that he had worked the mine before and knew its condition, and that it contained a large body of ore in the body of the mine then filled with water, and allege error in the charge of the court in respect to this claim. We are satisfied that the circuit judge clearly and sufficiently stated the law on this point, as follows:

"If, gentlemen of the jury, you find from the evidence in the case that Mr. Berringer did make this statement, and if the defendants relied upon this statement in making this contract, and that but for this statement made by the plaintiff they would not have entered into this contract, then it would vitiate the contract; and in order to determine that, it is not enough for you to find that the representations were false, but you must find, first, that these statements were made for the purpose of obtaining the contract; that Mr. Berringer made these statements for the purpose of inducing the defendants, or the defendant Cobb, to enter upon this contract. You must further find that these representations were relied upon by the defendants in making this contract, and in consequence of them, and but for them that they would not have made or entered into the contract; and you must further find that they were false.

Now, gentlemen, a mere statement of opinion on the part of Captain Berringer as to the prospects of finding ore in the mine would not be such a representation as would in law entitle the defendants to rely upon them. It must be a representation of a fact or facts, and those facts must have been relied upon, and the defendants must prove that they were not true, in order to entitle them to a defense upon this branch of the case.

If, therefore, you find that he did make this statement, and that the defendants did rely on it in making their contract, and that it was false, then your verdict would be for the defendants on this branch of the case."

We find no error in the instructions' to the jury as to de

'The court charged as follows:

"The defendants claim as an offset to any claim the plaintiff may have, if he has any, the rent of a house upon the premises known as the Rolling Mill mine. So far as that is concerned, gentlemen, it seems nothing was said in the contract in regard to the use of a house by the plaintiff. In the absence of any such agreement, and in the absence of a showing of any custom as to the agent using such a house free of rent, I charge you there would be an implied promise on the part of the plaintiff to pay such rent as that house was reasonably worth.

58 MICH.-36

fendants' claim of set-off for rent of a house to plaintiff, or in any of the proceedings.

The judgment is affirmed with costs.

The other Justices concurred.

There is no evidence of any agreement in regard to it, nor is there any evidence in regard to any custom relating to it, and therefore during the lifetime of the contract up to the time that the defendants claim that they discharged the plaintiff, they would be entitled to an offset to the rent of the house for what it was reasonably worth.

By the COURT-I believe you abandon it for the rest of the time.

Mr. BALL-There was a couple of months after the expiration of the time.

Mr. HAYDEN-I would suggest, that if there was no intention on the part of the defendants to charge house rent, that they could not charge for it, any more than the plaintiff could charge for property in the absence of any agreement.

By the COURT-Gentlemen, I will say in regard to this, that there was no agreement; then in order to escape payment of the rent it must appear that there was a custom that superintendents of mines in the position that this plaintiff was in could receive their house rent free of charge. If there was such a custom, then these parties would have been considered to have made this contract with reference to that custom, and it is for you to determine, from the testimony, whether such a custom has been proven or not. If it has not been proven, then you must give the defendants the benefit of the rent of the house for what it was worth up to the time he was discharged. After that it would be for you to deter mine what the arrangement was between the parties.

If the plaintiff continued there under his agreement, the same rule would apply. If the hiring was only for a month, or from month to month, and you should find it terminated as the defendants claim, then what was the arrangement afterward? If, as George Berringer testified, it was the understanding or agreement that he was to look after the property for the house rent, then of course they could not charge for it.

Error was assigned:

E'eventh. Because the circuit judge instructed the jury in his oral charge: "In order to escape payment of rent, it must appear that there was a custom that superintendents of mines in the position that this plaintiff was in, could receive their house rent free; if there was such a custom, then these parties would have been considered to have made this contract with reference to that custom, and it is for you to determine from the testimony whether such a custom has been proven or not."

Defendants claimed that the only evidence on the point was that of Berringer, who said, "I never heard of a mining superintendent paying rent for the house he occupied."

WILFORD BOURGET V. ANDREW MONROE.

Contract for support-Mutuality-Specific performance-Damages-Surviving action.

1. A court of equity cannot enforce a contract specifically unless it can be done mutually and completely and so as to secure substantially beyond question all that the parties contemplate.

2. A man agreed to let his married daughter and her family live on a lot he owned if she would support him during his life, and also promised that the land should be hers after his death. She and her children died in his lifetime, however, and the old man thereupon turned her husband off the premises. The husband as sole heir to his wife and children professed his readiness to fulfil the agreement to support him, and demanded specific performance or compensation. Held, that his bill therefor would not lie.

3. A decree for specific performance is impracticable where the contract is for the support of a parent in consideration of his devising his land to the child, and involves continuous duties that a court of equity cannot regulate, and a conveyance by will, which no court can compel.

4. A wife's sole contract to support her father in her family, while living with her husband, if valid at all, cannot, upon her death, bind her husband against his will.

5. Damages are not recoverable in equity where no case for equitable relief is made out to which the damages would be applicable or subsidiary.

6. Personal actions do not descend to heirs, and they cannot sue on a contract made by their ancestor unless they have a cause of action on covenants running with land.

Appeal from the Superior Court of Detroit. (Chipman, J.) November 13.-November 19.

SPECIFIC PERFORMANCE. Defendant appeals. Reversed. Powell & Dorland and John G. IIawley for complainant.

Geo. S. Hosmer (Dickinson, Thurber & Hosmer) cited against the relief prayed, Clinton v. Fly 10 Me. 292; Eastman v. Batchelder 36 N. H. 141; Bethlehem v. Annis 40 N. H. 34; Flanders v. Lamphear 9 N. H. 201; Flood v. Finlay 2 Ball & B. 9.

CAMPBELL, J. This is a bill filed to obtain a specific performance or else compensation for the support of defendant. A general demurrer was put in, but overruled, and defendant appeals.

The bill alleges that in May, 1879, defendant entered intc an agreement with his daughter, Josephine Bourget, complainant's wife, which it is alleged was in substance that she should support and maintain him, except as to clothing, during his life, and that in consideration thereof he should allow her and her family to possess and reside upon a certain lot named, in Detroit, belonging to defendant, and that it should be hers absolutely after his death; that in pursuance of this agreement till her death, said Josephine supported and maintained defendant, and resided on the land; and that pursuant to the agreement defendant and wife made a deed to her in 1881. The bill does not aver the contents of this deed or that it was delivered. If it had been, the bill would be improper, because the contract would have been fulfilled, and the courts of law could secure the possession of the land if disputed.

The bill further avers that Mrs. Bourget spent $147 in improvements, and labor to the amount of $75; and that defendant's support and maintenance was worth $1300; that Josephine Bourget died intestate in August, 1883, leaving two little children, one of whom died about a fortnight after, and the other, who inherited his share, in October, 1884, leaving his father, the complainant, his sole heir; that defendant, immediately after his daughter's death, left the house and shut it up and excluded complainant, and on the day she died and before her death, repudiated the alleged agreement, which complainant avers his readiness to perform.

Complainant fears defendant will dispose of the property, which will make a recovery difficult, and asks an injunction and specific performance, or compensation.

If

We can see no foundation for jurisdiction in this case. Josephine Bourget were living, and had filed this bill herself, a decree of specific performance would, if made, involve continuous duties on her part, including all those household

cares and attentions essential to the decent care of parents by their children, which could not be constantly regulated by any process within the power of a court of equity, and which, if enforced unwillingly, would be destitute of the affection and confidence which are the chief value of such relations. The duties on defendant's part would also be continuous and dependent on good treatment, and the conveyance must either be made by will, which no court can compel a man to make, or by deed from his heirs. In other words, the performance could not be enforced mutually or at all, and is impracticable within any rule of equity.

The impropriety of interference in equity in such cases has been so uniformly recognized by this Court that it is not necessary to discuss it at length. A court of equity cannot enforce a contract specifically unless it can be done mutually and completely, and so as to secure substantially beyond question all that the parties contemplate. If this is impracticable, the remedy, if any exists, is to be found elsewhere. Buck v. Smith 29 Mich. 166; Blanchard v. Detroit, L. & L. M. R. R. Co. 31 Mich. 52; Rust v. Conrad 47 Mich. 449; Bumpus v. Bumpus 53 Mich. 346; Wright v. Wright 31 Mich. 380; Roberts v. Kelsey 38 Mich. 602.

The case of Bumpus v. Bumpus, so far as practicability is concerned, is a much stronger case in its facts than the present one, and the doctrine was there laid down that courts should not interfere in such cases. The case of Chipman v. Thompson Walk. Ch. 405, which is relied on by complainant, has no analogy to the present one. In that case full papers were made out, and a deed deposited in escrow and referred to in the written articles. The parties to be supported had both died, and the purpose of the bill was to compel delivery of the conveyance by the depositary. There was nothing difficult in the duties to be performed, and no delay required to determine whether the parties to the original agreement would perform their obligations.

In the present case the want of mutuality is especially manifest, apart from the other difficulties. It was never contemplated that the parent should have to look to any one but