tice to circuit court where judgment was rendered for defendant and costs given to plaintiff. Defendant brings error. Reversed; costs granted to defendant. Elmer N. Peters, for appellant. R. L. Sowers, for appellee. BROOKE, C. J. This case was brought in justice's court. The action was assumpsit. Defendants pleaded the general issue, and gave notice of special defenses based upon the statute of limitations and the infancy of two of the defendants. Upon the trial in justice's court the jury disagreed. A second trial was commenced before another jury. During the examination of the first witness, the attorney for defendants moved that the case be certified to the circuit court, for the reason that upon plaintiff's own showing the question of title to lands was in issue. This motion was granted by the justice. The case having reached the circuit court, it was there tried, and a verdict and judgment in favor of defendant was had. This judgment carried costs to defendant. A motion was then made by plaintiff to amend the judgment so as to award costs to plaintiff. Defendant now reviews by writ of error the order granting said motion. In the course of his opinion the learned circuit judge said: "The title to lands did not come in question on the trial and I now here so certify." It is made clear, I think, by a reading of the various sections of the statute (1 Comp. Laws, §§ 782-789; 5 How. Stat. [2d Ed.] §§ 12235-12242), that section 787 is complete in itself, and that the court was in error in refusing defendant costs. The statute is imperative, and the case made by defendant is clearly within its terms. The other class of cases, to which section 789 applies, are certified to the circuit court upon the demand of the defendant, without judicial determination that the title to lands appears or seems to be in question. If section 787 had been printed after, instead of before, section 789, it is probable that no question of the application of section 787 to the facts presented would have been raised. Whether counsel for defendant called attention to the fact, or whether the justice discovered without aid, that from plaintiff's own showing the title to land was in question is not important. The determination was one to be made by the justice, and, whether he was right or wrong, costs followed the judgment in the circuit court. The original judgment should be reinstated. MCALVAY, KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred. NEWTON v. CONSOLIDATED CONSTRUCTION CO. 1. DAMAGES-BUILDING CONTRACTS-BREACH. Where a portion of a building which defendant has contracted to construct is left undone, the measure of damages for failure to carry out the contract is the increased cost of completion; if the building is left uncompleted it is not material that its value for purposes of sale is not lessened because of the work being left incomplete; the owner is generally entitled to damages for the necessary expense to which he would be put to have the work done, and it is not necessary in order to recover that plaintiff should have actually completed the building. 2. SAME-EVIDENCE-INTENT. Testimony of the owner tending to show that he intended at some future time to construct or complete the building was immaterial but did not amount to reversible error, in an action for a breach of the building or construction contract. 3. SAME-EVIDENCE-HEARSAY. It was erroneous to admit in the evidence a notice from the building department of the municipality, as tending to prove the condition of the incomplete structure, but the error was not prejudicial where competent testimony covered the same subject and was substantially undisputed. 4. SAME-VALUE-OPINION TESTIMONY. Testimony, also, of a witness as to the value of the house and lot with the structure completed thereon according to specifications was not prejudicial to defendants, although he was not familiar with the cost of construction of the house and only knew about what contractors would ask for it and would agree to build it for. 5. TRIAL-CHARGE-JURY TRIAL. 3 Comp. Laws, §§ 10243, 10246 (4 How. Stat. [2d Ed.] §§ 11837, 11840), providing that the circuit judge in charging the jury shall give his instructions in writing and read them to the jury and forbidding any oral qualification, is modified and is no longer in effect, by reason of the provisions of section 414, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 11926), providing for the appointment of stenographers. 6. SAME TRIAL APPEAL AND ERROR-INSTRUCTIONS TO JURY. While it may be improper practice, in charging the jury, to state that the plaintiff or defendant requests the court to charge and to qualify and amend the requests, with or without argument, so that their effect is weakened or lost, it cannot be held that such action on the part of the trial court is prejudicial error, if the court states the rules of law which are applicable and covers the requests in such a way that the jury could not have been misled. Error to Wayne; Hosmer, J. Submitted November 4, 1914. (Docket No. 135.) Decided January 4, 1915. Assumpsit by George Newton and another against the Consolidated Construction Company and Illinois Surety Company upon a surety bond securing the performance of a construction contract. Judgment for plaintiffs. Defendant Illinois Surety Company brings error. Affirmed. Cullen, Casgrain & Wurzer, for appellant. The testimony tended to prove, among other things, that by written contract dated October 28, 1912, it was agreed that defendant Consolidated Construction Company, a Michigan corporation, should, between that date and the 31st of January, 1913, erect and complete for the plaintiffs a two-story frame building on premises described in the contract, according to plans and specifications, in a good, sufficient, and workmanlike manner, for the sum of $2,542, which sum the plaintiffs agreed to pay $500 when the building was ready for the first floor joists, $500 when the roof was on, $500 when it was lathed and plastered, $500 when the interior finish was on, and $542 when the building was completed. The defendant Illinois Surety Company thereafter, and on November 8, 1912, joined with the Consolidated Construction Company in an undertaking to pay the plaintiffs $2,542. Said undertaking, referring to the said building contract, is conditioned that if the principal, the Consolidated Construction Company, "shall well, truly, and faithfully comply with all the terms, covenants, and conditions of said contract on their part to be kept and performed according to its tenor (except as hereinafter provided), then this obligation to be null and void; otherwise to be and remain in full force and virtue in law." It was provided in said last-mentioned undertaking, as conditions precedent to any right to recover thereon, among other things, that in the event of the 184 Mich.-5. happening of any default by the principal the surety should have the right and privilege to assume the performance of the contract and to sublet or complete it, whichever it might elect to do, and, upon electing to assume performance, it should be subrogated to all the rights and properties of the principal arising out of the contract and to all moneys and properties at that time due and payable, including deferred payments, and to all payments thereafter becoming due and payable to the principal under and by virtue of the contract; that any suit or proceedings in equity to recover any claim against the surety must be commenced within six months after the first breach of the contract referred to herein; that "this bond shall not cover loss resulting from acts of God, war, riots, fire, the elements, or labor difficulties called strikes, nor reconstruction or repair made necessary by reason of any such causes." The contracting company, the principal in this bond, entered upon the performance of its contract to erect the building, beginning work October 29, 1912, and proceeding therewith to some extent until about January 7, 1913. In a notice which, pursuant to the bond above referred to, plaintiff thereafter gave, the conditions of the building January 7, 1913, were stated to be: "The basement is completed, outside of a few minor details; also the skeleton up and roof boards partly on." The construction company offered testimony tending to prove that, in addition, the cellar windows were in position, the first floor joists were in, and the first or rough flooring laid thereon; that the contractor had also erected a temporary frame tool and supply Ished on the lot and had caused to be delivered there by one C. W. Kotcher some lumber to be used and incorporated in the structure. February 17, 1913, |