the fact that the alleged contribution by McQuater of his expert knowledge of laundry machinery and his entire time and attention to the business is equalized by the allegation of Malone that he, too, is an expert machinist, and that he has given his entire time and attention to said business; and the fact that Malone equipped said laundry with all the machines and equipment used by it entirely at his own expense, and that said laundry represented, at the date of his answer, an investment on his part of the large sum of $1,177.58; and the belief of your respondent that the acceptance by McQuater from Malone of the sum of $5 per week, and the free use of three rooms and artificial light and heat for his services shows that there was no partnership between them, and, particularly under the circumstances alleged in said answer, is not inconsistent with said Malone's denial of the existence of a partnership-your respondent is of the opinion that the theory and contention of McQuater are not so probable as those of Malone, and that it is unreasonable to suppose that said Malone, entirely at his own expense, would have started said laundry, equipped it, and operated and maintained it this long period of time if he was not the sole owner of said laundry, and its business and all the machines and equipment used by it, or that said Malone would have started said laundry under a partnership agreement with said McQuater without any provision made for operating and maintenance expenses, or without any obligation or agreement on the part of said McQuater to furnish his share thereof, and without the knowledge and certainty that said McQuater had the necessary money so to do, and, being of such opinion, and exercising his discretion in the matter, your respondent accordingly made the said order dissolving the said injunction."

We must accept the return of the respondent that he did exercise his discretion in dissolving the injunction, and we are satisfied that there was no such abuse of discretion, if any, as to warrant us in ordering the injunction reinstated. Grand Rapids Electric R. Co. v. Calhoun Circuit Judge, 156 Mich. 419 (120 N. W. 1004).

GRANT, MONTGOMERY, OSTRANDER, and HOOKER, JJ., concurred.

158 MICH.-4.

BARENDSEN v. WILDER.

BROKERS-EVIDENCE-TRIAL-ERROR IN INDICATING TO THE JURY THE OPINION OF THE COURT.

In an action for commissions, wherein the broker testified that he sent a purchaser to the defendant, testimony that the broker had, after the sale, stated to the defendant that he did not know the purchaser, tends to contradict the plaintiff and renders the charge of the court erroneous in that he indicated to the jury his opinion that the evidence of the plaintiff was undisputed.

Error to Kent; Perkins, J. Submitted June 23, 1909. (Docket No. 100.) Decided July 15, 1909.

Assumpsit by Benjamin F. Barendsen against Edward M. Wilder for a commission on the sale of certain real estate. A judgment for plaintiff is reviewed by defendant on writ of error. Reversed.

Maher & Barnard, for appellant.

McKnight & McAllister and Horace L. Barnaby, for appellee.

BROOKE, J. Plaintiff recovered a judgment for $27.50 in justice's court for Kent county, against defendant, as a commission upon the sale of a piece of real estate. The defendant appealed the case to the circuit court, where a trial by jury was had, resulting in a verdict and judgment of no cause of action. The plaintiff then moved for a new trial, which was granted. The third trial resulted in a verdict for plaintiff for $27.50, upon which judgment was entered. This judgment is now here for review.

After the trial judge had submitted the case to the jury, and it had deliberated for some time thereon, it was brought into court by the learned judge (apparently upon his own motion), and the following additional charge was

"The Court: Gentlemen, what seems to be the difficulty? Do you require any further instructions in this case ?

"The Foreman: There has not been any asked, your honor, in any way.

"The Court: No further instructions have been asked? "The Foreman: No; not yet.

"The Court: I do not see why you take such a long time in deciding it. It is a simple question. You must consider the interest of the parties, and I cannot understand why you were so long in determining this case unless it was because some of you need some further instructions.

"The facts are that this property was placed in the plaintiff's hands to sell, not exclusively, but to sell or to secure a purchaser therefor, and the simple question is whether or not this man Armstrong, who testified in behalf of the plaintiff, went to Mr. Barendsen's office in response to an advertisement, and was sent by Mr. Barendsen to the defendant's home, and was left to negotiate with the defendant for the purchase of these premises. That is all there is to it.

"The defendant testified that Armstrong, when he came to his house, told him that Mr. Barendsen had not sent him. These two ladies, the wife of the defendant and the other lady, testified to substantially the same thing. I told you that that testimony only bore upon the credibility of Armstrong's testimony. It is not substantive proof. It would be wholly inadmissible except as bearing upon the credibility of Armstrong's story. It would not make any difference to Barendsen, the plaintiff, what Mr. Armstrong might have believed Armstrong said. The question is: Did Armstrong go there under the direction of the plaintiff? That is all there is of it.

"Now, if you find any testimony in the record to the contrary of the plaintiff's assertion, why, you are at liberty to find it; but, if you cannot, then you are bound to take the testimony as it stands. You examine this evidence and find wherein or whereby there is any testimony to the effect that Armstrong did not go to Wilder's house under the direction of the plaintiff. If you find there is any such testimony, then you can consider it; but, if you find there is not any such testimony, your duty is plain. "You may retire with the officer."

To which charge the defendant excepted. The defend

ant assigns error upon this action of the circuit judge. The record shows that the defendant testified as follows:

"I told Mr. Barendsen before the papers were made out that the property was sold, and I showed him the $25 that I got down. I told him who I sold it to.

"Q. Did he at that time say anything about Mr. Armstrong or his wife being the customer?

"A. He said he did not know the man."

This is certainly testimony tending to contradict the plaintiff's assertion that he knew Armstrong, and had sent him to defendant's place. Its value as evidence should have been determined by the jury under proper instructions. We are of the opinion that the last paragraph of the charge above quoted must have carried the conviction to the minds of the jury that, in the opinion of the court, there was no testimony in the record contrary to the plaintiff's assertion. This was error. See Cronkhite v. Dickerson, 51 Mich. 177 (16 N. W. 371); Letts v. Letts, 91 Mich. 596 (52 N. W. 54); Valin v. McKerreghan, 104 Mich. 213 (62 N. W. 340).

Judgment reversed, with costs, and a new trial granted.

OSTRANDER, HOOKER, MOORE, and MCALVAY, JJ., concurred.

In re RICE'S ESTATE.

1. CERTIORARI—APPEAL FROM PROBATE-TRIAL DE NOVO-RETURN TO WRIT.

Allegations of a petition for the writ of certiorari that an appeal from probate was not heard and tried de novo are conclusively answered by the return disputing the allegations.

2. EXECUTORS AND ADMINISTRATORS — ESTATES OF DECEDENTSCAUSE FOR REMOVAL.

Failure of an executor, for two years, to account, coupled with his change of residence to another State, and withdrawal of funds of the estate from the jurisdiction, warrant his removal, which is not precluded by any estoppel arising from the fact that the party asking such removal knew he intended to leave the State, when she petitioned for his appointment.

3. SAME-APPOINTMENT-DISQUALIFICATION.

An attorney for one of the persons interested in an estate as its sole creditor may properly be appointed executor.

Certiorari to Muskegon; Sessions, J. Submitted June 23, 1909. (Docket No. 62.) Decided July 15, 1909.

Emily G. Darby, a legatee, petitioned the probate court for the removal of Robert B. Rice as executor of the last will and testament of Robert Rice, deceased. The petition was granted, and said executor appealed to the circuit court. A judgment affirming the order of the probate court is reviewed by defendant on writ of certiorari. Affirmed.

Nims, Hoyt, Erwin, Vanderwerp & Foote, for appellants.

Stephen H. Clink, for appellee.

BROOKE, J. This is certiorari to review an order made by the circuit court for the county of Muskegon affirming