not give him the whole property; that there were some things which could be kept out, and make the difference. The talk was that the accounts, amounting to some $2,000 or $2,500, Prof. Hennequin's book, worth about $500, and Prof. Vaughn's book, worth from $400 to $500, and some blank books and stock, worth in all about $3,000 to $3,500, could be kept out; Kittredge to take the balance of the property, and defendant to take the Minneapolis property in exchange therefor. This proposition was considered by the defendant, and, after having investigated the value of the Minneapolis property, Mr. Kittredge came again to Ann Arbor, at plaintiff's request, and there the exchange was made, on or about Angust 17, 1883, by Kittredge taking the property, except that above enumerated, and the defendant taking in exchange the Minneapolis property, valued at $4,000. A mortgage back on the property sold for $3,500, and a cash payment of $1,500; thus making what was called $9,000. That after the sale was made plaintiff made demand for his compensation of $1,000, the amount he claimed defendant had received over the $8,000. This the defendant refused to pay.

The defense was (1) that the plaintiff did not effect the sale, but that the negotiations were carried on by defendant himself, and sale made by him. (2) That defendant simply made plaintiff an offer to sell the property at $8,000 cash; that this offer was made on Wednesday, and was to be kept good until the Friday following; and that he gave plaintiff no authority to make an exchange for other property, and did not make him his agent to negotiate an exchange. (3) That plaintiff having failed to effect the sale of the property at $8,000 cash, within the time limited, defendant had the right to withdraw the offer, and terminate the agency, if one existed; and if he did so, and subsequently effected a sale of the property himself, the fact that the purchaser was one that the plaintiff introduced, and that the sale was in some degree aided by the plaintiff's previous unsuccessful efforts to effect a cash sale, would not entitle the plaintiff to commissions on the sale made. (4) That the plaintiff's claim being for the amount realized over $8,000 cash, the plaintiff could not recover anything unless the property received in exchange exceeded in value, in cash, $8,000. (5) That inasmuch as no actual value of the Minneapolis property had been proven, no recovery could be had, as commissions could only be based upon actual value, and not at what the Minneapolis property was called in the trade. As appears from the former record, plaintiff's counsel requested the court to charge the jury, "if the jury find from the evidence that the defendant agreed with the plaintiff to pay him all over $8,000 which might be obtained for the property, * * and find that the plaintiff was the means of making such sale of such property to Kittredge for $9,000, or what was taken as $9,000, then the plaintiff is entitled to recover $1,000." And it appears by that record the court charged the jury, in accordance with plaintiff's request, as follows: "If you think that defendant did employ plaintiff to sell the property in question, and agreed that he should have for his services all he could get over $8,000, that through his efforts he induced Kittredge to enter into negotiations with defendant for the purchase of said premises, and that it finally resulted in a sale for $9,000 in the manner stated, then plaintiff is entitled to recover $1,000." The further claim was made by plaintiff on the former trial that, if the contract to pay plaintiff all he could get over $8,000 had not been complied with by plaintiff, yet if the defendant consented, to allow the plaintiff to continue negotiations for the sale, and that if such negotiations were carried on by plaintiff with his knowledge and permission, and finally resulted in a sale, then plaintiff is entitled to recover what his services were reasonably worth. The court adopted this theory also, and charged the jury substantially as requested. It was in view of these facts presented by that record that this court held: "From the testimony on both sides it appears that if there was any employment at all it was for so much as exceeded $8,000 on

the sale. There was no testimony tending to prove an agency without fixed compensation, or an agency to do anything but to sell the property. A very large part of the testimony consisted of opinions of witnesses as to what commissions and compensations would be proper in such a case to a land-broker, and all of this was erroneously admitt d. It was not only irrelevant, but it showed that the price which plaintiff claims he was to receive was very much beyond any usual commission, and could not be based on anything but an express contract; and we do not see on what basis there could be any estimate of the value of services in introducing a purchaser with whom defendant made his own terms, which could be sued for on quantum meruit. All this part of the case, and the instructions allowing such an inquiry, must be regarded as involving error. So far as we can infer from the testimony, we have very great doubt whether there was enough to go to the jury indicating that defendant ever made any promise to allow plaintiff the excess over $8,000 upon any but a sale on a casli basis." As appears by the former record presented to this court, the whole claim on the part of the plaintiff was for the amount the property sold for above $8,000, and, if that claim was not established, then, having brought about the sale, he was entitled to recover what his services were reasonably worth; and a large amount of testimony, consisting of the opinion of witnesses, as to what commissions and compensation would be proper in such a case to a land-broker, was introduced. Nowhere throughout the whole record does it appear (and from the record it appears that all the testimony was returned) that after July 18, 1883, a new contract was made by defendant with plaintiff to allow him $1,000 as a fixed compensation if plaintiff could induce Kittredge to buy the printing establishment after the defendant took out the accounts, books, etc., and that the defendant would take the Minneapolis property at $4,000, the mortgage of $3,500, and the cash payment of $1,500. Such an arrangement or agreement is not even hinted at in the record, either in the testimony of the plaintiff, the requests to charge, or in the charge of the court.

In the present case the whole claim of plaintiff for recovery is stated by the court in its charge to the jury: "The plaintiff claims that some days subsequent to this, this cash arrangement having fallen through, a modified agreement was made between him and the defendant Frothingham, and that by that arrangement the price was $9,000; that Kittredge was to pay Frothingham $9,000, $4,000 of which was to be by the sale of land in Minneapolis, $1,500 in cash, $3,500 in a mortgage back upon the stock, and that he (Kittredge) was to receive the property of the Register, taking out the accounts, Dr. Vaughn's book, Prof. Hennequin's book, and certain blank-books that were in the establishment; and it is conceded that this arrangement was finally carried out, and the sale of the property on that basis made. On this agreement, if at all, the plaintiff in this case must recover; and the plaintiff claims that he was to receive $1,000 for negotiating this sale." Further on in the case the court instructed the jury: "Plaintiff has sued under the contract for $1,000. IIe is entitled to receive this or nothing. There is no ground— no testimony-in this case for any other claim than that; and you, of course, will not be influenced by the fact that you cannot apportion this amount. It is not a suit for apportionment; it is a suit to recover upon the contract that it is claimed has been made. Plaintiff has planted himself in this action to recover that sum, and by that he must be bound." Plaintiff went through two trials, and under examination from his own counsel, and crossexamination by the opening counsel, and being asked by each to detail the whole transaction of his arrangement with defendant as to his compensation for making this sale, and upon each of those trials fixed the agreement as made July 18, 1883, and his agreed compensation or commission to be the excess of $8,000 realized from the sale; and at the same time his counsel making the claim on each of these trials that if this arrangement was termi

nated by the defendant, by reason of the sale not being made or completed within the time limited, then the plaintiff would be entitled to recover a reasonable compensation as commission, by reason of defendant permitting him to go on with the negotiations thereafter so that sale was completed, though not on a cash basis.

It is a somewhat peculiar circumstance that not until the third trial, and after this court had said there was grave doubt whether there was enough to go to the jury indicating that defendant ever made any promise to allow plaintiff the excess over $8,000 upon any but a sale on a cash basis, then for the first time in the history of the case the plaintiff remembers that some other and different contract had been made as to his compensation. Not the contract of July 18, 1883, under which he claimed to recover upon the other trials; not a compensation of the excess over $8,000; but a contract made some time subsequent to July 18th,-one made about July 29th,—and for a certain and specific sum,--the sum of $1,000,-a certain fixed and definite amount; this claim made under the same pleadings, the same bill of particulars, as in the former trials. The declaration was upon the common counts. A bill of particulars was demanded and furnished before pleading, and before the first trial. The office of a bill of particulars is to inform the opposite party of the cause of action to be relied upon, which is not specially set out in the declaration. Davis v. Freeman, 10 Mich. 188. It is probably true that the single item, "To services in July and August, 1883," in procuring a sale of the Register property to K. Kittredge for said defendant, would support a cause of action upon the quantum meruit, and upon an express contract to pay all that should be realized above a certain sum in the sale of the property. Even if it were true that such a bill of particulars might support a cause of action upon an express contract to pay $1,000 for furnishing a purchaser of the property upon specified terms, yet the plaintiff himself, by his own testimony and claims upon the two former trials, had given the interpretation to it that it was for services rendered in procuring a purchaser for this property, and to recover the amount for which it sold in excess of $8,000, or for what his services were actually worth. This construction, to which plaintiff had adhered upon two trials, the defendant had a right to expect would be the one given to it upon the third trial. The plaintiff, having claimed a recovery under it upon one express contract, must be estopped from seeking a recovery upon any other contract under the same item. The bill of particulars in no way indicates to the defendant that the plaintiff seeks to recover upon an express contract to pay a fixed sum for finding a purchaser of the property upon definite terms. If the plaintiff sought to recover upon any such contract, there should have been some reference to it in the bill of particulars. Even if this were not so, the plaintiff cannot be permitted to take a position now wholly inconsistent with that taken on the former trials. The contract now claimed under is wholly inconsistent with that claimed upon the former trials. If this contract was made, then the one upon which the former recovery was had did not exist, and no recovery could have been had thereunder. If the contract was to pay all over $8,000, then an express contract to pay a certain and specific sum did not exist. If such inconsistent positions were allowed to be taken in courts of justice, there would be no end to litigation. Parties finding contracts upon which they have relied for recovery cannot be upheld in the courts are not permitted under the same pleadings and bills of particulars to retry their case upon an entirely different contract, and one entirely contradictory to the one first claimed under, even for the purpose of meeting the opinion of this court, and squaring their case with it. There is great doubt, on the facts shown by this record, whether there was any testimony supporting plaintiff's theory to go to the jury, that the sale was made by his efforts pending his employment, if any such employment ever existed. From the view we take of this case, it is not

necessary to discuss the other questions raised. The plaintiff, if he is entitled to recover at all, must do so under the contract claimed upon the two former trials. The judgment of the court below must be reversed, with costs, and a new trial ordered. The other justices concurred.

SMITH V. SMITH et al.

(Supreme Court of Michigan. October 19, 1888.) DEEDS-CONSTRUCTION-FEE-SIMPLE-REPUGNANT HABENDUM CLAUSE.

A man of some 70 years of age, who owned a large estate, and was in poor health, gave one of his sons a deed by which, in consideration of love and affection, promises made by the father, improvements on the land by the son, and services by the son to the father, he released and quitclaimed to the son "and to his heirs, for the use, benefit, and support of himself and his family, and the proper education of his children," habendum for life, and after his death to his children in fee-simple, for the uses therein set forth, with a covenant by the grantee to keep and use the property in the manner and for the purposes for which it is conveyed, and to make no conveyance during the life-time of any of his children or of his brothers or sisters. The father knew that the son was married, but had no children. At the same time similar deeds of other property were made and delivered to each of the other children, and to six of the grandchildren of the grantor; one other son being also childless. The grantee in each deed joined in executing it. Held, that the deed, by its granting clause, and in the intent of the grantor, conveyed a fee, and the habendum should be rejected for repugnancy.

Error to circuit court, Cass county; THOMAS O'HARA, Judge.

Ejectment by Henry W. Smith, executor of Joseph Smith, deceased, against Eusebia Smith, John Longsduff, and William Payser. The defendants bring error from a judgment for plaintiff.

Howell Carr and Edward Bacon, for appellants. Harsen D. Smith, (C. I. Walker, of counsel,) for appellee.

LONG, J. This is an action of ejectment, brought by plaintiff, as executor of the last will and testament of Joseph Smith, deceased, to recover the possession of about 300 acres of land in the township of Calvin, Cass county, said to be worth about $9,000. There is no dispute as to the facts, and the whole question turns upon the construction of the following deed:

"This indenture, made this second day of February, in the year of our Lord one thousand eight hundred and eighty, between Joseph Smith and Jemimah Smith, his wife, both of Cassopolis, Michigan, of the first part, and Thomas J. Smith of the second part, witnesseth: that said parties of the first part, for and in consideration of the sum of one dollar, and in further consideration of love and affection and promise made by parties of the first part to party of the second part, and of improvements made on the land herein described by the party of the second part, and for service rendered to the parties of the first part by the party of the second part, have granted, bargained, sold, remised, released and quitclaimed, and by these presents do grant, bargain, sell, remise, release and quitclaim, unto the said party of the second part and to his heirs for the use, benefit, and support of himself and his family, and the proper education of his children, the following described land situated, lying, and being in the township of Calvin, county of Cass, state of Michigan, to-wit: The east half of the north-east quarter, and the north-east quarter of the south-east quarter, and fifty-eight acres off the north end of the west half of the north-east quarter of section seven; and the north-west quarter of the south-west quarter, and the south-east quarter of the south-east quarter, and the west half of the north-east quarter of the south-west quarter of the southeast quarter of section eight, all in town seven south, of range fourteen west, in said county of Cass, intended to be the same lands deeded to me by Henry W. Smith, to have and to hold for the period of his natural life, and after his death to his children in fee-simple, for the purposes and uses above set forth;

and in pursuance of the aforesaid grant and conveyance the party of the second part doth covenant and agree to and with the said parties of the first part, their heirs, executors, administrators, and assigns, to take, keep, and use the premises and property above described in the manner and for the purposes for which it is hereby and herein conveyed. That he will, during the period of his natural life, keep and preserve the same free and clear from levies, liens, and incumbrances. That the rents, profits, and incomes therefrom, so far as the same shall be necessary, shall be during his said life-time devoted to the support of his family and the proper and suitable education of his chil iren. That he will make no conveyance of any interest therein during the life-time of any of his children, or of any of his brothers or sisters.

"In witness whereof said parties have hereunto set their hands and seals the day and year first above written. Signed, sealed, and delivered in the presence of MARTHA E. DAVIS. JOSEPH SMITII, Seal.7 "JEMIMAH SMITII, TSeal.1 "THOMAS J. SMITII, [Seal.]"

L. D. SMITH.

This deed was acknowledged in due form of law before a notary public, and placed upon record in the office of the register of deeds of said county on the 15th of August, 1887. The facts and circumstances surrounding the giving of this deed, as shown by the record, are that the testator, Joseph Smith, of Cassopolis, was in 1870 the owner of the premises in question, and of a large amount of other lands in Cass county. There is no claim but what such ownership continued until 1880. He was the father of eight children, six of whom were living at the time of his death, in April, 1880. Two of them had deceased, each of them leaving three children. He also left a widow, who is still living. Previous to his death, and as early as 1872 or 1873, he permitted his son Thomas J. Smith, with his wife, to go into occupation of the premises in question, and to continue in the occupation thereof, taking the rents and profits, and paying the taxes, until February, 1880, when the deed in question was executed. His other children were permitted to occupy other of his lands in the same way, receiving the rents and profits thereof. At the commencement of 1880 he was in very poor health, and had been for a number of years, and for six months had been confined to his home. He was then 71 years of age. In February, 1880, he made provision for the distribution of his property among his children and grandchildren, he himself preparing the form of transfer of a portion of his real estate to each of his children and grandchildren upon the conditions therein named. They were drawn under his special direction by his granddaughter, May Armstrong, and he carefully examined each paper. They were all precisely alike, except as to the names of the grantees, and the description of the property conveyed. On the 5th of February, 1880, he and his wife executed and acknowledged, jointly with his son Thomas J. Smith, the instrument herein before set forth, and it is upon the construction of this instrument that this case depends. This deed was not recorded until 1887. At the same time, and as a part of the same transaction, said Joseph Smith executed to each of his six living children a note payable in real estate. The note executed to Thomas J. Smith was in the following words: "$3,713.00. CASSOPOLIS, Febry. 5, 1880. On or before ten years from date, for value received, I bind myself, my executors, administrators, and assigns, to pay to Thomas J. Smith, the sum of three thousand seven hundred and thirteen dollars, with one per cent. interest, in such real estate as I may have on hand, at a fair valuation. JOSEPH SMITH." JOSEPH SMITH." The notes to the other children were precisely like this, except as to the amount, being each of them for the sum of $5,000. On the 22d day of March following he executed his last will and testament, appointing his brother, Henry W. Smith, plaintiff herein, sole executor, with "full power to sell and convey any and all of my real estate in the settlement of my estate." This last will was subsequently admitted to probate, and the plaintiff qualified as executor. Joseph Smith died