in the fall of 1886 or spring of 1887; the witness could not remember which.

This was the plaintiff's case as to the contract. But we think the court was right in not taking it from the jury. Whatever may be our opinion as to the facts, there was some evidence tending to show an employment, and, however slight and unsatisfactory it may seem to us, the weight and sufficiency of it were for the jury.

We think, however, that the court erred in excluding the letter written by Long to Bradley. The letter from defendant to plaintiff was introduced by plaintiff, and relied upon to support his claim of employment. That letter referred to a letter from Long. Defendant claimed that he only wrote to Parrish because of this letter; and we think he was entitled, under the circumstances, to put it in evidence.

The court also erred in instructing the jury that if the plaintiff went to Laramie in the employment of the defendant, under an agreement that the defendant would also go to Laramie in a short time,—

"And that the plaintiff should wait for the defendant there, then the plaintiff would have a right to remain in Laramie until he received notice from the defendant that his services were no longer wanted, or until such lapse of time as would reasonably and naturally convince the plaintiff that defendant did not desire his services there."

There was no testimony in the case that it was agreed that plaintiff should go to Laramie, and then remain until the defendant came there. The plaintiff testifies that there was no agreement when he should start; and, after the defendant said he was going to Ohio for two or three days, plaintiff waited four or five days for him to return Grand Rapids, and, as he didn't come back, he "started on." And the letters negative, if they have any weight, any idea that there was any such agreement.

The plaintiff states in his letter that he had written the defendant the day before, but testifies on the stand that he wrote but one letter, to wit, the one given in the record.

While the jury might have been warranted under the evidence in finding a verdict in favor of the plaintiff for his time and expenses in going to Laramie and returning, and for a few days at Laramie, there was no evidence by which he could recover for a sojourn of 30 days there at $25 per day, when he did absolutely no work except getting acquainted and talking with people. He had no right, under his own showing, to go out there with no instructions whatever from defendant as to what he should do in defendant's interest, and then stay there from day to day, without trying to find defendant's whereabouts, and without making a single move in defendant's behalf, without apprising a single person that he was interested for defendant, and not caring to go to the mine to see it, although invited by Long to do so, and then charge the defendant attorney's fees for doing nothing, on the ground that he was justified in staying there until defendant came, when there was no agreement that he should wait there for defendant. When he arrived at Laramie, if in the employ of the defendant, and the defendant did not come as he expected, and he knew not what to do in his employment, he should have taken reasonable means to find out where the defendant was, and what he wanted him to do. This he did not do, on his own showing, and we do not think he could recover for any expenses or services at Laramie, after the first few days of his sojourn there, because he failed to do so. In short, his conduct at Laramie does not seem to be entirely consistent with the idea that he supposed himself at the time to be waiting or working under promised pay from defendant or in his service. The

court correctly charged the jury, in this respect, at the request of defendant's counsel, as follows:

"The fourth I give: 'It is incumbent on the plaintiff to have a definite agreement with the defendant that he was employed by him before he was justified in expending time and money for which the defendant was to be held liable; and if he was in fact so employed, it was also his duty to use reasonable prudence and diligence to procure instructions as to the nature of the service expected of him, and the time when it was to be rendered; and if, without having such instructions, he begun or attempted to begin the performance of any services for the defendant, and, after having made the commencement, he came to a stop for a lack of instructions as to what to do, and remained for days and weeks without making any effort to inform the defendant of his situation, or to ask for instructions, he cannot recover anything for the time so wasted, nor for expenses incurred during such time.""

But he qualified it by saying in explanation that this definite agreement might be one to perform generally, and further said in that connection:

"And it is not necessary in order for plaintiff to recover in this case that there should have been a certain amount of money agreed upon as the consideration to be paid for the services of the plaintiff by the defendant, and, in the absence of such specific amount being agreed upon, the person performing is entitled to what his services were reasonably worth, as you find from the testimony in the

While this is good law in the abstract, it is claimed by counsel for the defendant that it obscured the vital point in this fourth request, which they had a right to present to the jury as it was, and that the jury were thereby misled; that it caused them to overlook the question of plaintiff's right to stay at Laramie without instructions, and without seeking any, and charging defendant for time and money wasted in waiting there under such circumstances. From the size of the verdict in plaintiff's favor, we should deem this claim to be well founded. Defend

ant was entitled to the instruction as he asked it, and the explanation was unnecessary. See Cook v. Brown, 62

Mich. 473 (29 N. W. Rep. 46); Babbitt v. Bumpus, 73 Id. 331 (41 N. W. Rep. 417).

The judgment of the court below must be reversed, and a new trial granted, with costs.

The other Justices concurred.

HARRY W. WILSON V. ROXIE AVERY WILSON.

Divorce-Death of party-Appeal.

1. Where no relief is sought not dependent on divorce, there can De no decree after death has separated the parties. Zoellner v. Zoellner, 46 Mich. 511.

2. An appeal lies from every decree in chancery which purports to be final, and its illegality is a conclusive reason why it should be reversed.

So held, where a decree of divorce was granted to a complainant after his death, with alimony to the defendant, which was reversed on appeal.

Appeal from Branch.

ary 25, 1889. Decided February 1, 1889.

(Loveridge, J.)

Argued Janu

Reversed as

Bill for divorce. Defendant appeals. unlawfully rendered. The facts are stated in the opin

ion.

Frank A. Lyon, for complainant.

Milo D. Campbell and Clayton C. Johnson, for defendant.

CAMPBELL, J. In this case complainant filed a bill for

divorce against defendant on the alleged ground of desertion. She filed an answer, denying any such cause of complaint, and made counter-charges, asking a divorce on her own behalf for his cruelty. The cause was submitted for decision, but complainant died before it was decided. The circuit court of Branch county nevertheless made a decree, and directed it to relate back to a period before his death; thereby granting a divorce in favor of complainant, and at the same time giving alimony to defendant. She appeals.

Zoellner v.

It follows

The bill and answer below were simple divorce proceedings, aimed at no relief not dependent on divorce. In such a case there can be no decree after death has separated the parties. The doctrine of relation does not apply in such a case. There must be living parties, or there can be no relationship to be divorced. Zoellner, 46 Mich. 511 (9 N. W. Rep. 831). that, as the parties were still husband and wife when the husband died, she has all the rights and conditions of any other widow. It is fallacious to claim that a decree apparently rendered during complainant's life, and therefore apparently valid, cannot be appealed from. An appeal lies from every decree in chancery which purports to be final, and its illegality is a conclusive reason why it should be reversed, as this decree must be.

We think no cause existed for the decree, even if it had been timely rendered, and we should be disposed to make defendant an allowance if it were not for the difficulty of providing in this Court, under all the circumstances, for such relief. But, as the widow's interest in her husband's estate entitles her to allowances in the probate court as well as otherwise, the hardship is somewhat lessened. We cannot, after her husband's death, consider her claim to divorce as an injured party, and