*

*

He traded horses once in a while. Peter had two horses. When he used three horses, he used the old gentleman's horse. They used him some on the cultivator and on the binder for the third horse, when they used a third horse.

* The old gentleman fed his horse out of his own share of the feed. After the old man sold the cow, he never had a cow after that. Peter had generally four cows, which he pastured on the place. Peter had all the milk and butter, except such as the old man needed for his own use. He pastured his cows there during the time he lived there, and some young stock."

There is no other evidence of any statements or claims made by Peter, or statements by the father to Peter or in his presence. The other testimony relates mostly to friendly relations of the parties and statements made to neighbors by the father, expressing satisfaction with his treatment, and declarations of intention to compensate Peter and his family for their kindness to him by giving them a gratuitous preference on his decease.

The

We find no proof in the case of any direct promise made by the father to pay for "care and attendance," or of any statement by him to others that he had made an agreement of that nature. In various conversations with his neighbors, in which he was expressing satisfaction with the manner Peter and his family had treated him, he used expressions from which it is claimed a bargain can be inferred. strongest of such expressions are: "He had lived comfortably with Peter and was going to make it right with Peter;" "that he would make it good for Peter;" that "Peter and his family had taken care of him and he wanted to compensate them for it ;" and in a conversation with a witness named Lenters, while expressing satisfaction over Peter returning to live with him, he said, "Of course, he gets the 40 acres, the homestead, for my keep." His intention in that particular appears to have been carried out in his last will. The will is not set out in the record; but from the testimony of the man who drew it, who seems to have referred to the will when he was testifying,

Geert left the homestead to Peter and his wife for life, with remainder to their children. This witness testifies that he drew four different wills for the old gentleman, in some of which he left the homestead to Peter, and in some of which he did not. He had numerous lengthy conversations with Geert on the subject, and testifies to various statements by him to the effect that he desired to provide compensation for Peter and his family in return for their kindness to him. He also testifies in that connection:

"He said he never made a particular bargain, only that he wanted Peter and Peter's family to have a certain amount of his property; that he would make it good with him if he took care of him.

Peter died before his father, and Peter's family got the 40-acre homestead.

There is not a word in the record showing that Peter or his family at any time claimed or expected to be compensated for extra services rendered. There is little to indicate that he was given or required any special care and attention beyond that reasonably implied in case of an ordinary boarder. Geert was living in his own house, in rooms furnished by himself. He is not shown to have been sickly or helpless or in need of extra care. It is testified that even during the last few years of his life he was not sickly, though he was troubled with rheumatism by spells, and old age was coming on. There is no testimony as to the duration or nature of his last illness, and there is an absence of any testimony from which the value of the alleged services might be ascertained.

The presumption is that services of the nature claimed, rendered in the family to a relative, are gratuitous. There is not enough in this record to overcome the presumption of relationship. There is uncontroverted proof of an express contract for board. To establish this claim of an implied contract for extra care and attendance, the service must be proven, and there must be testimony tending to show an agreement, assented to by both parties, binding in law and requiring compensation. The import

of the testimony relied on is gratuitous expressions of intention to compensate Peter and his family for this kindness during the years the father lived with them. This case is within the rules announced in Decker v. Kanous' Estate, 129 Mich. 146 (88 N. W. 398); Luizzi v. Brady's Estate, 140 Mich. 70 (103 N. W. 574); In re Colburn's Estate, 153 Mich. 206 (116 N. W. 986, 126 Am. St. Rep. 479), and cases there cited.

The judgment is affirmed.

MOORE, C. J., and MCALVAY, BROOKE, BLAIR, STONE, and OSTRANDER, JJ., concurred. BIRD, J., did not sit.

TRUMAN v. J. I. CASE THRESHING MACHINE CO.

1. DAMAGES-PROFITS-SPECULATIVE RECEIPTS.

Anticipated profits of an itinerant thresherman were not recoverable from a mortgagee who wrongfully took possession of the threshing machine, upon evidence offered by plaintiff which was indefinite and showed that the profits were uncertain, dependent on the weather, and on matters beyond plaintiff's control.

3. SAME-PRINCIPAL AND AGENT-PAROL EVIDENCE RULE. Testimony that defendant's agent told plaintiff at the time the machine was purchased that he could make $700 or more profit before the first payment became due, was inadmissible to add to the terms of the written contract which contained no such warranty.

3. SAME-FRAUD.

The agent's statement amounted to no more than "puffing" used generally by salesmen.

4. CHATTEL MORTGAGES-POSSESSION BY MORTGAGOR-INSECUR· ITY CLAUSE-GOOD FAITH.

Instructions to the jury that defendant must satisfy them by a fair preponderance of the evidence that it believed and had good reason to believe that its security was in danger of being impaired, that there was ground for such belief and defendant acted in good faith in seizing the threshing machine, were prejudicial error, being in conflict with a prior statement of the correct rule that if defendant acted in good faith plaintiff could not recover, though the reasons on which it acted were insufficient.

Error to Hillsdale; Chester, J. Submitted January 26, 1912. (Docket No. 37.) Decided March 12, 1912.

Trover by Orrin B. Truman against the J. I. Case Threshing Machine Company for the conversion of a threshing machine. Judgment for plaintiff. Defendant brings error. Reversed.

Lockerby & Bowen, for appellant.

Miles T. Davis and Fellows & Chandler, for appellee.

Plaintiff sues in an action of trover for the value of a threshing machine taken by defendant under the so-called insecurity clause of a chattel mortgage. He also seeks to recover special damages caused by said taking. The machine was sold in 1908 for $2,200, the defendant taking four promissory notes for the amount, the first of which fell due in September, 1909, and one each year thereafter. To secure the payment of these notes plaintiff gave to defendant a chattel mortgage upon the machine. This mortgage contained the usual recital that:

"If said party of the second part shall at any time deem itself insecure, then, thereon, and thereafter it shall be lawful, and the said first party authorizes the second party, its successors and assigns, or its authorized agent, to treat the debt hereby secured as fully due and payable, and to take said property wherever the same may be found, and hold or sell and dispose of the same and all equity of redemp

tion, at public auction or private sale, with or without notice, and on such terms as said party of the second part or its agents may see fit," etc.

During the summer of 1909, defendant claimed to have learned facts which led it to believe that plaintiff was engaged in litigation and that he intended to run the machine until the first note came due in September and then abandon it to defendant.

Acting on this information defendant seized the machine on August 24, 1909, and, after giving notice to plaintiff, sold it at public sale for the sum of $1,437, defendant itself becoming the purchaser at such sale.

Plaintiff brought this action the day after the seizure, and to the usual declaration in trover added a special count for damages growing out of loss of profits upon some 60 threshing contracts which he claimed to have had at the time of the seizure.

Defendant filed a plea of the general issue with notice that defendant was justified in the taking by virtue of the clause in the mortgage above quoted, and the acts of the plaintiff whereby the power of seizure under said clause became operative. Plaintiff had verdict for $228.28, that being the amount of his claim allowed by the jury in excess of the mortgage debt. Defendant has brought the case to this court for review.

BROOKE, J. (after stating the facts). While there are some 30 assignments of error, we will examine those only which properly arrange themselves under the following heads:

(1) That the court erred in admitting testimony, on behalf of plaintiff, relative to the profits which plaintiff might have made during the threshing season of 1909 had the machine not been taken from him. The objection to this line of testimony was that such prospective profits were uncertain, indefinite, speculative, and conjectural. (2) That the court erred in admitting testimony relative to representations said to have been made by defendant's agent to plaintiff as to what he could earn with the