the jury that they should consider these facts in determining whether these alleged extras were or were not included in the contract. It is not good practice for the trial judge to select a portion of the testimony and give it prominence by instructing the jury that they should consider it. If the trial judge undertakes to refer to the evidence bearing upon a disputed point, he should carefully state it all on both sides. This request was faulty in calling attention to only one part of the evidence. It was not error to refuse it. The judge instructed the jury that, if they believed the testimony on the part of the defendant, these items were included in the contract, and plaintiff could not recover; but, if they believed the testimony on the part of the plaintiff, they were not included in the contract, and the plaintiff could recover for them. No error is assigned upon this instruction. It submitted to the jury all the evidence upon the question.

3. Errors are assigned upon the instruction of the trial judge as to the measure of damages which the defendant was entitled to recover provided the jury should find that the plaintiff had violated its contract in failing to construct the machinery in accordance therewith and the failure to deliver it within the time specified. The record is not in a condition to render it necessary to consider these alleged errors. It does not show what the judgment was. It does not even state that a judgment was rendered for plaintiff. It is impossible to determine, therefore, whether the plaintiff recovered the full amount of the contract price and the extras. There is nothing on the record to show that the jury found it necessary to consider the question of defendant's damages. If they found that the plaintiff complied with its contract, the question of damages was immaterial. Brown v. Harris, 139 Mich. 372, and authorities there cited. We said in that case, speaking through Justice CARPENTER:

"The jury must have found either that the goods actually conformed to the contract, or that defendants accepted them as conforming to the contract. If no error of

law was committed in reaching that conclusion (a subject which will receive attention later in this opinion), defendants were not, as they insist, injured by the exclusion of testimony offered by them tending to prove the amount of their damages. Had the excluded testimony been admitted, it could not have affected the result, since it bore upon an issue which the jury did not consider. The error in excluding such testimony, if error it was, was not prejudicial "—citing authorities.

4. The negotiations leading to the making of the contract were had mainly with Hector D. MacKinnon on the part of the plaintiff, and Dr. Thomas and Mr. Coon on the part of the defendant. Arthur MacKinnon testified that he was present during a part of these negotiations, but not all. He was permitted to testify that Dr. Thomas and Mr. Coon did not make certain statements testified to by them. He testified that he was present when the details were discussed upon which the proposition was made. The admission of this testimony is alleged as error. was competent for him to testify as to conversations he heard and what was, and what was not, stated in those interviews. A jury must be credited with common sense, and it is proper to assume that the testimony of the witness was ably presented to the jury on the part of the defendant. It cannot be assumed that the witness testified, or intended to testify, to conversations which he did not hear. There was no error in admitting the testimony.

The judgment is affirmed.

It

BLAIR, C. J., and MONTGOMERY, OSTRANDER, and BROOKE, JJ., concurred.

BARTHEL v. CRIPPEN.

EQUITY-SPECIFIC PERFORMANCE-CONTRACTS — PATENTS - INCONSISTENT CLAIMS-NEWLY DISCOVERED EVIDENCE-REMANDING. On a bill to establish an interest in certain patents, evidence of an interference case pending in the Federal patent office examined, and held, to be so inconsistent with complainant's claim as to justify a remanding of the record to the trial court for consideration in connection with the evidence in said interference case.

Appeal from Wayne; Brooke, J. Submitted November 17, 1908. (Docket No. 115.) Decided March 16, 1909.

Bill by Otto F. Barthel against George F. Crippen and Lewis Crippen for the specific performance of a contract and to establish an interest in certain letters patent. From a decree for complainant, defendants appeal. Reversed, and remanded.

Henry C. L. Forler, for complainant.

Lee N. Brown (John P. Kirk, of counsel), for defendants.

MONTGOMERY, J. This bill is filed by the complainant to obtain a decree declaring him entitled to a one-half interest in certain letters patent issued to the defendant George F. Crippen, and to the improvements made thereon. The bill alleges that the defendant is the owner of United States letters patent No. 753,370, dated March 1, 1904, and Canadian letters patent No. 92,058, dated March 14, 1905, and various other applications for letters patent of the United States serial No. 280, 242, filed September 26, 1905, and a certain other application for letters patent of the United States, the serial number and date of filing of which is unknown to the complainant. The bill avers that in February, 1906, complainant entered into a verbal agreement with the defendant, which,

briefly stated, was that the complainant was to advance an amount of money up to the sum of $2,500, and develop and construct a patent bean picker which was the invention covered by the letters patent in controversy, and to enlist the services of a competent engineer and draftsman to devise and get out new designs and new working drawings, tracings, blue prints, etc., and that in consideration of this advance the machines which were to be manufactured by the use of this money were to be placed upon the market and the parties were to share equally in the profits, and that in addition to that, the complainant was to receive an assignment of a one-half interest in the patents and improvements to be made thereon. The answer of the defendant denies in toto the claim of the complainant that he was to have any interest in the patent, and avers, on the contrary, that complainant agreed to build 10 machines under the patents described, and that said 10 machines were not to exceed in cost the sum of $2,500, or $250 each, and that defendant undertook to sell said machines at $600 each during the season of 1906, and that out of the gross sum so received complainant was to be repaid his $2,500, and money advanced at the rate of $5 per day to the defendant to pay his expenses on the road in perfecting and selling the machines, the net proceeds of $3,500 thus to be made to be divided equally, and the cost of making the patterns was to be taken out of defendant's share of $3,500 or thereabouts in addition to the $5 per day hereinbefore mentioned. It is alleged by the bill that after the parties had entered upon the performance of the agreement the defendant took possession of certain drawings which were being used in the construction of the machine, and took them away and refused to return them, and interfered with the completion of the contract by the complainant, who had done, and was doing, all that could be done in the performance of his contract. The answer denies that complainant was entitled to the possession of the drawings, and avers that they belonged to the defendant at all times. The bill

also sets out that the defendant George F. Crippen made a pretended assignment of the patents in question to Lewis Crippen, his codefendant, who purchased the same with full knowledge of the contract between his codefendant and complainant, and was not entitled to any greater rights in the patent than the defendant George F. Crippen would have had were it not for the assignment. The case was heard upon testimony taken in open court, and a decree entered that the complainant was entitled to and owned an undivided one-half interest in the inventions, letters patent, applications, and any and all improvements. The defendants appeal to this court.

Since the case was appealed, a motion has been made to remand the case (154 Mich. 499), for the purpose of taking testimony showing that George F. Crippen had filed an application in the United States patent office covering an improvement upon the original bean picker covered by the letters patent named in the bill, and that one Oliver E. Barthel, a brother of complainant, had filed an interference, which is still pending in the patent office, and that in such interference the complainant, Otto F. Barthel, was one of the attorneys representing said Oliver E. Barthel, and that the position taken by him in that interference case was wholly inconsistent with the testimony which he gave on the trial of the present case. It appears that in the interference case complainant made an affidavit referring to the present case, in which he stated that the subject-matter of the present case was to enforce a contract relation between himself and Crippen concerning certain patents, and does not concern in any way the parties to this interference nor the subject-matter thereof.

Turning to the record in the present case, we find that the complainant testified that before concluding his arrangement with defendant he spoke to his brother, Oliver E. Barthel, and in answer to the question, “And then what final agreement did your minds meet upon ?" answered:

"Now I told him this, I says, that machine cannot be