that character to make verbal contracts, and that "The usual time for employing a master on steamboats is when the boat is laid up. You settle your employment right away, or they notify you that they don't want you any more, one or the other. The Lake Carriers' Association meets about the 16th of January, and unemployed captains are generally picked up about that time. The chances of employment of a master thrown out of employment after the Lake Carriers' meeting in January are not good, because at that time they usually have employed the masters they need." That in their conversation on the 18th of December defendant's president informed him that the boat was for sale, or at least a part of her. ""Then,' I said, 'You don't want to engage a captain until you find out whether you are going to sell her?' 'Oh, yes, I do,' he said. "If you want her, I want you to hold yourself in readiness. If I find a buyer, you can go to Sandusky and show them around there.' I said, On what terms would you engage me?' and he said, 'That is all right.' I said, 'On the same terms?' and he said, 'Yes, that is all right.' I said, 'All right, sir; I will be at your service any time you call upon me.' Under what he said, 'The wages was $1,400 last year, and if that is satisfactory-' 'Why,' I said, 'all right, sir.' He said: 'I am too busy today. I haven't a great deal of time to talk to you about it, but you can come up again some time.' That after a talk with Capt. Pratt on March 9 or 10, 1906, plaintiff went up to see Mr. Thompson, and— "He said that Capt. Pratt is figuring on buying an interest in the boat, and of course, if he buys her, he will sail her; so I said, then of course I better look around for another situation, and he said: 'Oh, no; I have not thrown you down by any means yet. We should hear from the captain by this time.' That was somewhere about the 10th or 12th of March. They didn't buy an interest or ownership in the boat, as I know of, during the season of 1906." That on the 20th or 22d of March he was informed by Capt. McLean that he had been employed to sail the Ionia for a compensation of $1,400, for the season of 1906, and he learned about that time that he was not going to be employed by the company for the coming year. That he held himself in readiness to perform his part of the contract during the season of 1906, but obtained such employment as he was able to, working about 86 days on four boats during the season. That at the time of his talk with defendant's president in December, he did not understand that there were any negotiations pending at that time which he expected to close during the year 1906. "But he wanted to sell her. He wished to dispose of the boat, and, if he did not dispose of her, he would take me on, and, if he disposed of it, the persons who bought it would probably want to select their own master. That is the understanding I had December 18, 1905. * * * He called my attention to the fact that she was for sale for several seasons before. "Q. And this was conditioned upon her not being disposed of? * * "A. Yes, there was that condition, if he did not sell her. * At the end of the season Mr. Thompson said there was $104.10 coming to me, that he would give me $54.10 and leave the balance standing until I made a trip in the spring, and Mr. Otis will be a witness to that. I said that is all right, I was satisfied. He then paid me $54.10. There was no discussion about the balance. He himself said it was $104.10. He said he could promise me the balance when I made a trip with the boat in the spring. The only thing that stood in the way of my being hired was in case he sold the boat. It was distinctly understood that, if he did not sell it, I would take the boat." While the testimony of plaintiff is not entirely definite, and is subject to different inferences, we do not think it can be said, as a matter of law, that the plaintiff did not bind himself to perform the conditional agreement. He states that it was distinctly understood that, if defendant did not sell the boat, plaintiff would take the boat, and it is fairly inferable from his testimony that he agreed to accept $1,400, the same as the terms for the season of 1905, and to be at the service of defendant any time it should call upon him. The contract is to be construed with reference to the custom prevailing, according to the testimony of plaintiff, of employing the master at the close of the preceding season, and, where the testimony is susceptible of different inferences, those inferences are for the jury, and not for the court. We do not think it necessarily follows, because defendant's president said: "I am too busy today. I haven't a great deal of time to talk with you about it, but you can come up again some time". that he meant thereby to postpone the consideration of the contract, since it might have referred to subsequent details. If, In addition to the reason assigned by the court of lack of mutuality in the contract, counsel for defendant also contend that the direction of a verdict should be sustained because the contract was indefinite and conditional. as we have held, the contract was mutual and bound the plaintiff, we think the objection that it was indefinite is without force, since the term of employment and the compensation therefor and the duties to be performed were sufficiently defined. The objection that the contract was conditional is, so far as not already covered by this opinion, that there was no evidence whether or not the steamship was sold in whole or in part, and that it was incumbent upon plaintiff to show that the boat was not so disposed of before he would be entitled to any compensation whatsoever. This point was not raised in the court below and was not raised by the pleadings. The condition disclosed by the testimony of plaintiff, that his contract of employment was to be annulled if the boat was sold, if so found by the jury, was a condition subsequent, which the plaintiff was not obligated to set up in his declaration, but was a matter of defense which should have been pleaded by the defendant if it desired to rely upon such defense. 4 Enc. Pl. & Prac., p. 627; Redman v. Insurance Co., 49 Wis. 431 (4 N. W. 591). Judgment is reversed, and a new trial granted. OSTRANDER, MOORE, MCALVAY, and BROOKE, JJ., concurred. COX v. FIDELITY & DEPOSIT CO. OF MARYLAND. 1. SURETYSHIP-NEGLIGENCE-BOND. On demurrer to a declaration based on a contract signed by one defendant as principal and the other as surety to indemnify any person against injury caused by neglect of the principal in the construction of walks, in conformity with regulations of the municipal board of public works requiring protecting barriers and night lamps, a failure to maintain a barrier in a reasonably safe condition, and failure to provide lamps, was within the terms of the bond. 2. SAME-PARTIES-MISJOINDER-ASSUMPSIT. An action may be maintained for a breach of the conditions of the bond against both principal and surety, and is not subject to the objection that the cause of action against the principal sounds in tort. 3. SAME-PARTY PLAINTIFF-ACTIONS. A person injured by the default may sue upon the bond, although it runs to the city for the benefit of the person injured, with a provision in the recitals thereof that persons injured might bring the action, and without such provision could maintain suit as a person for whose benefit the bond was executed. 4. PLEADING-DECLARATION-TIME. An averment that the injury occurred within the period named in the bond may be inserted by amendment. Error to Marquette; Stone, J. Submitted April 6, 1909. (Docket No. 62.) Decided May 26, 1909. Assumpsit by Margaret Cox against August Anderson and William Kilbride, copartners as Anderson & Kilbride, principals, and the Fidelity & Deposit Company of Maryland, surety, upon a building contractor's bond. A judgment sustaining a demurrer to the declaration is reviewed by plaintiff on writ of error. Reversed. C. F. Button and J. M. Edgerton, for appellant. BROOKE, J. The plaintiff in this case is a nonresident of the city of Ishpeming. The defendants Anderson & Kilbride, a copartnership, were during the year 1906 contractors laying cement sidewalks in said city. The defendant the Fidelity & Deposit Company of Maryland had executed a bond to the city of Ishpeming. On the 23d day of October, 1906, the plaintiff avers that she was injured by falling over an uncompleted walk being constructed by Anderson & Kilbride; the said walk at the time being protected by a defective barrier, and unlighted. She sets up in her declaration the bond in question, as follows: "Know all men by these presents that Anderson & Kilbride, as principal, and Fidelity & Deposit Company of Maryland, as surety, a corporation duly authorized to do business in the city of Ishpeming, Marquette county, Michigan, are held and firmly bound unto the city of Ishpeming, a municipal corporation in said county and State, in the sum of one thousand dollars ($1,000.00), lawful money of the United States, to the payment of which sum well and truly to be made, we do bind ourselves, our and each of our heirs, executors, administrators and assigns, jointly and severally, firmly by these |