thereby his damages have been aggravated, that aggravation should be considered, and should reduce his claim."

We think this instruction to the jury was all that the defendant was entitled to have given on this subject.

9. Defendant's first request was as follows:

"The evidence in the case shows that plaintiff knew of the existence of the hole in which he claims he fell, and that at the time of the injury he was running upon the walk, in company with other boys, and did not look at the sidewalk, or take any care to avoid injury to himself, but was looking at the boy ahead of him; and that, if he had looked, or taken reasonable care, he would have seen the hole, and avoided the injury; that his neglect was such as to amount to contributory negligence upon his part, and that plaintiff cannot recover."

The circuit judge, instead of giving this request, left it for the jury to determine whether plaintiff used such care as boys of his age and discretion usually exercise on like occasions. This correctly stated the law. The request preferred implied that a prior knowledge would necessarily establish contributory negligence. Such is not the law. Graves v. City of Battle Creek, 95 Mich. 266, and cases cited.

10. Exception is taken to the language of plaintiff's counsel used in the course of his argument to the jury. The language used was as follows:

"Gentlemen of the jury, it is a mean insinuation and a defense that seems to be sustained on the part of the village to trample upon the rights of this child. You will see arrayed against this child the president of the village, and the large property owner right here, opposed to this child, and it is their right to do it; but I say, men of Huron county, that this is conspiracy on the part of this corporation to trample upon the rights of this child.

"(Mr. Hall: Objection, and take an exception to that.) "I do not mean to say that Mr. Hall or Mr. Nims intimated to these children what they were to testify to, but I do mean to say that the children met there with theThe children were not brought here at the last trial. I

say the children, before they met there at Mr. Monroe's house, had the impression in their minds that they were to testify to a certain place along there.

“(Mr. Hall: Object to that. There is no such evidence. "(The Court: You should follow the evidence, and not lay yourself open to such objections; and they should not be made frivolously.)

"Look, gentlemen, and I will show you a vile conspiracy in this case. Gilbert comes to my office, and says to me that by being in this case for that child, that innocent little boy, he says, 'Murphy, you are injuring yourself in Sand Beach.'

"(Mr. Hall: Object to that.)

"American citizens, what does that imply? It implies that Murphy is a spotted man, and boycotted already; and why? Because I protect a defenseless child against a powerful corporation. Because I tried to do it, I was myself threatened by the witnesses of this corporation, and I am a spotted man.

"(Mr. Hall: There is no such testimony. Object to that, and take exception.)"

Mr. Gilbert was not connected with the village government, and there is nothing to show that the municipality was in any manner responsible for what he said to Mr. Murphy. The only basis of the statement is this: On cross-examination of Mr. Gilbert he testified: "I haven't taken any interest in this case. I might have told you less than two weeks ago that your connection with this case would injure you in Sand Beach. I told you a good many things in political times." The only foundation for a charge of conspiracy-a very grave charge, indeed, to make is the fact that some of the village authorities sent for these girls who were witnesses, and questioned them in regard to the transaction, and put to them leading questions, for the purpose of ascertaining what they knew about the accident; and my brethren are of the opinion that this was not sufficient to justify the intemperate language employed, that the error was damag

ing to the interests of defendant, and that the judgment should be reversed, and a new trial ordered.

The other Justices concurred.

SAMMON v. WOOD.

1. CONTRACT-PROMISE TO PAY AT DEATH.

An agreement to pay for services at death is valid, and enforce-
able against the estate of the promisor.

2. PARENT AND CHILD-ACTION FOR SERVICES-EVIDENCE.
It is not essential to a recovery by a child for services rendered
to a parent that a formal contract be established in relation
thereto, but if the facts and circumstances attending the per-
formance of the work and its acceptance are sufficient to rebut
the presumption that the services were gratuitous, and to
authorize the inference that both parties acted upon the under-
standing that they were to be paid for, the parent is liable.

3. SAME-QUESTION FOR JURY.

Where, in a suit by a daughter to enforce a claim against her father's estate for services, there is evidence that the services were valuable, that, during the period of their performance, the father frequently stated in the presence of the claimant that he intended to convey his farm to her in consideration of such services, that he did make such conveyance, but that the same was inoperative, the question whether the services were rendered and accepted with the understanding that they were to be paid for should be submitted to the jury.

4. DEED-HOMESTEAD.

A deed of a tract of land including a homestead, in which the wife does not join, is void as to the entire tract, if the homestead is incapable of severance.

5. ACTION FOR SERVICES-Evidence of VALUE-FAILURE OF TITLE TO LAND CONVEYED.

In an action to recover for services rendered under an agreement that they should be compensated by a conveyance of real estate, evidence of the value of the land, which was conveyed

as agreed, but the title to which has failed, is admissible to prove the value of the services.

Error to Ionia; Davis, J. Submitted October 25, 1895. Decided December 24, 1895.

Mary Sammon presented a claim against the estate of her deceased father, Michael Sammon, for services rendered, the allowance of which was resisted by O. Scott Wood, the administrator of his estate. The claim was disallowed in probate court, and the claimant appealed to the circuit, where a verdict disallowing the claim was directed by the court. Claimant brings error. Reversed.

Chaddock & Scully, for appellant:

If the facts and circumstances were such as would have authorized a finding that the services were rendered in the expectation by claimant of receiving and by her father of making compensation therefor, claimant was entitled to go to the jury, although no express promise on the part of the father was shown. Sword v. Keith, 31 Mich. 253; Hillebrands v. Nibbelink, 44 Mich. 413; Allen v. Allen, 60 Mich. 635; Scully v. Scully, 28 Iowa, 548; Cowan v. Musgrave, 73 Iowa, 384; Marietta v. Marietta, 90 Iowa, 201; Donahue v. Donahue, 53 Minn. 460.

An agreement by a father to compensate his child in land at his death will rebut the presumption that the services were gratuitous. Van Fleet v. Van Fleet, 50 Mich. 1; Dickerson v. Dickerson, Id. 37.

Where services are rendered upon an agreement that they are to be compensated in part by a testamentary provision, and no such provision is made, the estate of the employer is liable for enough to make up what the services were reasonably worth. Patterson v. Patterson, 13 Johns. 379; In re Bayliss v. Estate of Pricture, 24 Wis. 651; Jilson v. Gilbert, 26 Wis. 637; Ellis v. Cary, 74 Wis. 176; Wallace v. Long, 105 Ind. 522.

Although a contract by a father to pay for services rendered by a child remaining at home after coming of age will not be implied, yet, if an express contract to pay is proved, but the rate of wages is not agreed upon, a

recovery may be had upon the quantum meruit. Friermuth v. Friermuth, 46 Cal. 42; Manseau v. Mueller, 45 Wis. 430; Byrnes v. Clark, 57 Wis. 13.

Vernon H. Smith, for appellee:

To justify a recovery by the claimant, an express contract on the part of the father to pay for her services must be clearly shown. Robinson v. McAfee Estate, 59 Mich. 375; Allen v. Allen, 60 Mich. 635; Bank v. McLean, 84 Mich. 625; Wright v. Senn Estate, 85 Mich. 191; Burgess v. Burgess, 109 Pa. St. 312; Martin v. Wright, 13 Wend. 460.

MCGRATH, C. J. The plaintiff presents a claim against her father's estate for services. In his lifetime, in 1890, he conveyed to her a farm of 80 acres, and she gave back a life lease. This 80 acres included the homestead upon which plaintiff, her father, and her mother resided at the time. The mother's mind was impaired, and she was not in a condition to transact business, and did not join in the deed. When claimant discovered that the deed was invalid as to the homestead, she presented a claim against her father's estate for services. She was born in 1858, and remained at home until her father's death, in 1894. She had brothers and sisters, but they had married and gone,-the last one of them about 8 years before the father's death.

It appeared that, for a number of years before his death, the father's health was poor, and he was able to do little, if any, farm work; that for years he had been unable to put on his shoes, harness a horse, or get into a buggy unassisted; and that plaintiff had not only done the household work, but most of the outdoor work upon the farm, "laying fences, plowing, cultivating, drawing wood and hay, husking corn, drawing wheat and oats, and everything else that a man would do on a farm." The testimony offered on her behalf further tended to show that the father had frequently said to his neighbors