offered to perform their part of the agreement. The defendants absolutely refused to convey said premises to complainants, and thereupon the bill of complaint in this cause was filed, praying for specific performance of the above agreement. The defendants answered, claiming that there was a mutual mistake in said lease and agreement, and alleging that defendants intended by such agreement only to give complainants the first chance to buy said premises in case defendants might desire to sell the same, and, claiming the benefit of a cross-bill, prayed that the agreement be reformed in accordance with the intention of the parties. The cause was heard before the trial court upon the testimony of witnesses taken in open court as in a suit at law.

The principal controversy upon the hearing was as to whether there was any mistake in the making of the lease and agreement, and there was some conflict in the testimony upon this subject. The parties are all Polish people, and are not very familiar with the English language. It is uncontroverted that the agreement was written by a countryman and acquaintance of the parties, Basila Lemkie, who wrote the instrument at the request of both parties. This witness testified fully that the parties told him in the Polish language everything which they wanted in the lease, and that he prepared it with care, and read it over and translated it to them. He used this language:

"They told me what they wanted in Polish, and I read it over and translated it back again. In important matters I generally do this."

He testified fully to the effect that the parties both understood the conditions of the lease, and that he not only explained it at their request, but also prepared the instrument in duplicate, giving one draft to the complainants and one to the defendants. An examination of the testimony of the parties shows that some parts of their testimony are inconsistent with their respective claims. We think this is due to the fact of their inability to express

themselves in the English language. While there are some inconsistencies on both sides in the testimony of the witnesses, yet in view of the facts that the contract is very clear and explicit in its terms upon its face, and that it appears to have been drawn by Mr. Lemkie, and fully explained to the parties, we think by a clear preponderance of the evidence there was no mutual mistake, and that the contract should be permitted to stand, and that there should be a substantial specific performance of the same. It appears that the defendants had mortgaged said premises, and that at the time of the hearing there was due for principal and interest upon said mortgage the sum of $2,956.39.

The complainants having elected within the first year to take said premises at the price named, the court decreed specific performance of the contract upon payment to appellants of the sum of $4,250, less the amount of the mortgage. The trial court applied the rent paid subsequently to the commencement of this suit, being for eight months at $30 per month, amounting to $240, on the purchase price. In this we think the trial court committed no error. In their brief defendants seem to misapprehend the facts upon this point, and claim that the court applied on the purchase price the money paid as rent before the time of the exercise of the privilege to purchase. In this we think the defendants are wrong. The decree is explicit in stating that this $240 was paid after the commencement of the suit, and such from the testimony would seem to be the fact.

It is further claimed by the defendants that they have expended upon the property altogether, after complainants went into possession, in repairs and improvements, the sum of $244.66, and they ask to be allowed this sum. An examination shows, however, that $37.25 of this amount was spent in repairs, upon the house and sewer, to render the premises tenantable or habitable, and we think this latter amount should be deducted from the $244.66, leaving the sum of $207.41, which should be allowed to de

fendants for permanent improvements upon the property by way of pavement and cement sidewalk. We have frequently held that a party is not entitled as a matter of right to specific performance of a contract, and, where the same is prayed for, that complainants should do equity. If the complainants are to obtain these premises, it is only equitable under the circumstances, as shown in this record, that defendants should be recompensed for this outlay of $207.41 for permanent improvement of the premises, and this amount will be decreed to be allowed to said defendants. By the terms of the contract the complainants were to pay in cash the price of $4,250. They should be permitted to have deducted from this sum the amount necessary to release the mortgage upon the premises. We think it equitable that complainants should obtain and tender to the defendants a release of this mortgage and of all liability of the defendants thereunder. We understood at the hearing that complainants were prepared and willing to do this, and we think the decree should so provide.

The decree below will be modified as above indicated, and in all other respects affirmed. The complainants should recover of defendants their costs in the court below to be taxed, but the defendants should be allowed their taxable costs in this court.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, and BIRD, JJ., concurred. OSTRANDER, J., did not sit.

SCHADT v. BRILL.

1. DEEDS-RESTRICTIONS-NOTICE-VENDOR and PURCHASER. The record of a deed from persons platting a subdivision containing restrictions as to the size and kind of buildings to be erected on the lots, is notice to a subsequent purchaser through an instrument of conveyance having no restrictions. 2. SAME-WAIVER.

That another house, in violation of the building restrictions, had been constructed over a quarter of a mile away and across a 60-foot street, in a part of the subdivision not so exclusively residential, and that no one objected, did not operate as a waiver of complainant's rights.

3. SAME.

A person owning property in restricted territory does not waive or lose his right to enforce restrictions when violation of them becomes especially injurious to him on the ground that he has previously omitted to protest against other violations or to insist on the observance of restrictive covenants in other portions of territory not particularly affecting him. 4. SAME.

Under a restriction against the construction of stores, factories, or other buildings than a dwelling house with usual appurtenances, costing at least $5,000 and of not less than two and a half stories, the owner of a lot is prohibited from erecting a double house, with a single entry way, intended for the use of two families.

5. SAME-WORDS AND PHRASES.

A dwelling house is the house in which a man lives with his family; a residence; the apartment or building or group of buildings occupied by a family as a place of residence; it is not two homes under one roof or a double house.

Appeal from Wayne; Hosmer, J. Submitted January 29, 1913. (Docket No. 123.) Decided February 18, 1913.

Bill by Mary Schadt against Daniel Brill and another for an injunction against the violation of building restrictions. From a decree for complainant, defendants appeal. Affirmed.

Louis C. Wurzer and Harry B. Keidan, for complainant.

George B. Greening, for defendants.

STEERE, C. J. In this case defendants have appealed from a decree of the circuit court of the county of Wayne, in chancery, enjoining them from erecting any double house, flat, or dwelling house building, intended, or suitable, for the separate occupancy of more than one family, upon lot 5, of the Whitney subdivision of part of private claim 678, fronting on the west side of Grand Boulevard East, in the city of Detroit. Said subdivision consists of 77 lots, 32 of which front on the west side of Grand Boulevard East, and 45 on the east side of Helen avenue, the next parallel street to the west. All deeds and land contracts given by the platters of said subdivision for any of said lots contained the following restrictions:

"This conveyance is made upon the express condition that no store, factory or building, other than a dwelling house with the usual appurtenances thereto, shall be erected upon the above-described premises, and that said premises shall be used for residence purposes only, and that no dwelling shall be erected thereon at a cost of less than $5,000, exclusive of the value of outbuildings and appurtenances thereto, and that such dwelling house shall not be less than two and one-half stories high, and shall have a brick or stone cellar under the whole thereof, and shall not be erected within twenty feet of the front or street line of said premises, and shall front or face the boulevard."

The testimony shows that the platters intended and advertised to make the Whitney subdivision an exclusive, high-grade, residential section of the city, to be occupied by attractive, private homes. The restrictions were generally, though not universally, understood, and interpreted in practical application, as permitting upon each lot nothing but a dwelling to accommodate a single family. Certain owners testify that was the controlling inducement in selecting this location for a home. All the lots