Error to Wayne; Hosmer, J. Submitted April 22, 1896. Decided May 19, 1896.

Assumpsit by Gustavus Stockman against Carl H. Michell for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error. Reversed.

Sloman, Groesbeck & Robinson, for appellant.

Atkinson & Haigh, for appellee.

MONTGOMERY, J. Plaintiff brought an action of assumpsit to recover for services rendered to the defendant. Plaintiff's testimony tended to show that defendant, on engaging in the grocery business in 1889, employed the plaintiff, and agreed to pay him a stated salary, and, in addition, 2 per cent. of. the profits of the business; that for the first year the 2 per cent. was paid to the plaintiff; but that after that time no inventory was made showing profits, and no payment on account thereof was made to the plaintiff. The circuit judge directed a verdict for the defendant, holding that the agreement constituted the plaintiff and defendant copartners, as matter of law. We think there was error in this. It was certainly competent for the jury to find, from the testimony, that the parties considered this agreement as one measuring the compensation for services rendered, and that it was not intended that the plaintiff should acquire, by the agreement, a vested interest in the profits as such, or any more than a contract right to insist upon the payment of this sum in consideration of the services rendered. Child v. Emerson, 102 Mich. 39; Beecher v. Bush, 45 Mich. 188; Wilcox v. Matthews, 44 Mich. 192; Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 613.

It is contended, however, that, as plaintiff failed to show what the profits were, he was not damaged by the ruling. While the proofs do not make very clear the amount of profits, we are not able to say that there was

an entire absence of proof, and we would feel great reluctance to determine any case on the absence of proof when the court below has not passed upon the question, and when it does not appear to have been presented to the court.

It is also insisted that, even though the facts do not show a partnership, yet, as the agreement involves an accounting, the remedy is not at law, but in equity. While it is true that the plaintiff might have had a remedy in equity, under the authority of Clarke v. Pierce, 52 Mich. 157, and Warren v. Holbrook, 95 Mich. 185, yet this remedy is not exclusive of his remedy at law. Id. The court at law has full power to appoint auditors to state the account. 2 How. Stat. § 7386.

Judgment reversed, and a new trial ordered.

GRANT, HOOKER, and MOORE, JJ., concurred. LONG, C. J., did not sit.

GODSHALK v. AKEY.

WILLS-CONSTRUCTION-LIFE ESTATE.

A bequest to the testator's wife of "the sum of $2,000, the interest on said sum, at the rate of 7 per cent. per annum, to be paid to her annually during her life, and in case the $140 per year shall not be sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need more than the interest on said sum, then she shall use so much of the principal as is necessary for her support and maintenance, and the payment of her needed medical attendance and funeral expenses," vests in the wife only a life estate in the fund, coupled with a right to use such part of the principal as her needs require.

Appeal from St. Joseph; Yaple, J. Submitted April 23, 1896. Decided May 19, 1896.

Bill by Josiah Godshalk against Alfred Akey, administrator of the estate of Ellen Godshalk, deceased, to construe the will of Jacob Godshalk, deceased. From the decree rendered, defendant appeals. Modified and affirmed.

David Knox, for complainant.

H. P. Stewart (Alfred Akey, of counsel), for defendant.

HOOKER, J. Josiah Godshalk, the son and executor of Jacob Godshalk, deceased, filed the bill in this cause for a construction of his father's will, which was probated in the county of St. Joseph, in this State, in the year 1881. Letters testamentary were issued to the complainant at that time, and he proceeded with the execution of the trust, seasonably distributing the estate under the order of the probate court, with the exception of the fund of $2,000, which he retained as a provision for testator's widow, and which sum is the subject of this controversy. The widow, Ellen Godshalk, died on September 16, 1894, in Pennsylvania, where she had resided for some years, and one Akey was appointed administrator of her estate, at Centerville, St. Joseph county, Mich., on December 28, 1894, and demanded from the complainant the payment of said sum of $2,000 as an asset of Ellen Godshalk's estate. The question turns upon a construction of the will of Jacob Godshalk, of which the first is the important clause. It is as follows:

"First. I give and bequeath to my wife, Ellen Godshalk, the sum of two thousand dollars, the interest on said sum of two thousand dollars, at the rate of seven per cent., to be paid to her annually each year during her natural life; and in case the said sum of one hundred and forty dollars per year shall not be sufficient for her comfortable support and maintenance, or if, in case of sickness or feebleness of health, she shall need any more than the interest on said sum of two thousand dollars, then she shall use so much from the principal thereof as is

necessary for her support and maintenance, and the payment of her needed medical attendance and funeral expenses. I further give and bequeath to my said wife, Ellen, so much of the household furniture as she may need, to be selected by her, not exceeding the value of one hundred and fifty dollars."

The bill alleges the retention and investment of the fund of $2,000 by complainant, and annual payment of $140 to Ellen Godshalk, and avers that, by the death of Ellen Godshalk, it became his duty to close up the estate of Jacob Godshalk, and distribute the amount that should remain, after the payment of proper charges and expenses, including his own compensation for services in and about the trust. It also states the demand and claim made by the defendant, and prays a construction of the will, and a determination of the complainant's compensation.

The answer of the defendant leaves the complainant to his proofs as to most of the matters stated in the bill, but asserts that there was no limitation upon the bequest of $2,000 to Ellen Godshalk, and that the sum now belongs to her estate; that such sum constitutes her entire estate; that for several years before her death she was old and feeble, and was cared for by her son, who, at the time of filing said answer, had a claim before a court in Pennsylvania, for his services, exceeding in amount this fund; and that such son is not the only heir of Ellen Godshalk. The answer prays a decree that the fund be paid to the defendant, for distribution as the law directs.

Very little testimony appears to have been taken, the oral testimony being summed up in the following:

"Josiah Godshalk was sworn as a witness for complainant in said cause, and, being examined in open court, gave evidence tending to show that no request or demand was at any time made by Ellen Godshalk, or by any one on her behalf, in her lifetime, on him, as executor and trustee of said fund of $2,000, for any part of the principal of the same, to be used in her support and maintenance, or for any purpose; and also evidence tending

to show the presentation to him, as executor of the estate of Jacob Godshalk, after the death of said Ellen Godshalk, by Andrew A. Bruch, a son of said Ellen Godshalk, of the account following, marked Exhibit A,' and the modified statement of said account, marked 'Exhibit B;' such evidence being introduced for the purpose of showing how said bequest was treated by Ellen Godshalk in her lifetime, and by Andrew A. Bruch, a son of said Ellen Godshalk, and one of the heirs of her estate, after her death."

The circuit court sustained the complainant's contention as to the construction of the will, viz.:

"That the true intent and meaning of said testator, as expressed in said will, was to vest, and in legal effect vested, the title to the residue of said fund, that remained upon the death of Ellen Godshalk, in the residuary legatees named in the fourth clause of the will of Jacob Godshalk, aforesaid; and the same passed, as residue of his estate, under said residuary clause, and to the persons therein named, subject only to the limitations and restrictions of said fourth clause."

It was also found that—

"Upon the argument of said cause, no question was raised or submitted, under the pleadings and proofs, as to the right of any person or persons to any portion of said fund on account of care and expense attending the last sickness or funeral of said Ellen Godshalk; such questions being expressly waived in this proceeding, as not being raised by the pleadings and proofs, the sole purpose of the same being a construction, as heretofore found."

The following order was made as to compensation and -costs, viz.:

"I further find, and it is ordered, adjudged, and decreed, that complainant is entitled to compensation out of said fund for his care and management of the same, and, upon consideration of the premises, hereby fix such compensation, up to the date of this decree, at the sum of one hundred and seventy-five dollars, and that said fund is also chargeable with complainant's solicitor's fees, and the costs and expenses of this proceeding, and of

109 MICH.-23.