Upon this testimony the court directed a verdict for defendant, holding that plaintiff had failed to show any negligence on the part of the defendant company. A motion for a new trial was thereafter denied, and error was assigned upon such denial.

The only error argued in the brief for appellant is that the court erred in directing a verdict.

We are of opinion that the direction was warranted by the testimony. There is nothing in the record to indicate that defendant's car was operated at an excessive rate of speed or in any manner negligently.

It is obviously impossible to demand that motormen when running at proper speed should check their cars whenever they see a pedestrian in front approach the track. If the distance is sufficient for a crossing to be made safely, the motorman has the right to assume that the pedestrian will so cross, if the distance is insufficient he has a right to assume that the pedestrian will maintain a position of safety at the side of the track. The motorman is not bound to anticipate that the pedestrian will place himself in a place of danger; indeed, he has the right to assume the contrary. When, however, he becomes advised, or in the exercise of due care should become advised, of the peril of the pedestrian, it is his duty to use all means within his control to avert injury. When plaintiff's hat fell off and he attempted to recover it, the car was so close to plaintiff that to stop it before collision was clearly impossible. This conclusion is based upon the assumption of the truth of plaintiff's testimony as to the rate of speed. Had plaintiff's hat not fallen off and had he not stopped to recover it, he could have crossed the track in safety. The motorman could not anticipate that this would occur, nor was he bound to operate his car so as to be prepared for a contingency so remote. The facts in this case bring it within the principle of several of our own decisions.

Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Coessens v. Railway, 136 Mich. 481 (99 N. W. 751); Rollo v. Railway Co., 152 Mich. 77 (115 N. W. 727); Stenzhorn v. Railway Co., 159 Mich. 82 (123 N. W. 621). No negligence on the part of defendant having been shown, the question of plaintiff's contributory negligence becomes unimportant.

The judgment is affirmed.

MOORE, C. J., and STEERE, MCALVAY, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

EVANS v. WOODLEY.

MECHANICS' LIENS-CONTRACTS-PERFORMANCE-BREACH. Complainant was not entitled to a mechanic's lien under a contract providing that defendant should pay a stipulated sum when the work should be performed and accepted, upon a showing that he abandoned the work before he completed the contract, that to complete it would cost $110, and that the actual cost of completion was $250, and that defendant never accepted complainant's work.

Appeal from Wayne; Donovan, J. Submitted October 10, 1912. (Docket No. 19.) Decided November 8, 1912.

Bill by John Evans against Jennie N. Woodley for the enforcement of a mechanic's lien. From a decree for complainant, defendant appeals. Reversed.

Ralph M. Tate, for complainant.
Frank D. Andrus, for defendant.

BROOKE, J. The bill of complaint in this case is filed to enforce a mechanic's lien. The contract between the parties contained the following clause:

"The party of the first part, for and in consideration of the fulfillment by the said party of the second part of the covenants and agreements of the said party of the second part herein contained, does hereby covenant and agree to pay or cause to be paid to said party of the second part the sum of $495, when the work is completed and accepted by the said party of the first part."

Complainant introduced evidence tending to show that he had never fully completed his contract, and that defendant had not accepted the work. He further offered the evidence of two contractors, who examined the job after he abandoned it. They testified that to complete the job according to the contract would cost $110. Under these proofs defendant moved the court for a decree dismissing the bill. This having been denied, defendant offered evidence tending to show that to complete the contract she had been obliged to pay the sum of $250.

We are of opinion that the bill should have been dismissed. Here is an indivisible contract, by the terms of which nothing is due the contractor until the work is completed and accepted by the owner. By his own testimony complainant shows failure to complete on his part and failure to accept on the part of defendant. Under such a state of facts, the refusal to accept being reasonable, a bill will not lie to enforce a mechanic's lien for a balance claimed to be due. Boots v. Steinberg, 100 Mich. 134 (58 N. W. 657).

The bill of complaint is dismissed, with costs of both courts.

MOORE, C. J., and STEERE, MCALVAY, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

MARTIN v. SAGINAW CIRCUIT JUDGE.

ARREST CAPIAS AD RESPONDENDUM-AFFIDAVIT.

Relator's arrest on a capias should have been quashed, the writ being improperly issued on the affidavit of the plaintiff in the action that the defendant therein at a certain time and place, in presence of a person named, uttered certain slanderous words, and also at other times and places unknown to plaintiff, and in other discourses defendant published other slanderous statements, since no allegation that plaintiff had personal knowledge of the facts appeared in the affidavit, and its averments tended to negative any such knowledge.

Mandamus by Fred J. Martin against William G. Gage, one of the circuit judges of the county of Saginaw, to compel respondent to quash a writ of capias ad respondendum and discharge relator from arrest thereon. Submitted October 8, 1912. (Calendar No. 24,879.) Writ granted November 8, 1912.

McHugh, Gallagher & McGann, for relator.

Thos. A. E. Weadock, for respondent.

MOORE, C. J. Relator was arrested upon a writ of capias ad respondendum. Later he gave a bond for his appearance, and was released from custody. The portions of the affidavit material to quote here are as follows:

"STATE OF MICHIGAN, County of Wayne-ss.: "Madeline Clements Wanner of Detroit, in said county and State, being duly sworn, deposes and says that she is a married woman of the age of twenty-one years, having been married to Charles A. Wanner in New York City on the twenty-seventh day of June, A. D. 1911, by Rev. Mr. Goodchild, a minister of the Central Baptist Church of New York City; that since the year 1906 she has resided at Detroit with her mother, Luella Clements, widow of Harry Clements, formerly of Bay City, Michigan, where the family formerly resided; that her father, Harry Clements, died at Bay City on the thirty-first day of Octo

ber, A. D. 1901, and that since that time she has resided constantly with her mother; that she, the said Madeline Clements Wanner, has a claim for damages against Fred J. Martin, residing at Saginaw, in the county of Saginaw and State of Michigan, for the cause of action stated in the writ hereto annexed, upon which she believes she is entitled to recover the sum of twenty-five thousand dollars, and this deponent further says that the facts and circumstances upon which her said claim is based are as follows: Said Fred J. Martin on the 9th day of August, A. D. 1911, in the writing room of the Congress Hotel, in the city of Chicago, county of Cook and State of Illinois, in a certain discourse which the said defendant then and there had with William H. Gallagher, of Detroit, in the presence and hearing of divers good and worthy persons, did speak, publish, and declare these false, scandalous, malicious, and defamatory words of and concerning this affiant."

Here follows language, which, if not true and not privileged, was slanderous.

"And at other times and places within the past year, but on what particular time and at what particular places this affiant does not know, but especially at said city of Chicago, said Fred J. Martin, in certain other discourses with Morris Robinson of Chicago, Walter Bolger, and other persons not known to this affiant, falsely and maliciously said of and concerning said affiant, she being at the time a young girl of about fourteen, and both said Martin and this affiant being unmarried, falsely accused this affiant. * * This affiant further says that she is not guilty of any of such charges nor any similar charges and has been grievously injured by said false accusations. "MADELINE CLEMENTS WANNER.

[Signed]

"Subscribed and sworn to," etc.

A motion was made to quash the proceedings, in support of which motion relator filed his own and other affidavits. The reasons stated in the motion are:

"First. Because the affidavit of the above-named plaintiff for said writ of capias is not within the personal knowledge of said affiant, as appears from the face of said affidavit, and as appears likewise from the alleged facts stated therein.