"A. I should say she is a total loss, so far as any use in rebuilding is concerned."

He said she could be raised, but might come up in pieces, and the job might perhaps be done for $2,000. He did not know whether she was in shape to utilize when raised, but apparently thought it improbable. He could not estimate the cost of repair. After cross-examination, he was asked the following question upon redirect:

"Q. Is it your judgment, taking into consideration the condition in which you found the boat, and the necessary cost of raising her, independent of the cost of rebuild or repair, that the boat, in her present cordition, is a total loss?

"A. Yes, sir."

This was the answer excepted to. The objection was that the witness did not regard himself competent to estimate the cost of repairs. As will be seen, the cost of repairs was eliminated from the question as originally asked. We think that the court was not in error in permitting the witness to answer.

Upon the general question, whether there was proof that the loss was total, we think that there was evidence tending to show it, and it follows that it was for the circuit court to weigh, and we cannot review it.

We discover no error in the record, and the judgment will be affirmed.

MCGRATH, C. J., LONG and MONTGOMERY, JJ., concurred with HOOKER, J.

GRANT, J. (dissenting). I cannot concur in the construction placed by my brethren upon the contract of insurance upon which the plaintiff seeks to recover. It seems to me entirely clear that this was a contract for what is known as "winter insurance," and covered the property insured only when the boat was "laid up and properly moored in the harbor of Bay City." This construction follows from the further language of the contract:

"Permission is hereby given to do painting, and to make necessary alterations and repairs, and to fit out in the spring, and to move from dock to dock for the purpose of loading and unloading cargo."

No such language would be appropriate or necessary to cover a boat and its contents while engaged in navigation. There could have been no object in describing the "steamer Burlington, laid up and properly moored in the harbor of Bay City," except it was to fix the locus in quo during the life of the policy. If it were the intention to insure the boat under all circumstances, it would only have been necessary to describe the property as the steamer Burlington and its contents. That the plaintiff so understood the contract is evident from his telegram to the defendant:

"Burlington was moored safely at dock when you wrote insurance, but you gave permission to fit out in the spring, and to move from dock to dock for the purpose of loading and unloading cargo. Look at your contract."

It thus appears that the plaintiff recognized the contract as one for winter insurance only, and sought to maintain its validity by interpreting the permission to move from dock to dock to apply to the boat when engaged in navigation. I do not think that courts should place a construction upon a contract different from that which the parties themselves have placed upon it, in a case where it is susceptible of two constructions.

I think the judgment should be reversed, and no new trial ordered.

JACKSON v. ORIENT INSURANCE CO.

FIRE INSURANCE.

Case ruled by Jackson v. British America Assurance Co., ante,

47.

Error to Bay; Maxwell, J. Submitted June 5, 1895. Decided July 2, 1895.

Assumpsit by Gurdon K. Jackson, trustee, against the Orient Insurance Company on a fire policy. From a judg ment for plaintiff, defendant brings error. Affirmed.

Shaw & Wright (H. D. Goulder and George Clinton, of counsel), for appellant.

T. A. E & J. C. Weadock (T. E. Tarsney, of counsel), for appellee.

HOOKER, J. This cause is ruled by that of Jackson v. British America Assurance Co., ante, 47, which it closely resembles.

Judgment affirmed.

The other Justices concurred.

MURRAY v. NEAR.

JOINT STOCK ASSOCIATION-WINDING UP-EQUITY JURISDICTIONCONSTRUCTION OF CONTRACT.

Several persons entered into a contract with D. by which they agreed to contribute certain sums "as and for stock" in an hotel building to be erected by him, and to "take in pay" a corresponding interest in the property. D. was to have the

use of the building so long as he should conduct an hotel therein, by paying interest to the others upon the amounts of their several subscriptions. D. constructed the building, and used it for hotel purposes for several years, paying interest as provided by the contract, but no stock was ever issued. Upon discontinuing the business as unprofitable, D. filed a bill to determine the interests of the respective parties, and to wind up the affairs of the concern. Held, that equity had jurisdiction; that the relation of debtor and creditor existed between the parties only as to the interest which D. was to pay while running the hotel; and that a decree was properly entered for a sale of the property, and a division of the proceeds among all of the parties in proportion to the amount furnished by each.

Appeal from Ingham; Person, J. Submitted June 5. 1895. Decided July 2, 1895.

Bill by Henry J. Donnelly against William F. Near and others to determine the respective rights of the parties in an hotel built by them, and to wind up the affairs of the concern. Complainant died pending the suit, and it was revived in the name of his administrator, Michael J. Murray. From a decree in favor of complainant, defendant Near appeals. Affirmed.

Q. A. Smith and Jay P. Lee, for complainant.
Arthur D. Prosser, for appellant.

GRANT, J. The rights of the parties to the contract involved were substantially settled in Near v. Donnelly, 80 Mich. 130. Pursuant to that decision the case was remanded, and referred to a commissioner, who reported to the court; and upon the coming in of the report the court decreed that Near was entitled to, and had an equitable lien upon, an undivided 5-18 of the property, and that the interest then due was $870.52. This Donnelly subsequently paid. The hotel business having become unprofitable, Mr. Donnelly discontinued the business, and filed the bill in this cause to determine the rights and interests of the respective parties, for the

appointment of a receiver, and for the winding up of the affairs of the concern. Mr. Donnelly died during the pendency of the suit, and it was revived in the name of his administrator. The court entered a decree that Mr. Near owned 50-180, and Mr. Teal 3-180, and complainant 127-180, of the property; that there was due to Near $82.99 for interest upon the closing of the hotel. The property was ordered sold, and the proceeds divided among the parties, giving to Mr. Near the accrued. interest.

Defendant insists that the relation existing between Donnelly and the subscribers was that of debtor and creditor. It was decided in the former case that that relation did not exist, but that each subscriber was entitled to an interest in the hotel property according to the amount of his subscription. The relation of debtor and creditor existed only as to the interest which Donnelly agreed to pay while he was running the hotel. Payment of this interest was enforceable in an action at law. Near v. Donnelly, 93 Mich. 460. We think equity had jurisdic tion to determine the rights and interests of the parties to this contract, and that the decree for a sale of the property and division of the proceeds was right.

Decree affirmed, with costs.

The other Justices concurred.

POWERS 2. DAILY.

LANDLORD AND TENANT-ACTION FOR RENT-RECOUPMENT-INJURY TO BUSINESS.

A lessee who has sold the business which he conducted upon the leased premises, under a contract providing that a certain portion of the profits should be paid to him to apply upon the purchase price, has no such interest in the business