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ALEXANDER GORDON v. MARGARET S. SIBLEY.

Certiorari-Circuit court may order further return on its own molion— Affidavit of amount due on open account, how made evidence—Return must show service of copy of affidavit, with process

-Objections, when must be made.

1. The circuit court has power, on its own motion and against the protests of plaintiff in error, to order a further return by the justice to a writ of certiorari, where it deems the original return insufficient upon any error alleged.

2. The affidavit authorized by sec. 7525, How. Stat., like any other testimony, must be introduced in evidence to become operative, the statute making no provision for its being filed with the justice.

3. Until thus introduced, a defendant is not called upon to object to its sufficiency or regularity, or to the return of service, but if he has appeared and is present when the affidavit is introduced, and is silent, he waives all such objections.

4. A return which fails to show service of a copy of said affidavit, with the process by which the suit was commenced, if objected to, is insufficient to authorize the introduction of the original affidavit in evidence. To be effectual as prima facie evidence the statute must be complied with, and the record must show such compliance, or competent proof must be made thereof.

Error to Muskegon. (Russell, J.) Argued January 6, 1886. Decided January 20, 1886.

Assumpsit. Plaintiff brings error.

are stated in the opinion.

Affirmed. The facts

Kelley & Parker, for plaintiff in error.

Delano & Bunker, for defendant in error.

CHAMPLIN, J. Plaintiff commenced suit, by summons, before a justice of the peace, against defendant. The summons was personally served on the defendant on the thirteenth day of September, 1884. On the same day the same officers served upon the defendant an affidavit and copy of

account, by giving to her personally a true copy thereof. His return indorsed upon the affidavit is as follows:

I

"State of Michigan, County of Muskegon—ss.: hereby certify that I have personally served the within affidavit, and copy of account attached thereto, on Margaret S. Sibley, within named, by giving her a true copy thereof, on this thirteenth day of September, 1884. in said county ROBERT E. OBERT, Deputy Sheriff."

The affidavit and account were filed with the justice on the seventeenth of September, which was the return-day of the summons. The parties appeared before the justice, and the plaintiff declared orally in assumpsit for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, at the defendant's request, during the year 1883, and claimed damages, $100. The defendant pleaded the general issue, and the cause was adjourned from time to time, and finally the case was by the parties submitted to the justice for decision, without the introduction of any evidence; the attorney for plaintiff simply calling the attention of the justice to How. St. § 7525. The justice thereupon rendered judgment for the defendant. The plaintiff's counsel carried the case to the circuit court by writ of certiorari, alleging that the justice erroneously rejected the affidavit, and copy of account annexed thereto, and offered by the plaintiff, and filed with the justice, and in rendering judg ment against the plaintiff, because there was no evidence of any kind contradicting the prima facie case made by the plaintiff by the affidavit and copy of account annexed thereto. When the case reached the circuit court, the circuit judge, of his own motion, and against the plaintiff's protest, ordered the justice to make a further return to the following questions: "First. Was the account constituting the plaintiff's demand, and the affidavit attached thereto, introduced in and received in evidence by the said plaintiff? Second. Was said account and affidavit considered in evidence by the respective attorneys upon the argument of said cause before you, said justice?" The justice made a further return, answering both questions in the negative.

The circuit court thereupon court thereupon affirmed the judgment. Plaintiff brings error, and alleges-first, that the court erred in not deciding the cause upon the first return of the justice, and in ordering a further return.

There was no error in this. The court issued the writ requiring the justice to make return of the proceedings had before him, and, if his return was deemed to be insufficient upon any error alleged, it had the power to direct a further return. The first return merely stated the fact "that the attorneys of plaintiff called the attention of this court to How. Stat. § 7525." It did not affirmatively show that the affidavit and account were offered in evidence, and consequently the plaintiff could not have recovered upon the face of that return. The statute referred to enacts:

"That in all actions brought in any of the courts of this State to recover the amount due on an open account, or upon an account stated, if the plaintiff, or some one in his behalf, shall make an affidavit of the amount due, as near as he can estimate the same, over and above all legal set-off, and annex thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the declaration filed in the cause, or with the process by which the action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant, with his plea, shall, by himself or agent, make an affidavit denying the same.'

The statute makes no provision for filing the affidavit with the justice. It merely makes such affidavit prima facie evidence; but, like other evidence, it must be introduced in evidence. Until this is done, the defendant is not obliged to make any objections thereto, and waives nothing by his silence. Had it been offered in evidence, and no objection made, the sufficiency and regularity of the affidavit would have been waived: Locke v. Farley, 41 Mich. 405; as well as all objections to the return of service, in all cases where the defendant has appeared, and is present in court when such affidavit is introduced. Had the affidavit in this case been offered in evidence, the defendant might have objected that the return did not show that it was served with the

process. There is no presumption that, because it was served the same day, it was served at the same time. To be effectual as prima facie evidence, the statute must be complied with, and the record must show the fact, or competent proof made thereof. The return in this case did not show that the affidavit was served with the process, and hence the affidavit was not prima facie evidence of the fact stated therein.

The ruling of the circuit judge was correct, and the judgment must be affirmed, with costs.

The other Justices concurred.

JOEL W. HAMILTON V. GEORGE E. FROTHINGHAM.

Agency-Fixed compensation excludes opinions of witnesses as to proper commission-Declaration-Statute of frauds-Revocation of agency.

1. Where the fact of an alleged agency is in dispute and the testimony on both sides shows that if such relation existed, the agent's compensation was a fixed sum, and the agency limited to the sale of specified property, the opinions of witnesses as to what commission and compensation would be proper, in such a case, to allow a land broker, are irrelevant, and as such testimony showed that the price the agent claims he was to receive was very much in excess of any usual commission, such price must be based on an express contract for the breach of which damages could not be recovered under the common counts.

2. An agreement to pay compensation to an agent for the sale of personal property, graduated by the price obtained from a third person, on such sale, is not an agreement for the sale of chattels and need not be in writing.

8. Such an employment could be revoked and the revocation could not be complained of, unless colorable and unfair, and unless the new bargain made by the principal came within the same substantial terms which would have entitled the agent to compensation under the old agreement. Even then the remedy would not be on a quantum meruit for services, whatever it might be as to expenditures made in the service.

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Error to Washtenaw. (Jennison, J.) Argued January 6, 1886. Decided January 20, 1886.

Assumpsit.

Defendant brings error. Reversed. The facts are stated in the opinion.

Noah W. Cheever and Charles R. Whitman, for appellant:

The contract should be specially set out in the declaration: Kalamazoo N. M. Works v. Macalister, 40 Mich. 89; Butterfield v. Seligman, 17 Mich. 95.

The contract was for the sale by the defendant to the plaintiff of goods, wares or merchandise for the price of more than fifty dollars, was within the statute of frauds and nothing was done to take it out from under said statute. It is therefore void and cannot be used as the foundation of any legal or equitable right. [Citing numerous authorities which are omitted because the court held that the alleged contract did not fall within the statute.-REPORTER.]

As to termination of plaintiff's agency, see Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Wylie v. Marine National Bank, 61 N. Y. 415; White v. Twitchings, 26 Hun (N. Y.) 503; Chandler v. Sutton, 5 Daily (N. Y.) 112; Ward v. Fletcher, 124 Mass. 224; Uphoff v. Ulrich, 2 Ill. App. 399; Wharton on Agency, § 330.

John F. Lawrence and E. D. Kinne, for plaintiff :

The jury having found the existence of the special contract fixing plaintiff's compensation, the testimony as to the reasonable value of plaintiff's services had no bearing in the case and could not possibly injure the defendant.

It is elementary law that when a contract has been executed and nothing remains to be done but the payment of the money by the defendant, the plaintiff may declare generally, using the common counts: 2 Greenl. on Ev., § 104; Pippin v. Morehouse, 50 Mich. 539, and cases cited.

CAMPBELL, C. J. Plaintiff sued defendant for services in a sale of a printing establishment at Ann Arbor. The claim which was presented was that defendant agreed to give plaintiff all that he should receive beyond $8,000, and that the property was sold for the sum of $9,000. The facts show that on the final arrangement a sale was inade for a consideration which included some lands in Minnesota, which