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that the bond was all right. This is denied by Mr. Osmun, but on the cross-examination he said in part:

"I said (to Mr. Rice) that his bond might be good, but it hadn't been passed by the commission yet. His bondsmen might be good. He asked me something about the bondsmen, and I said that I considered them good. That is true, they are good. I don't know as I knew that at the time his bond was in the hands of the city clerk. I think I heard it some way. I couldn't say whether that was before he started to build the walks or not."

Mr. Rice says he had no knowledge his bond was not satisfactory to the commissioners until the walks were all completed, and we do not discover anything in the record in conflict with this testimony. Mr. Osmun frequently saw the walk while it was under construction. The testimony in relation to the character of the walk was very conflicting. That offered on the part of the plaintiff tended to show that it was well built. The testimony on the part of the city was to the contrary. Testimony on the part of the plaintiff and Mr. Osmun's testimony shows that before this walk was built Mr. Rice had built crosswalks and sidewalks which had been directed to be built by the city. The testimony also discloses that the blanks upon which were written the assignments from the property holders to the plaintiff were furnished by the city, and that it had furnished such blanks for several years, and had paid the rebates to the contractors where so assigned.

Those parts of the charge necessary to be quoted to show what was submitted to the jury, are as follows:

"The city has prescribed as near as practicable the amount of cement that shall be used in a load of gravel or the proportion and the cement that shall be mixed with the sand-that is, the proportion-because experience has shown to the officials that taking it one time with another that makes the most durable and best walk, and the prices the property owners promise to pay, and the city promises to rebate for is for work substantially built in compliance with these specifications.

"It may seem a little harsh, but it is here, and the court can do no better than to call your attention to it. As a sort of penalty to compel sidewalk builders to comply with this ordinance and these specifications, it is enacted that failure to comply with these specifications shall be held to be a complete defense. The meaning of that is that the property owners may settle with the sidewalk builder if they wish to, but the city shall not pay any rebate where a sidewalk was not substantially built and complied with the specifications, and it shall be a complete defense; that is, the city shall not be liable at all for any rebate, unless there is a compliance.

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"With regard to the assignments from the owners, I say to you technically there is no doubt but the city attorney is correct-that is, the commission has seen fit to insist that the rebate should go directly to the property owner, that they should enforce such a provision-but it appears in evidence that for years, as a matter of convenience, property owners, when a strip of walk has been constructed, have assigned their claims to the contractor, and he has collected the rebate all in one bunch, so I allow the case to go to the jury as far as these assignments are concerned, you will need pay no attention to them. Mr. Rice is the legal holder of them under the practice that has obtained in the city.

"It is the claim of the plaintiff that he presented his bond in good faith, that the commissioner of streets told him his bond was all right, and that he proceeded with the work without any knowledge that his bond had not been officially accepted. It is his further contention that the commissioner of public streets saw the plaintiff building the walks in question, and was there almost daily. Plaintiff further contends that the walk was built as a matter of fact in a substantial and workmanlike manner. Now, if you find from the evidence that the plaintiff in good faith performed this contract on which recovery in this suit is sought substantially, and I emphasize the word, 'substantially,' in all material particulars according to its terms, without wilful departure therefrom, or omission in the essential points, and that such performance is sufficient to entitle the plaintiff to recover in this suitthat is, provided he was told by the commission that his bond was all right.

"I charge you, further, that if you find that the city permitted the walks in question to be built, under an ordi

nance allowing the property owners a rebate or a certain per cent., and if you find that the property owners assigned their claims to the rebate to the plaintiff, then the plaintiff would be entitled to whatever rebate the property owners would get under the ordinance. If you find that the plaintiff presented a bond, and left it with the city clerk, and if you further find that the plaintiff was told by the commissioner of public streets that his bond was all right, and, if you further find that, after leaving the bond with the city clerk, the plaintiff went ahead and built the walks in question with the knowledge and consent of the commissioner of public streets, then I charge you in that case that the city cannot now defeat this action on the ground that the bond was not officially accepted.

"The question, therefore for you to determine, in addition to the question of the bond, is this: Has there been a substantial compliance with the provisions of the ordinance in the construction of the walk? In other words, Is it a good and substantial walk, built in a good workmanlike manner of ordinarily good material, and as good as the best that is laid on Saginaw street in the city of Pontiac? And, if you find from the evidence that this walk is a good substantial walk, and that it does conform with the requirements of the ordinance, your verdict should be for the plaintiff for the amount claimed, if you also find as a fact that Commissioner Osmun told the plaintiff his bond was all right.

"Upon the part of the defense I charge you as follows: That there can be no recovery in this case simply because Mr. Rice left a bond with the city clerk. It appears the bond was later rejected by the commissioners and returned to him. I charge you, further, that if the jury find from the evidence in the case that the sidewalks charged for by the plaintiff in this case were not built and laid so as to be as good as the best cement sidewalks that are laid on Saginaw street in the city of Pontiac, and said walks and the material therein are defective and are not built in a substantial manner, then your verdict must be in favor of the defendant of no cause of action.

"In this case the burden of proof is upon the plaintiff, John W. Rice, to show by a fair preponderance of the evidence in the case that the sidewalks charged for were built and laid so as to be as good as the best cement sidewalks on Saginaw street, and that said sidewalk and the materials therein were not defective and were built in a

substantial and workmanlike manner, and if the plaintiff Rice has failed so to do, or if the evidence upon these questions is evenly balanced, then your verdict should be in favor of the city of no cause of action."

Upon the record as made, we do not think the city has any just complaint to the way in which the case was submitted to the jury.

Did the court err in refusing a new trial because the verdict was against the weight of the evidence? As before stated, the testimony was in sharp conflict. Its weight would depend much upon the appearance of the witnesses, their opportunities for knowledge, and their interest. The jury and the trial judge had the great advantage of seeing and hearing the witnesses.

We are not disposed to say it was reversible error, in view of the record, to refuse a new trial.

Judgment is affirmed.

STEERE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

In re AUSTIN'S ESTATE.

AUSTIN v. AUSTIN.

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1. DIVORCE- ALIMONY — JURISDICTION — DEOREE, VALIDITY OF NECESSITY OF PRAYER FOR ALIMONY OR UNDERWRITING. A decree of divorce awarding an allowance to the wife for the support of minor children is valid in collateral proceedings, although no prayer for such an allowance was included in the bill of complaint for divorce, and the underwriting on the subpoena was not signed by her solicitor.

2. SAME-MINORS-CUSTODY OF CHILDREN.

In entering a decree for divorce the court is empowered by statute to make a just and proper order respecting the care,

custody, and maintenance of the minor children, whether or not the pleadings contain averments relative thereto. 3 Comp. Laws, § 8631, 4 How. Stat. (2d Ed.) § 11468.

8. SAME-INFANTS.

In divorce cases, whether minor children are mentioned in the pleadings or not, or whether or not there may be any underwriting on the subpoena, or whether the parties agree or attempt to agree as to the custody of minor children, they have become by statutory authority the special wards of the court, and it becomes the duty of the court to safeguard their interests.

4. SAME SERVICE OF PROCESS-PARTIES-ATTORNEY AND CLIENT. Where the defendant in a divorce case appeared by his solicitor, objections to irregularities in the service of process were waived.

5. SAME-AUTHORITY OF SOLICITOR.

An attorney who has entered an appearance is prima facia presumed to have had authority so to do.

6. SAME-AFFIDAVIT OF IRREGULARITY-ORDER PRO CONFESSOIRREGULARITIES.

Failure to file an affidavit of regularity in the case or to file an order pro confesso were irregularities that did not invalidate the decree on collateral attack.

7. SAME-ENROLLMENT.

By the provisions of 1 Comp. Laws, § 557, 5 How. Stat. (2d Ed.) § 12611, authority is conferred on the court to order the recording and enrollment of the decree nunc pro tunc.

Error to Calhoun; North, J. Submitted October 10, 1912. (Docket No. 2.) Decided November 8, 1912.

Claim by Alice M. Austin against the estate of Frank Austin, deceased, for moneys expended in maintaining the minor children of decedent. It was allowed by the commissioners on claims. Lola M. Austin, executrix of the estate of decedent appealed to the circuit court where the judgment was affirmed. Defendant brings error. Affirmed.

J. M. Hatch & Sons, for appellant.

J. L. Hooper (Stewart & Jacobs, of counsel), for appellee.

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