are captious-the suit is properly maintainable, although it has since developed that there are minor defects in material and workmanship, the existence of which does not indicate any purpose to defraud, which might have been overlooked, and which might have been remedied, if attention had been directed to them. As to the roofs, the complaint made by the defendant was:

"The roof boards are too far apart, and are besides too shaky, split, and rotten. The shingles are not the quality specified by our contract, the butts having knots and worm holes, and, such as they are, they are not properly laid. * * * I must insist upon your replacing the three roofs at once with proper roofs such as were contracted for by me.'

A review of the conflicting testimony introduced leads to the conclusion and finding that the shingles were of the quality specified, the roof boards were of proper material, and properly put on. I have had most trouble over the question whether they were properly laid. The contract calls for cheap material. It does not permit poor workmanship. Giving effect to that testimony which appears to be best entitled to be believed, I find that the shingles were, substantially, as well laid as such shingles can be laid. It appears, also, that defendant was present from time to time, inspecting the work as it progressed, and that at his request the workmen were permitted to select, to some extent at least, the shingles which were put upon the houses, using the worst of them to cover the outhouses. Complainants were warranted in refusing to replace the roofs.

There were no written agreements for extra work. Counsel for complainants invoke the rule that, where parties to a contract containing such a clause as appears here deal with each other, the provision is waived when the owner himself requests that the work be done or the materials furnished. Ford's Case, 17 Ct. Cl. 60; Barlow v. U. S., 35 Ct. Cl. 514; 30 Am. & Eng. Enc. Law (2d Ed.), p. 1283. The testimony of some experts who

inspected the plans and specifications and the buildings was that all items claimed as extras were extras. Counsel for defendant content themselves by saying that the trial judge disposed of the matter properly, and that there is no occasion to say anything upon the subject. The circuit judge was of opinion that, inasmuch as complainant testified that defendant demanded the extras charged for as matter of right, telling complainant that he could supply them or abandon the work, and complainant thereafter supplied what was demanded, there was no room for the idea that a parol contract had been entered into for such extras. The reply made is that, as these things were in fact extras, the demand upon condition being a variation, and, if insisted upon, a breach of the contract, the law will not put the contractor in the difficult position of treating the whole contract as at an end and suing for his damages. I am satisfied that the contract did not require these items to be furnished-that they were in fact extras-and agree with counsel for complainants that the cost of them would be a proper measure of damages for breach of the contract in a case where a contractor was not allowed to perform according to the terms of the contract. This is not such a case. Complainants are asserting a lien as upon performance of a written contract according to its terms. The court was right in refusing a decree for these items. Moore v. Locomotive Works, 14 Mich. 266.

Counsel for complainants say that the court was in error in making certain ailowances to defendant on account of defects which he found to exist, without evidence of the expense of remedying such defects, and the inference, from the argument made, is that defendant was bound to supply such proof. But as to some of these alleged defects there was no dispute. It is admitted that the foundation walls were not made of material consisting of four parts gravel and one part cement, as the contract specified. The proportions were six parts to one. This was discovered by defendant during the hearing in the court below.

The evidence strongly supports the idea that the proportions used were proper, and were as usually specified in such cases and that the specification was made by inadvertence. So, too, bolt holes through the foundation walls were not closed from the outside, as they should have been. The court allowed defendant $45 for the three houses on account of defects in foundations. The facts were particularly within the knowledge of complainants. There was some evidence, not very clear or specific, to sustain the allowance made on account of defective foundation walls, and, under the circumstances, the finding will not be disturbed. An allowance was made, too, of $30 as a proper expense of repairing the roofs of the houses. For this I find no warrant. Counsel for complainants concede that an allowance of $6 should be made for two doors.

The decree will be modified, by adding to the same $24 as of February 19, 1906, and, as modified, affirmed. Neither party will recover costs of this appeal, but the cost of printing the record will be equally divided between them.

BLAIR, MONTGOMERY, HOOKER, and MOORE, JJ., concurred.

BOOTH v. DINGLEY.

CONTRACT OF SALE

ENFORCEMENT

SPECIFIC PERFORMANCE AGAINST THIRD PERSON. Where the owner of the capital stock of a corporation agreed to sell it to her son on terms including the reorganization of the corporation by complainant and the son under a scheme that should leave the management and a controlling interest in the corporation in the son, a contract between the son and complainant, by which he agreed to sell 61 per cent. of the stock to complainant and reorganize the corporation on a basis involving the ownership of 61 per cent. of its stock by complainant, cannot be specifically enforced against the owner of the stock.

Appeal from Kalamazoo; Adams, J. Submitted January 25, 1907. (Docket No. 105.) Decided April 30, 1907.

Bill by Ralph H. Booth against Edward N. Dingley and others for the specific performance of a contract. From a decree dismissing the bill, complainant appeals. Affirmed.

William J. Gray (Dallas Boudeman, of counsel), for complainant.

Osborn & Mills, for defendants.

MOORE, J. Complainant seeks the specific performance of the terms of a paper, the material parts of which are as follows:

"Memorandum of Agreement.

"For and in consideration of the payment of the sum of $35,000.00 to be paid to me by R. H. Booth, I hereby agree to sell, transfer and set over 61 per cent. of the stock of the Kalamazoo Telegraph Co., owner of the Kalamazoo Evening Telegraph and Semi-Weekly Telegraph, with all of its plant, including two Potter presses and motors and stereotyping outfit, four linotype machines and complete

composing room plant, all office furniture and fixtures and all supplies on hand and in transit and franchises and all property understood to constitute the assets of the said the Kalamazoo Telegraph Company, including also the subscription list, advertising contracts, books of accounts and all that goes to make up the good will of the said newspapers.

* * *

"It is understood that I am the owner of, or have power to deliver all the above described property and stock aforesaid.

"I hereby acknowledge receipt of $500 to me in hand paid (receipt given herewith) which shall be forfeited to me in event of the balance of the amount $34,500 not being paid to me by March 5, 1906.

"It is understood that the Kalamazoo Telegraph Company expects to remain in its present building and that for the first year the rental shall not exceed $1,200 for space occupied by it. Also that it is the sense of our understanding that if it can be arranged satisfactorily as to details of salary, duties, etc., that I shall be the managing editor for one year from date.

"It is understood that the statement of receipts and expenses for the year 1905 given herewith is substantially true and correct.

"It is further understood that the salary of the president shall at no time exceed 3 per cent of the annual gross receipts, and that all other salaries shall be solely for service rendered in accord with business practice. It is expected that you will reorganize the company with capital increased to one hundred thousand dollars of which you, Ralph H. Booth, shall have 61 per cent. or $61,000, and I to have 39 per cent., or $39,000. Following this agreement there shall be prepared a bill of sale covering all details of above intentions.

[Signed]

"EDWARD N. DINGLEY.

"Dated February 27, 1906.
"Accepted: RALPH H. BOOTH."

In his answer, Edward N. Dingley made claim that the contract did not correctly express the agreement, and prayed for its reformation; that complainant knew he (Dingley) was not the owner of the stock, and that his power to deliver the same depended upon an agreement acceptable to the owners of the stock, and that they never