made, which was signed by plaintiff, or by his father for him, under which it was agreed to return to defendant the note in suit at any time before the note was paid, if the defendant should be unsuccessful in securing all the stock of the stockholders; that he did not obtain all the stock, and offered to return plaintiff's to him, and demanded his note, which was refused; that this agreement was lost, and could not be produced on the trial.

On the other hand, the plaintiff contended that he made an absolute sale of this stock to defendant, and took his note therefor; that no such agreement as claimed by defendant was ever made, but that the only agreement made was put in writing and signed by defendant; that plaintiff held it, and produced it on the trial, and it is as follows:

"NEW YORK, November 1, 1892.

"I hereby agree to return to Mr. Marshall P. Wilder and Dr. Louis De V. Wilder, his father, the stock which they have sold to me in the Dr. Hercules Sanche Company at exactly the same price which I gave them, and at any time before my note given therefor is fully paid up, but not thereafter.

"HERCULES SANCHE."

The court below, at the close of his charge, stated to the jury:

"Now, gentlemen, this case all results down to two questions, and they are just as simple as A, B, C, * * * Was the note given for stock, out and out, without any condition? If it was, the verdict is for the plaintiff, $1,302.50. Second. Was the note given with conditions that it might be given back, and the stock taken back, on the happening of conditions? If so, the verdict should be for the defendant, no cause of action."

The plaintiff had a verdict for $1,302.50. brings error.

Defendant

The assignments of error all relate to the charge of the court, and the requests to charge.

In his second request, the defendant asked the court to charge:

"If you find from the evidence in this case that at the time the note sued upon was given, and at the time Exhibit 2 [the agreement signed by defendant, and above set out] was signed, another paper was signed by plaintiff, by and under which the plaintiff, or his father for him, agreed to accept from the defendant the return of the stock for which the note was given at any time before the note was paid, and you further find that the defendant offered to return the stock to the plaintiff for the note, then your verdict should be for the defendant."

It is contended that, while the court recognized in his charge the right of defendant to have this request given, yet its entire sense and meaning were destroyed by the remarks of the court in giving it. The request was given almost word for word as drawn, but the court added:

"Now, gentlemen, that request is so long it had better be explained. What does it mean, in two lines? It means if there was a lost paper that made this a conditional note, and they took back and he got his note, you would find for the defendant, because it made a condition of it. That is what that long request means. But they put it in a good many lines,-legally, but too long."

While the explanation of the request by the court was not very clear, yet we cannot believe the jury were misled by it, when we consider the other parts of the charge,especially the concluding portion of it, which we have quoted.

The defendant, by his fifth request, asked the court to charge:

"The affidavit made by Hercules Sanche denying the execution of the note in suit in manner and form as declared upon was a proper affidavit to be filed in this case, under the defendant's theory of the case; for, if the papers claimed to have been signed by the defendant were signed, then the note set up in the declaration in this cause was not in manner and form the agreement made by and between the parties, and the defendant could not compel the plaintiff to prove the execution of the different papers unless such an affidavit had been filed."

This request was given in full, but counsel contend that

the effect of it was destroyed by the remarks of the court following it; that the purpose of the request was to explain to the jury the reason for filing the affidavit, as counsel for plaintiff on the trial sought to impress upon the jury that the defendant had committed perjury in making it. There is nothing in the remarks of the court which could in any manner take away the effect of the request as given. The court said that:

"They had a right to make this affidavit, if they believed in the lost paper and the other conditions. In order to bring in the defense, they had to make some affidavit substantially as stated.

But, aside from this, when the matter of the affidavit was spoken of on the trial, the court said to counsel:

"The lawyers make up their papers in the case, and then they ask their clients to sign them, and, if they are any way obedient, they will sign them; and, if there is any blunder about it, it is the lawyer who is to blame, and not the parties.'

The defendant had nothing to complain of in these remarks.

The court, in one part of his charge, stated to the jury:

"If you believe the plaintiff's side of the case and the plaintiff's witnesses, taking them in sides now, then the plaintiff has made out a case. If you believe the defendant's side of the case, taking it in sides by the witnesses, then the defendant has make out a case."

It is claimed by counsel that this was error, and the case should be reversed for that part of the charge. In support of this proposition, counsel cite Henderson v. Railway Co., 116 Mich. 368. While the language used by the court in that case was similar to the above, and was held to be damaging to the defendant, the reason it was so held was that, in any view of the case, many of the facts testified to by the plaintiff's witnesses might be true, and yet no liability exist. That cannot be said in the present case. Here the issue was squarely made. The defendant testified to a certain contract being made, and signed by plain

tiff; that it was lost, but, if produced, would show that the plaintiff agreed to surrender the note when the stock was tendered back. The plaintiff testified that no such agreement was ever made, and in the final portion of the charge the court very plainly stated this issue. We think it cannot be said, under these circumstances, that the defendant's case was damaged by this charge.

There are some other portions of the charge of which complaint is made, but a reading of the whole charge, in view of the matters in controversy, convinces us that no error was committed.

The judgment will be affirmed.

The other Justices concurred.

JACOBSON v. ISMOND.

APPEAL-EQUITY-REFORMATION OF INSTRUMENTS-FRAUD. A decree reforming a mortgage so as to cover land claimed by complainant to have been omitted through defendant's fraud, being sustained by the evidence, was affirmed.

Appeal from Calhoun; Smith, J. Submitted April 18, 1899. Decided June 5, 1899.

Bill by Esther Jacobson against Oscar C. Ismond to reform a mortgage. From a decree for complainant, defendant appeals. Affirmed.

Frank W. Clapp, for complainant.

Fred M. Wadleigh, for defendant.

LONG, J. This bill was filed to correct and reform a mortgage, given by defendant to complainant, so that it

will embrace and cover lot 83 of Frisbie's Third addition to the city of Battle Creek, and render it a security for the payment of $1,000. The mortgage in question was dated February 7, 1896, due one year from date, with interest at 7 per cent., payable annually. There was no personal liability on the mortgage so executed, and the court below decreed that the principal and interest be paid within 30 days, or that defendant execute and deliver to the complainant a deed of the premises within that time. Defendant appeals.

It is claimed by complainant that she was engaged in the mercantile business at Reed City in February, 1896; that she wished to go out of business, and advertised the fact; that one Mr. Warren answered the advertisement, saying that he had Battle Creek real estate belonging to Oscar C. Ismond, and would exchange it for the merchandise; that, after some correspondence, the parties met at Battle Creek; that complainant and her son were shown two pieces of property, one known as the "Jefferson-Street House and Lot," and the other as the "River-Street Property;" that it was finally agreed that complainant would take these two pieces of property and some vacant lots for $8,500, and that the difference between the value of these properties and the value of the merchandise, when inventoried, should be secured by defendant by chattel mortgage on the stock; that, after the negotiations had continued for some time, it was suggested that such a mortgage on the merchandise would not be desirable, as it would amount to about $2,000; that the complainant and her son were then shown various other properties in Battle Creek claimed to be owned by the defendant, among which was a lot with a new house on it, mostly completed; that further negotiations were deferred until after the parties met at Reed City, and the mortgage taken, when the agent of defendant presented two mortgages, for $1,000 each. One covered what was called the "Gull Lake Property," and the other property in Battle Creek. These mortgages were tendered to secure the difference between