The charter does not, in so many words, say that a contract made by the city shall be void if any member of the council or city official is interested in it; but it is void, nevertheless, inasmuch as the charter imposes a penalty for the making of such a contract.

"A statute which imposes a penalty upon an act by implication ordinarily prohibits such act. A penalty usually implies a prohibition, although there are no prohibitory words in the statute." Elliott on Contracts, § 666.

See, also, In re Reidy's Estate, 164 Mich. 167 (129 N. W. 196); Case v. Johnson, 91 Ind. 477; Bishop on Contracts (2d Ed.), § 471; Dillon on Municipal Corporations (5th Ed.), § 773, and cases cited.

And a contract made void by charter or by statute cannot be ratified-there is nothing to ratify-nor can any recovery be had upon it. The courts will leave the parties as it finds them; and if it is a contract of sale, an action cannot be maintained for the value of goods delivered under it. Consolidated Coal Co. v. Board of Trustees, supra; Milford Borough v. Water Co., 124 Pa. 610 (17 Atl. 185, 3 L. R. A. 122); Berka v. Woodward, 125 Cal. 119 (57 Pac. 777, 45 L. R. A. 420, 73 Am. St. Rep. 31); City of Ensley v. Hollingsworth & Co., 170 Ala. 396 (54 South. 95); Nunemacher v. City of Louisville, 98 Ky. 334 (32 S. W. 1091). Nor will the courts inquire whether the terms of the contract are fair or unfair. The purpose of the prohibition is not only to prevent fraud, but to cut off the opportunity for practicing it.

There can be no doubt that Mr. Rikerd was an officer of the city. The board of police and fire commissioners, in exercising control over the police and fire departments of the city, is performing very important governmental functions. And the fact that Mr. Rikerd cannot be charged personally with having violated the charter, inasmuch as he had no knowledge of the sale

or delivery of the lumber, does not determine the case. Every contract with the city is made void when a member of the common council or an officer of the city has an interest in it, whether such member of the council or city official has or has not, himself, been guilty of procuring the contract.

The decree is affirmed, with costs to the complainant.

PERSON, KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

1. ESTATES

In re WIGENT'S ESTATE.

PARMALEE v. WIGENT'S ESTATE.

OF DECEDENTS-SERVICES-EVIDENCE-VALUE-EXPERT

OR OPINION TESTIMONY.

In a suit by one claiming to have performed services for decedent, opinion evidence to prove the value of claimant's services was improperly rejected by the trial court; its weight was for the jury.

2. SAME NOTE EVIDENCE.

It was also improper to receive in evidence a note for $25 that claimant had given to decedent and that had been adjusted by the commissioners on claims and offered in evidence by defendant not as a set-off but for other purposes.

3. SAME-IMPLIED CONTRACT-QUANTUM MERUIT.

Where there was no evidence of an express contract entered into by and between decedent and her cousin, who cared for the latter in her last years, to pay for the services, for which he presented his claim against her estate, the trial court committed reversible error in not instructing

the jury that a contract to pay therefor might be implied from the fact that the services were rendered by claimant and accepted by the decedent. Because of the remote relationship between decedent and the claimant, no presumption arose that the services were rendered gratuitously.

Error to Berrien; Bridgman, J. Submitted June 22, 1915. (Docket No. 97.) Decided December 22, 1915.

Albert F. Parmalee presented his claim for services against the estate of Fidelia Wigent, deceased, which was not allowed by the commissioners on claims, and claimant appealed to the circuit court. Judgment for defendant of no cause of action. Claimant brings error. Reversed.

John J. Sterling, for appellant.

Gore & Harvey, for appellee.

On October 31, 1912, one Fidelia Wigent of Watervliet, Mich., died testate. At the time of her death she was a little over 76 years of age. During the last 2 years of her life she had not enjoyed the best of health, and it was necessary that some one stay with her. In February, 1911, the plaintiff, a cousin of the deceased, and a man at that time about 70 years of age, commenced to live at the house of the deceased. It is nowhere conclusively shown in the record that he was invited to stay there, though such invitation may be inferred from the fact that he remained there until the death of Mrs. Wigent. While there he looked after the deceased as occasion required, and assisted as best he could with the household duties. During the 91 weeks prior to the death of Mrs. Wigent, the plaintiff was at the house continuously except on Friday afternoons and Saturdays, when he went to Hartford to work at his profession as an optician.

Upon her death the estate of Fidelia Wigent was admitted to probate, and commissioners of claims appointed. No provision having been made in her will for compensation for the services rendered by the plaintiff, he presented his claim to said commissioners in the sum of $637, that amount being $1 per day for the time he had been living at her house. The claim was not allowed by the commissioners, and an appeal was taken to the circuit court. Upon the trial in that court a verdict of no cause of action was rendered. Plaintiff now reviews his case in this court by writ of

error.

There are some 20 assignments of error which, in substance, may be classified as follows:

(1) Error upon the refusal of the court to permit plaintiff to testify to matters equally within the knowledge of the deceased.

(2) Refusal of the court to permit plaintiff and his witnesses to testify as to the value of the services rendered.

(3) Error of the court in admitting a promissory note given by plaintiff to deceased.

(4) Refusal of court to permit witness Burnside to relate conversation he had with plaintiff.

(5) Errors assigned upon the charge of the court as given.

BROOKE, C. J. (after stating the facts). It will be unnecessary to notice in detail each assignment of error. The first, we think, is without merit.

The assignments referred to in the second class above set forth are, in part at least, well taken. We can perceive no reason why the plaintiff should not have been permitted to give testimony as to what he considered his services to be worth. Nor is there any reason why his witnesses, after having qualified by showing their knowledge of what he did, should not have been permitted to give their several opinions as to the value of such services. The admissibility of such

testimony is clear. Its probative force rests with the jury.

The third assignment of error is based upon the ruling of the court admitting in evidence a promissory note for $25 made by the claimant in favor of the decedent, which had been adjusted by the commissioners on claims. In tendering it in evidence, counsel for the estate said:

"I offer this in evidence. I do not offer that as an offset against this claim, but I offer it for other purposes."

Counsel for plaintiff objected to it, saying:

"We object to that on the ground that it is immaterial, irrelevant, and incompetent for any purpose. That they do not offer it as an offset against our claim, and it has been taken care of before the commissioners on claims.

"The Court: I don't know that.

"Mr. Sterling: The record is here to show it. "The Court: I see where it may be relevant. "Mr. Sterling: The same matter relative to the things he purchased or that we claim he purchased. "The Court: The objection is overruled."

Whereupon the note was received in evidence. We are of opinion that the admission in evidence of this note was erroneous, although perhaps it cannot be said that it was prejudicial. However, upon the new trial we think it should be excluded.

The principal ground for reversal is based upon the voluntary charge of the court. That charge was in part as follows:

"Before the plaintiff, or rather the claimant, can recover there must be shown to you an agreement between the parties that this claimant was to be paid for his services, and there must be evidence that the services were to be paid for by the decedent. Not necessarily perhaps evidence that they came together and made a formal, what we call a formal agreement, but you must find there was an agreement that this woman was to pay this man for his services either, as the law