pretend to represent the Michigan mine here, | turned to Grand Rapids he expected he would and especially those who claim to represent call upon him. As he did not do so plaintiff your interest, are throwing cold water on the made up his mind he would not call to see whole business. You had better come here defendant. February 23, 1888, he comyourself. I think there is money in that menced this suit in the superior court for mine, but of course I have not seen it, and the city of Grand Rapids, in assumpsit, can only judge from hearsay, and that is only claiming $950 for services and expenses. slight. I wrote you, I think, that Mr. Hol- He obtained a verdict for $756, apd judglister and Mr. Withey passed through here ment was entered against the defendant for night before last on their way to Utah, to that amount. look after their mining interests; they mean business, and those who expect to realize money from the Michigan mine or Centennial mine must mean business also. There is no doubt in my judgment but there is money in both these mines, but it can never be got out by men who sleep all day and 'bum' all night. Let me hear from you.ters passed between the defendant and himIf you are not coming here I shall probably not remain. I think I shall stay until you come or I hear from you. I think I have made the acquaintance of all the principal men in and about Laramie. I have visited several ranches; at one I spent three days, and had a very grand time. You write me that you have written to Wolcott requesting him to come here. If you expect anything from him or the Innises to develop your mine, you had better sell out at once.

"Yours, truly, ISAAC H. PARRISH." The letter from Long, referred to in Bradley's letter, was offered in evidence by defendant, but excluded. It reads as follows:

"LARAMIE, Wyo., 5-16, 1887. "William Bradley, Parksville-DEAR SIR: There is nothing new since my last, only Judge Parrish of Grand Rapids is here, and I think he will locate here; he likes the country so well. He wants to know when you are coming out, and is anxious to see you.

The chief objection against this verdict and judgment is that there was no evidence to go to the jury in support of it. It is certainly a remarkable case upon the plaintiff's own showing, and there is much force in the argument of defendant's counsel that, upon the testimony of the plaintiff, and the letself, the verdict should have been directed against him. The defendant admitted that he had a talk with plaintiff, and told him that he thought he better go to Laramie. That he could do well there. That it would be a good place for the judge to open up a law business. That in the spring of the year the defendant thought they would develop the mine, form a stock company, and would require more or less of a lawyer to do the business, and whatever they had to do they would give it to plaintiff. Had no intention of hiring him to go out there, and the matter passed out of his mind, and he gave it no more thought. Met him afterwards on the street, and said to him, "You haven't gone yet." "No," plaintiff said, but “he guessed he had made up his mind to go." Defendant told him he wished he could go with him, but he could not. This was all the talk he had. Wrote the letter to him because of the letter he received from Long, and for no other reason. Never heard that plaintiff "Yours, truly, W. J. LONG, Jr." claimed that he had gone to Laramie in the The plaintiff testifies that his expenses to employment of defendant until he was sued. Laramie and back were $56.15, and at the The plaintiff introduced some corroborating hotel there for four weeks, $56; and he spent testimony to support his case. Thomas B. some money besides, getting acquainted with Church testified that he heard a conversation people. That his services for 30 days were in Judge Parrish's office between him and worth $25 per day. He went to Laramie the defendant, before plaintiff went to Laraabout the 7th or 8th of May, 1887. He saw mie, and before the judicial election, which Mr. Long, and talked with him about the took place in April, in which talk the defendmine, and knew he was interested in it, but ant spoke about the plaintiff's going to Laradid not inform him that he was in the em- mie. The substance of what he said was ploy of Bradley. Could not tell where the this: "I am glad that you can go to Laramie, mine was located. Had no instructions from I can have my business taken care of, and I Bradley what to do when he went there, and want just such a man. I want somebody received none from him while there. He tes-that knows the law, and somebody that will tifies that he did not spend two days' time in investigating the mine, and did no work except to inquire about the mine, and get acquainted with people. Had no contract with defendant what he should be paid, or that he should be paid at all, except what was said in the conversation above given in his office at Grand Rapids. Saw Bradley after he came back, but said nothing to him about the mine, or pay for his services. Only caught glimpses of him on the street. Called for him once at the Bridge-Street House, but he was gone. When Bradley re

You better write him here.

take care of my business; and you can do well out there; you can do a great deal better there than you did here. I am glad you are going." The plaintiff gave assurance in the conversation that he would go, and was getting ready to do so. Defendant said to Church: "He is the right man; he could put confidence in him; he was glad to have such a man there." O. C. Ransom, an attorney, residing in Grand Rapids, testified that at one time he was in Chicago, and met defendant there at the Commercial Hotel, and had some talk about his mine. Defendant said

he was on his way west, or about to go west, | behalf; without apprising a single person to look after his interest in mining property. that he was interested for defendant, and not Ransom jokingly said: "You had better take caring to go to the mine to see it, although me along with you. I am in Chicago, and it invited by Long to do so, and then charge will save you expense." Defendant replied the defendant attorney's fees for doing noththat he had an attorney already in Grand ing, on the ground that he was justified in Rapids, and expected him to go there. This staying there until defendant came, when was in the fall of 1886 or spring of 1887; the there was no agreement that he should wait witness could not remember which. This there for defendant. When he arrived at was the plaintiff's case as to the contract. Laramie, if in the employ of the defendant, But we think the court was right in not tak- and the defendant did not come as he exing it from the jury. Whatever may be our pected, and he knew not what to do in his opinion as to the facts, there was some evi- employment, he should have taken reasondence tending to show an employment, and, able means to find out where the defendant however slight and unsatisfactory it may was, and what he wanted him to do. This seem to us, the weight and sufficiency of it he did not do, on his own showing, and we do were for the jury. not think he could recover for any expenses or services at Laramie, after the first few days of his sojourn there, because he failed to do so. In short, his conduct at Laramie does not seem to be entirely consistent with the idea that he supposed himself at the time to be waiting or working under promised pay from defendant or in his service. The court correctly charged the jury, in this respect, at the request of defendant's counsel, as follows: "The fourth I give: It is incumbent on the plaintiff to have a definite agreement with the defendant that he was employed by him before he was justified in expending time and money for which the defendant was to be held liable; and if he was in fact so employed, it was also his duty to use reasonable prudence and diligence to procure instructions as to the nature of the service expected of him, and the time when it was to be rendered; and if, without having such instructions, he begun or attempted to begin the performance of any services for the defendant, and, after having made the commencement, he came to a stop for a lack of instructions as to what to do, and remained for days and weeks without making any effort to inform the defendant of his situation, or to ask for instructions, he cannot recover anything for the time so wasted, nor for expenses incurred during such time.'" But he qualified it by saying in explanation that this definite agreement might be one to perform generally, and further said in that connection: "And it is not necessary in order for plaintiff to recover in this case that there should have been a certain amount of money agreed upon as the consideration to be paid for the services of the plaintiff by the defendant, and, in the absence of such specific amount being agreed upon, the person performing is entitled to what his services were reasonably worth, as you find from the testimony in the case." While this is good law in the abstract, it is claimed by counsel for the defendant that it obscured the vital point in this fourth request, which they had a right to present to the jury as it was, and that the jury were thereby misled; that it caused them to overlook the question of plaintiff's right to stay at Laramie without instructions, and without seeking any, and charging defendant for time and money wasted in waiting

We think, however, that the court erred in excluding the letter written by Long to Bradley. The letter from defendant to plaintiff was introduced by plaintiff, and relied upon to support his claim of employment. That letter referred to a letter from Long. Defendant claimed that he only wrote to Parrish because of this letter; and we think he was entitled, under the circumstances, to put it in evidence. The court also erred in instructing the jury that if the plaintiff went to Laramie in the employment of the defendant, under an agreement that the defendant would also go to Laramie in a short time, "and that the plaintiff should wait for the defendant there, then the plaintiff would have a right to remain in Laramie until he received notice from the defendant that his services were no longer wanted, or until such lapse of time as would reasonably and naturally convince the plaintiff that defendant did not desire his services there." There was no testimony in the case that it was agreed that plaintiff should go to Laramie, and then remain until the defendant came there. The plaintiff testifies that there was no agreement when he should start; and, after the defendant said he was going to Ohio for two or three days, plaintiff waited four or five days for him to return to Grand Rapids, and, as he didn't come back, he "started on." And the letters negative, if they have any weight, any idea that there was any such agreement. The plaintiff states in his letter that he had written the defendant the day before, but testifies on the stand that he wrote but one letter, towit, the one given in the record. While the jury might have been warranted under the evidence in finding a verdict in favor of the plaintiff for his time and expenses in going to Laramie and returning, and for a few days at Laramie, there was no evidence by which he could recover for a sojourn of 30 days there at $25 per day, when he did absolutely no work except getting acquainted and talking with people. He had no right, under his own showing, to go out there with no instructions whatever from defendant as to what he should do in defendant's interest, and thus stay there from day to day, without trying to find defendant's whereabouts, and without making a single move in defendant's

there under such circumstances. From the size of the verdict in plaintiff's favor, we should deem this claim to be well founded. Defendant was entitled to the instruction as he asked it, and the explanation was unnecessary. See Cook v. Brown, 62 Mich. 473, 29 N. W. Rep. 46; Babbitt v. Bumpus, ante, 417. The judgment of the court below must be reversed, and a new trial granted, with costs. The other justices concurred.

TOMPKINS v. HITCHCOCK. (Supreme Court of Michigan. Feb. 1, 1889.) ASSUMPSIT EVIDENCE.

In an action on an oral agreement by defendant, that if plaintiff would introduce him to furniture dealers in a certain city, and request them to sell furniture to defendant at dealers' rates, he would pay plaintiff a certain commission on all furniture bought, plaintiff testified that he introduced defendant to a firm of furniture dealers, and requested their head salesman to sell furniture to defendant at dealers' prices, and that the salesman said he would do so, and did sell defendant a large amount of furniture. Defendant himself testified that he has no means of knowing whether or not he got the goods at dealers' prices. Held, that the jury were warranted in finding that he did get them at those prices, though plaintiff's testimony, as to the interview with the dealers, was disputed. Error to circuit court, Oakland county; MOORE, Judge.

Assumpsit by Elijah J. Tompkins against Porter A. Hitchcock. Judgment for plaintiff, and defendant brings error.

Theo. Hollister, for appellant. J. W. Robbins, for appellee.

request them, said dealers in furniture, in said city of Grand Rapids, to sell the said defendant any goods which he might purchase of them at and for the same price or prices which the said dealers in furniture in Grand Rapids would make to said plaintiff, he, the said defendant, would allow and pay to the said plaintiff, for such assistance so as aforesaid rendered, a commission of 10 per cent. on all the furniture purchased by said defendant of and from said dealers in said city of Grand Rapids. That afterwards, on, towit, the 12th day of September, 1885, the said plaintiff performed in every particular part his part of the said agreement and undertaking, as above set forth for him, the said plaintiff, to perform, at the special instance and request of the said defendant, and, by and through the aid and assistance so as aforesaid rendered the said defendant, the said defendant was enabled and did purchase furniture at the said city of Grand Rapids in bills aggregating a large amount of money, to-wit, the sum of $1,000; and, although a reasonable time for the payment of the said commission has long since expired, yet the said defendant, not regarding his said promise and undertaking, has not as yet paid the said commission of 10 per cent., or any part thereof, to the said plaintiff, although often requested so to do,—to plaintiff's damage $100, to which is added all the common counts in assumpsit. The testimony introduced by plaintiff fully supported the allegations of the declaration. Upon cross-examination, he testified that under that arrangement defendant was to have the goods at wholesale or dealers' rates; that he told him that he would request them to give defendant the same prices that they would give to plaintiff; and that he understood at that time that, if Mr. Hitchcock got no benefit from his request and his introductions, still he was to pay him the commissions on the goods he purchased. He also testified he was to get the goods for defendant at the same prices they would sell to

CHAMPLIN, J. This case was before us at the January term, 1888, (36 N. W. Rep. 742,) when the judgment was reversed, and a new trial granted. Another trial has been had, which resulted in a verdict and judgment for the plaintiff for $102.25. The declaration alleged that the plaintiff had been for 15 years engaged in the business of buying and selling furniture in the city of Pontiac, in Oakland county, and in other cities through-him for, and that would be dealers' rates; out the state of Michigan. That by reason of the experience, skill, and knowledge of the furniture business, gained and acquired by the said plaintiff in and about said furniture business, the said plaintiff was and is enabled to render material aid to persons desirous of making purchases of goods in the said furniture line. That on, to-wit, September 12, 1885, the said defendant, for the purpose of obtaining the assistance, knowledge, and skill of the said plaintiff, so as aforesaid gained and acquired, to enable him, the said defendant, to make a purchase of a large bill of goods in the said furniture line, he, the said defendant, then and there undertook and faithfully promised the said plaintiff that if he, the said plaintiff, would meet the said defendant in the city of Grand Rapids, in said state, and then and there, at the place last above mentioned, introduce the said defendant to the dealers in furniture there, in the said city of Grand Rapids, and

that he introduced defendant to Nelson, Matter & Co., manufacturers and dealers in furniture, at Grand Rapids, and to the salesman, and requested him to give Mr. Hitchcock goods at the same prices he would give to him, and the salesman said he would do so. It appears, further, that there was testimony tending to prove that defendant purchased $1,000 worth of goods from Nelson, Matter & Co., and refused to pay plaintiff any commission. The defendant requested and the court charged the jury that the burden of proof was upon the plaintiff to satisfy them, by a preponderance of evidence, that the defendant was furnished the furniture bought by him at Grand Rapids at dealers' or wholesale rates, and that, if they were unable to say from the proofs that defendant was furnished the furniture in question at wholesale or dealers' rates, then their verdict should be for the plaintiff for the amount proved to be due him for the articles furnished defendant

3. After refusing such instruction, an instruction that the jury must find that defendants' agent, the goods should go into the stock, and that the knowing of the mortgage, "consented in fact" that mere fact that he made out the bills as requested by the mortgagor would not constitute such consent, is erroneous, as containing no reference to the effect that the settlement and taking the notes would have, and as leading the jury to believe that the agent must have made a positive declaration of consent to the goods going into the stock. 4. Plaintiffs can maintain replevin without a previous demand for the goods, and without waiting until the sheriff, a co-defendant, who is in p03session under the attachment, completes an inventory of them, the mortgage at the time being properly filed, where the sheriff, on being informed that it is a valid lien on the goods, says that he does not recognize it.

by plaintiff; that is, the sum of $2.25. The delivery of the grain on June 18th he informed decontention now is that there was no testi- fendants' agent of the mortgage, and the agent testified that the goods were billed "on commismony to support the point that the furniture sion "at the mortgagor's request; denied that they was furnished at wholesale or dealers' rates. were sold "on commission;" and admitted that he We think the court imposed upon the plain- knew of the mortgage and its terms, shortly after tiff a heavier burden than the testimony war-with the mortgagor, and took his notes for the delivering the grain. He afterwards settled up ranted. The agreement was not in writing, balance due on the grain and the other goods. The and it was for the jury to find from all the attachment was brought on these notes, with no testimony what the agreement between the attempt to recover the property before commencing suit. Held, that plaintiff was entitled to an parties was. Under the evidence, they were instruction that if defendants' agent, after he at liberty to find that the contract was as knew of plaintiffs' mortgage, consented that the plaintiff testified on his direct examination, goods should be considered commission goods, and which corresponded entirely with the con- plaintiffs' mortgage" is valid and binding as against afterwards took the mortgagor's notes for them, tract set up in the declaration. But we think defendants." there was testimony from which the jury were justified in finding that the furniture was furnished at dealers' rates. In the presence of Mr. Hitchcock, according to the testimony of plaintiff, he requested the head salesman of Nelson, Matter & Co. to let Mr. Hitchcock have the goods at the same prices for which they would sell to him, which was the same thing as wholesale or dealers' prices; that he and Hitchcock had fixed their commissions at the other end of the road, and the salesman said he would do so, and did sell to Mr. Hitchcock $1,000 worth of furniture. This was at least prima facie evidence of the fact that the sale to Hitchcock was at dealers' rates. The presumption is that the 5. Plaintiffs having given bond for the goods and received them, evidence by the mortgagor that promise or agreement, if it may be called after the execution of the writ of replevin, he resuch, between these three parties, was car-mained in possession of them two or three months, ried out rather than that it was violated. Defendant, when sworn and examined in his own behalf, was not asked by his counsel whether the goods were furnished to him at dealers' rates, but was asked: "Have you any means of knowing whether you got those goods at wholesale or dealers' rates or retail rates?" and replied: "No, sir; I have not." What occurred at the interview at Nelson, Matter & Co.'s is disputed by the testimony introduced on behalf of defendant, but it was for the jury to determine where the truth lay in that respect. The judgment should be affirmed, with costs of both courts to plaintiff.

SHERWOOD, C. J., did not sit. The other justices concurred.

buying and selling, is inadmissible to show misappropriation; there being no claim that the mortgage was fraudulent or void.

Error to circuit court, Alpena county; FRANK EMERICK, Judge.

Replevin by Harry P. Merrill, Eugene Fifield and Herman Meisel, a partnership doing business under the firm name of Merrill, Fifield & Co., against Edward C. Recor and James E. Denton, to recover certain goods held by said Denton, as sheriff, by virtue of a writ of attachment sued out by said Recor against one John M. Blakely. Verdict and judgment for defendants, and plaintiffs bring

error.

Turnbull & Dafoe, for appellants. R. J. Kelley, for appellees.

MORSE, J. In the summer of 1886 John M. Blakely was carrying on the grocery busiMERRILL et al. v. DENTON et al. ness in the city of Alpena. On the 10th of (Supreme Court of Michigan. Feb. 1, 1889.) June in that year he was indebted to plaintiffs, Merrill, Fifield & Co., of Bay City, CHATTEL MORTGAGES-ATTACHMENT-REPLEVIN. Mich., in the sum of at least $2,579, and he 1. A mortgage executed on June 10th to secure executed on that day a chattel mortgage to a valid debt to the mortgagees, without their knowledge or any arrangement that such a mort- them for that amount. This mortgage was gage should be executed, was retained by the for the sum above mentioned, and embraced mortgagor until June 18th, when he filed it for recall the property in his business, except an ord, and telegraphed the mortgagees that he had done so, and they then accepted it without inquiring its date or amount. Held, that the mortgage took effect only from the day of its acceptance.

2. The mortgage was upon a stock in trade, and stipulated that it should cover all goods thereafter becoming a part of the stock. In replevin by the mortgagee against creditors of the mortgagor who had attached the stock, it appeared that defendants billed grain to the mortgagor on June 19th, and afterwards billed other goods to him "on com mission." The mortgagor testified that during the

iron safe, and contained a clause that the mortgage should cover also all goods and merchandise thereafter purchased for, or made a part of, or entering into, the business and stock in trade of the said Blakely, whether delivered at said place of business or elsewhere, or in process of delivery. The mortgage also embraced all book-accounts and credits,-in fact, all the property of the said

the jury returned a verdict in favor of the defendants, and found their lien to be for the sum of $384.17, for which amount they had judgment. The plaintiffs bring the case here for review on writ of error.

Blakely. This mortgage was executed with- | plaintiffs took possession, and sold out the out the knowledge of the plaintiffs. Blakely stock under their mortgage. Upon the trial kept it in his safe until the 18th of June, of this replevin suit,-the one now before us, 1886, when he put it on file at 4:40 o'clock P. M., and telegraphed the plaintiffs that he had filed a mortgage for their benefit. This was the first notice they had of its existence. They accepted it without inquiry as to its date or amount. Previous to the 18th of June, The court charged the jury that the mort1886, one Robinson, acting as the agent of gage of plaintiffs was void as against the dethe defendant Recor, contracted to sell Blake- fendants, as far as the delivery of goods bely a quantity of oats and corn. He com- tween June 10th and June 19th was conmenced delivering the same on the morning cerned; that the defendants were entitled to of the 18th, and closed the delivery on the the value of the goods sold and delivered be19th of June. He claimed that oats to the fore the 19th, unless Robinson, by his acts, amount of $344.58 were delivered on the 18th. had consented that the goods should go in He admits that, shortly after the delivery of under the mortgage. The plaintiffs claim the oats and corn, Blakely told him that he that this instruction was erroneous; that in had given the mortgage to plaintiffs, and law the mortgage was not made until the that he did not take the goods away when he 18th of June, when it was put on record, and learned this, because Blakely promised to pay the plaintiffs notified of its existence; that it for them; admits that Blakely told him that had no legal existence until it was delivered he wanted the bill of the goods made out to to plaintiffs, which was not until that day. “J. M. Blakely, Agent, Commission," and The defendants answer that when the plainthat he made it so on this request; but de- tiffs accepted this mortgage they received it nies that they were left on commission, or as of the day it was made; that the acceptthat Blakely told him the best plan would be ance related back to the 10th of June. We to leave them on commission. He sold think the plaintiffs are right in this contenBlakely, after he knew of the mortgage, $115 tion. The evidence shows that the plaintiffs worth of flour, upon which Blakely after- knew nothing of the making of this mortwards paid $65.55. The flour was also billed gage until they received the telegram that it on commission. Blakely testified that at had been filed, nor did they have any arrangenoon on the 18th of June, while the oats were ment that such a mortgage should be made being delivered, he told Robinson that he did and subsequently filed. They received the not propose to be unfair with him, and have mortgage in good faith for a debt that was him put goods in the shop, and not know how valid and subsisting at the time to the full things were; that there was a chattel mort- amount of the mortgage. This is unlike the gage on the shop to Merrill, Fifield & Co. for cases where the mortgagee takes the mort$2,500, and that if he did not want to put in gage and keeps it off the record, or where he the rest of the grain not to do it; that he knows it has been made, and agrees with the might put it in as commission goods, and mortgagor that it may not be filed until some leave it in that way, and he (Blakely) would emergency arises. In such cases there is a pay for it as fast as he sold it. Robinson fraud upon the persons who sell goods to the said he would put it in anyway, and billed it mortgagor between the making of the mortto him on commission. Blakely paid him gage and its filing, and the mortgagee is a some money from time to time until July 31, party to the fraud. In this case, under all 1886, when Robinson wanted to settle up for the authorities, the mortgage was not delivthe grain, and take Blakely's notes for the ered until the 18th of June, and it could have same. Blakely wanted the grain left, as it no force until it was delivered. The plainwas, on commission, but Robinson said he tiffs could not, by accepting it on the 18th, was going away, and wanted to close the in the absence of any fraud on their part, be matter up. Blakely said if it went into the held to receive it as of the 10th,-its date. stock it would be covered by plaintiffs' mort-In Root v. Harl, 62 Mich. 420, 29 N. W. Rep. gage, but Robinson insisted upon his signing 29, Ramsey obtained his mortgage April 13, the notes he had drawn up, and finally Blake- 1883, and he did not record it until July 16, ly did so. The defendant Recor made these notes the basis of an attachment suit, and the sheriff, Denton, under the writ, levied upon the goods of Blakely in the store in October, 1886. May 3, 1887, Recor recovered judgment in this attachment suit for the sum of $371.38. October 26, 1886, the plaintiffs replevied the goods attached, Blakely making The plaintiffs' attorneys requested the court the affidavit, being directed to do so by the to instruct the jury as follows: "If the jury plaintiffs, and the goods were delivered to find that after Robinson, defendant Recor's him by the sheriff. He claims to have re- agent, knew of the plaintiffs' mortgage, he ceived them as their agent. He remained in consented that the goods purchased of defendthe store, selling goods and carrying on busi-ant Recor by Blakely should be considered ness, until the 27th of January, 1887, when commission goods, and afterwards, on July

1883. It was held that his mortgage was void as far as debts were concerned contracted by the mortgagor between those dates. But here the mortgage was not obtained by plaintiffs until it was filed, as they had no notice of it until then. It could have no life until delivered to and accepted by them.