"The sole test of the sufficiency of a notice of special matter of defense is that it shall apprise the plaintiff of the nature of the defense relied on, so that he may be prepared to meet it and to avoid surprise on the trial.” We think the notice was sufficient. 2. It is contended that it was error to permit the defendant to give in evidence the conversations with plaintiff's agent at the time the contract was made. The contract, however, specified that specifications were to be furnished, and axles guaranteed to interchange with samples sent of Sheldon's axles. These axles were not described in the contract, and the specifications mentioned were to be furnished in the future. The contract could only be understood in those particulars by what was said at the time of its execution; but, were this not admissible, yet, by the letters of the plaintiff, it was agreed that these axles should be set at the collar and shaped to a certain form. If the original contract did not contemplate such conditions, the letters would constitute a modification of the contract, and could be shown. Bish. Cont. § 764. 3. It is contended that the defendant sought to show the alleged loss of profits by wholesale. Instead of this, the witness gave the cost of each vehicle mentioned in the orders his attention was directed to, and the whole question was left to the jury under a fair charge, which limited the recovery to such orders for vehicles as defendant had in fact received and was not able to fill by reason of the neglect of plaintiff to supply the axles under the contract. The measure of damages is in accordance with the rule of Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147. 4. Some contention is made that the court was in error in refusing certain requests to charge. Substantially, the court gave such of these requests as were proper to be given. The court charged the jury that the burden of proof was upon the defendant to show that the plaintiff agreed to form the axles to pattern and set them at the collar; and upon the question of the measure of damages we find no error in the charge. The case, we think, was very fairly tried, and all questions of fact left to the jury. We find no error which would warrant a reversal of the case. Judgment is affirmed. The other Justices concurred. SCHULENBURG v. UFFELMANN. LANDLORD AND TENANT-SURRENDER OF PREMISES-CONSENT TO REPAIRS-EVIDENCE. Where a tenant has vacated the leased premises prior to the expiration of his term, mere knowledge on his part that the landlord has since entered, and is making repairs inconsistent with the occupancy of the premises, is insufficient to charge him with consent thereto, so as to affect the question of his liability for rent accruing subsequent to such entry. Error to Wayne; Hosmer, J. Submitted June 12, 1895. Decided September 27, 1895. Assumpsit by Charles Schulenburg against Charles A. Uffelmann for rent. From a judgment for plaintiff, defendant brings error. Reversed. Malcolm McGregor, for appellant. GRANT, J. Defendant was plaintiff's tenant by the year under a written lease, which terminated May, 1892. Defendant held over, and thereby became tenant for another year. He occupied until some time in February. January 24th he notified plaintiff that he would sur render the premises February 1st. This notice was given upon the assumption that his tenancy was from month to month. February 1st plaintiff notified defendant that he should hold him for the rent until the 1st of May; that he would endeavor to rent the premises on defendant's account, and charge him with any loss, and should hold him responsible for damage to the cellar floor by his negligent use of the same, and for damage to the drains by his failure to keep them clean. Some time in February defendant sent the key to plaintiff. Plaintiff entered upon the premises to make repairs. Defendant ascertained that he was liable for the rent, and claims that he bought 500 barrels of vinegar, intending to take possession of the building and store the vinegar in the cellar. He did not ask for the key, nor notify plaintiff of his intention to reoccupy. He claims that he went to the building, and from the street saw that repairs were going on, and that in consequence the building was in such condition as to be unfit for occupancy. He did not then notify plaintiff, so that he might, if he could, speedily complete the repairs, and have the building ready for occupancy. Plaintiff brought this suit for the rent. The defense was that plaintiff had accepted the surrender of the premises. The case was left to the jury upon that theory alone. The jury found, in answer to a special question, that the plaintiff did not enter and tear out the floor and repair the wall without the defendant's consent; and the judge instructed the jury that if the plaintiff entered without the consent of the defendant, and proceeded to make repairs inconsistent with the tenancy, then he would be discharged from paying rent. The sole question presented by this record is whether there was any evidence of such consent on the part of the defendant. No express assent is claimed, and we fail to find any evidence of an implied assent. The most that can be claimed is that the defendant had knowledge that the repairs were being made. The law did not require him to enter a protest, nor is he chargeable with assent from the mere fact of knowledge. For this error the case must be reversed, and a new trial ordered. The other Justices concurred. HANISH v. KENNEDY. 1. FINDINGS OF FACT-APPEAL. Findings of fact by the trial court, based upon conflicting evi- 2. BILLS AND NOTES-BANK STAMP OF PAYMENT EVIDENCE. 3. EVIDENCE-CONCLUSIONS OF WITNESS-HARMLESS ERROR. 4. BILLS AND NOTES-RIGHTS OF ACCOMMODATION INDORSER-CON- One who indorses a promissory note for the accommodation of the principal maker and an accommodation maker can maintain an action against them jointly upon being compelled to pay the note; and this is so although the indorser is not the payee named in the note, and the indorsement was made before its negotiation. The rule as to contribution between cosureties does not apply to such a case. 106 455 143 1482 Error to Kent; Grove, J. Submitted June 13, 1895. Decided September 27, 1895. Assumpsit by Anthony Hanish against Robert J. Kennedy and James Kennedy on promissory notes. From a judgment for the plaintiff, the last-named defendant brings error. Affirmed. Wolcott & Ward, for appellant: The defendant James Kennedy was no more than a cosurety with plaintiff as to any of the notes; as to a part, plaintiff was a joint maker; and the sole remedy of plaintiff is to sue for contribution. Robbins v. Brooks, 42 Mich. 62; Stewart v. Goulden, 52 Mich. 143; Farwell v. Ensign, 66 Mich. 600; Fay & Co. v. Jenks & Co., 78 Mich. 312, and cases there cited; Stevens v. Hannan, 86 Mich. 305, 88 Mich. 13; Bank v. Trowbridge, 92 Mich. 221; Chaffee v. Jones, 19 Pick. 260. Reuben Hatch and A. W. Johnston, for appellee: Indorsers are prima facie liable in the order in which they sign the paper (Greusel v. Hubbard, 51 Mich. 95; Sweet v. Woodin, 72 Mich. 393; Farwell v. Ensign, 66 Mich. 600; Cook v. Brown, 62 Mich. 473; Camp v. Simmons, 62 Ga. 73); and accommodation indorsers are no exception to this rule (McGurk v. Huggett, 56 Mich. 187; Shaw v. Knox, 98 Mass. 214; Pomeroy v. Clark, 1 MacArth. 606; Connely v. Bourg, 16 La. Ann. 108). HOOKER, J. The plaintiff recovered a judgment against Robert J. and James Kennedy. The latter appealed. The findings of fact show that the court found that the defendants gave their joint and several promissory notes to certain banks, and that the plaintiff was an accommodation indorser, and was obliged to pay the same; also, that defendants gave other similar notes to the plaintiff; and that both defendants were sober when the notes were given. Upon these findings judgment was rendered for the plaintiff. Subsequently the findings were amended, and made to show that, at the time that the several notes |