9; Caruthers v. Humphrey 12 Mich. 270; Van Husan v. Kanouse 13 Mich. 303; Flanders v. Chamberlain 24 Mich. 305; Eslow v. Mitchell 26 Mich. 500; Green v. Langdon 28 Mich. 221; Dodge v. Brewer 31 Mich. 227; Sager v. Tupper 35 Mich. 134.

S. W. Fowler for defendant.

COOLEY, J. On the third day of January, 1877, Henry J. Hannaford executed and delivered to William Stephens a note for the sum of eighty-one dollars and sixty cents, payable in two years from date with ten per cent. annual interest. He also gave a real estate mortgage to secure the payment. On October 15, 1877, Hannaford conveyed the mortgaged premises by warranty deed to Louder, the complainant in this suit. Stephens assigned the note and mortgage to one Ruggles, Ruggles to Wise, and Wise to Burch, the defendant in this suit. All these assignments were within a year after the note and mortgage were given, and Louder was not aware of them.

January 12, 1878, defendant, without calling upon either Hannaford or complainant for payment, commenced foreclosure by advertisement for the instalment of interest, eight dollars and sixteen cents, which had just fallen due. By the terms of the mortgage it was provided that as often as any proceedings should be taken to foreclose the mortgage the mortgagee might tax the sum of fifty dollars as a solicitor or attorney's fee; and the notice of sale claimed this fee. Complainant denied that by the terms of the note and mortgage the interest was legally demandable annually; and on March 14, 1878, complainant made a tender of ten dollars for interest, and this not being accepted, filed his bill to enjoin a sale. A preliminary injunction was issued, but it was afterwards dissolved and on June 1, 1878, a sale was made for the sum of $105. The sum was made up of the eight dollars and sixteen cents interest, fifty dollars attorney's fee and the costs of advertisement and sale; and it is seen that the costs were nearly twelve times the debt they were made to collect.

The suit in chancery proceeded, but before it reached a decree, defendant, as soon as the principal of his debt fell due, commenced another proceeding to foreclose. Complainant offered to pay the amount of the debt, but defendant refused to receive it in satisfaction unless the costs were paid also. He did however offer to deduct half the attorney's fee, and afterwards to throw off the whole; but complainant refused to pay any costs. January 20, 1878, complainant filed a supplemental bill, setting up the second proceeding to foreclose, and praying relief against it. The circuit judge when this bill was brought to a hearing, found that the sum which the complainant offered to pay was the full sum due upon the mortgage, and decreed that on its being paid over to defendant the mortgage should be discharged. He also decreed that the foreclosure sale above mentioned, and a second sale which in the meantime had taken place, be held null and void. An appeal is taken from this decree.

There is no doubt there was interest due on the mortgage when the first foreclosure was begun, but the proceeding that was instituted for its collection without calling for payment was exceedingly oppressive and entitled to no favor. The claim of fifty dollars as an attorney's fee was wholly unwarranted, as we have decided in many cases. Bullock v. Taylor 39 Mich. 137; Van Marter v. McMillan 39 Mich. 304; Myer v. Hart 40 Mich. 517; Vosburgh v. Lay 45 Mich. 455. When therefore the sale was made for $105, it was for considerably more than was due, and defendant, who became the purchaser, could only complete the sale by paying over to the officer who made the sale, the surplus of more than fifty dollars, for the use of complainant. This payment was never made, and the sale was therefore left incomplete and ineffectual, and we have no occasion to consider any of the other questions which the parties have raised respecting it.

When the second foreclosure was begun the suit in equity was pending. Defendant was insisting on the first foreclosare and complainant was disputing it. If it was valid com

plainant was entitled to surplus moneys arising upon it, and the dispute between the parties was such as could only be adequately dealt with in equity. There is no doubt that the court of equity could take complete jurisdiction upon the bill then pending, and do full justice between the parties. Under such circumstances, if defendant elected to institute new proceedings in foreclosure, when to say the least they were entirely unnecessary, he would necessarily do so subject to the final action of the court in the pending suit. And even in the absence of any legal tender we think the court would have been justified in setting aside the unnecessary proceedings at the cost of the party taking them.

The decree must be affirmed with costs.

The other Justices concurred.

SCHOOL DISTRICT NO. ONE OF MANISTEE TOWNSHIP V. MARTHA COOK.

Remission of excess in judgment—Action on school-teaching contract-Proof of teacher's qualifications-Competency of school-district officers to contract with teachers.

Where one who has recovered judgment in justice's court for more than $100 remits the excess to save a reversal and the case is nevertheless appealed, it cannot thereafter be claimed that plaintiff had released so much of the demand in suit as had been remitted.

In a suit by a school-teacher on a contract of hire, the plaintiff is not bound to make profert of her certificate of qualification and it is not error to allow her to give parol proof that she has one.

In an action by a school-teacher on a contract of hire it was alleged as error that the contract was allowed in evidence without proof that those who acted for the school-district in making it were not authorized, and that the court charged that it was valid. Held, that this allegation did not sufficiently present the objection that the officers of the district were not competent to bind it by a contract extending beyond the current year especially as there was evidence that the

officers were in possession and presumptively competent and there was no evidence that they were not authorized to employ teachers. An assignment of error must be supported by an exception.

Error to Manistee. Submitted Oct. 13. Decided Oct. 19.

ASSUMPSIT. Defendant brings error. Affirmed.

Ramsdell & Benedict for plaintiff in error.

S. W. Fowler for defendant in error.

GRAVES, J. Mrs. Cook claimed that she made a contract with the district in April, 1878, to serve it as teacher for nine months from the 9th of September following, and that she entered upon the service under the contract and continued for three months and was then dismissed without any legal or justifiable cause, and she brought this action to recover her damages caused by the breach of the contract and was allowed to recover, and the district has brought the case here on writ of error and bill of exceptions.

Prior to this

The written contract was shown on the trial and it was proved and not denied that Mrs. Cook went on under it and taught for three months for which the district paid her the stipulated wages, and then dismissed her and refused to pay anything for the residue of the agreed term. No evidence was offered to explain or excuse the dismissal. action she sued before a justice and recovered more than $100 and the district removed the case to the circuit court. For the purpose of removing objection to the proceedings she formally remitted so much of the recovery as exceeded $100; but with this the district was not content and it demanded and obtained a reversal on jurisdictional grounds. On the trial of this case the district offered these proceedings before the justice to prove that Mrs. Cook released all claim exceeding $100, and the court excluded the offer. This ruling is charged as error.

The point has not a shadow of merit. The remission was a proceeding in the first case and only intended to cure an

47 MICH.-8

error and prevent a reversal. But the district refused to accept it and demanded and obtained a reversal, and the whole proceedings were thereby rendered naught. The district cannot now claim that a portion still remains of which it can take advantage.

Mrs. Cook testified that at the time she made the contract she held a certificate of qualification, but had left it at her home and was consequently unable to produce it. The district now charges as error that she was allowed to swear to the legal import of the certificate. The allegation is not fairly warranted by the record. The only exception which relates to the subject is that it was not proper to give parol proof of her possession of the certificate unless it was accompanied by production of the instrument itself. No mention was made of the point specified as error. The exception itself was not tenable. Besides it was no necessary part of her case to make profert of the certificate.

The remaining allegation of error is that the contract was allowed in evidence without proof that those who acted for the district were authorized; and further that the court erred in charging that the contract was valid, and on this statement of error it is now argued for the district that it was not competent for the officers of April, 1878, to bind the district by a hiring extending beyond the school year then running. This view was not suggested at all to the court below and it is one which was not likely to occur to the circuit judge or Mrs. Cook's counsel unless intimated, and there is no evidence that it did occur to them.

We have seen that the district actually accepted from Mrs. Cook some three months' service under this contract in the new school year and paid her the wages stipulated therefor, and it was not to be readily supposed that the contract was intended to be repudiated. But it is sufficient now that the part of the charge referred to was not excepted to. It received the apparent acquiescence of the district and the charge of error has therefore no foundation in the record. The evidence was full that those who signed for the district were in possession of the offices and presumptively compe