"March 3, 1911.

"In order to assist you, we will allow you $2,000 on the first $20,000 worth of goods you sell and 5 per cent. for all sold thereafter. This will give you a chance to make good. In other words, we will allow you 10 per cent. commission on all goods until you reach the $20,000 mark.

*

"March 31, 1911. "You are now very heavily indebted to us, and, as we do not think you can possibly make up, would be advisable for you to return photographs.'

"April 3, 1911. "Therefore kindly return our photographs, as you are now very heavily indebted to us."

Considerable importance is placed by the plaintiff upon a certain letter which he received from the defendant agreeing to pay him $25 per week for his services while he worked under the temporary agreement in the fall of 1910. This letter was introduced in evidence, and the plaintiff testified that the agreement in December was that he should continue at the same salary for the year 1911. This oral testimony, together with the contents of the letter, makes out a contract, but does not make out such a contract in writing as will satisfy the statute. The letters under date of November 14th and November 29th clearly indicate that a new agreement was to be made for the year 1911, and the plaintiff testified that on or about December 15th a new agreement was made; but the new agreement is partly in writing and partly in parol. Looking only at the correspondence, one is left in serious doubt as to how long the service is to continue, and what salary is to be paid. These are important elements in the contract, and they must not rest in parol. It is true there are some expressions used in the letters from which an inference might be drawn that a year was contemplated, and there are also some remittances to plaintiff spoken of in the letters which might carry an inference that he was to receive $25 per week; but the letters also con

tain statements indicating that there was no fixed time and no fixed salary agreed upon.

If we are to give this section of the statute the construction which it ought to have in order to make it effective, and which it has heretofore received from this court, we must hold that the contract set up and relied upon was within the statute and therefore void. Gault v. Stormont, 51 Mich. 636 (17 N. W. 214); Webster v. Brown, 67 Mich. 328 (34 N. W. 676); Baumann v. Lumber Co., 94 Mich. 363 (53 N. W. 1113); McCaskey Register Co. v. Truettner, 149 Mich. 241 (112 N. W. 909).

2. Should the case have been submitted under the common counts?

The plaintiff argues, and rightly so, that if he rendered services for defendant under a void contract, and he has not been compensated therefor, he may recover the value of them under the common counts. Fuller v. Rice, 52 Mich. 435 (18 N. W. 204). But that is not quite the question. The trial court did not deny plaintiff this right. What he held was that plaintiff's declaration did not include the common counts. Plaintiff's declaration originally was upon the common counts. He afterwards obtained leave to amend his declaration. He did not do so by adding a special count to his declaration on the common counts, but instead substituted his special count for the common counts. When an order is obtained granting leave to amend a declaration, the amendment in order to be effective must be actually made. Ballou v. Hill, 23 Mich. 60; Harris v. Thomas, 140 Mich. 462 (103 N. W. 863).

Plaintiff complied with this rule and made the amendment, and filed his declaration with only the special count, making no mention therein of the common counts. Therefore we must conclude that the common counts were no part of the amended declaration. It is unfortunate that a new suit should be

necessary to dispose of this matter, when by a second amendment the common counts could have been added to the special count, and the entire claim of plaintiff disposed of in this case; but, inasmuch as no application was made to the trial court to have this done, there is no alternative for us but to hold that the trial court was right in making the disposition of it which he did.

The judgment will be affirmed.

MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, MOORE, and STEERE, JJ., concurred.

GOURLAY v. INSURANCE CO. OF NORTH AMERICA.

INSURANCE BREACH OF CONDITIONS TRANSFER OF INTEREST VENDOR AND PURCHASER.

After breach of a contract for the purchase of real and personal property covered by insurance, and after the vendee had assigned his interest in the policy to the vendor, canceling the land contract and assigning all interest in the policy to him, the defendant insurance corporation, which had notice of the transaction, is held, by an equally divided court, to be liable on the policy upon which it had indorsed a clause stipulating that the vendee held the property under contract, and the loss, if any, should be payable to plaintiffs and vendee as their interests might appear. MCALVAY, C. J., and STONE, OSTRANDER, and STEERE, JJ., dissenting, on the ground that a material change of interest had occurred, avoiding the policy.

Certiorari to Eaton; Smith, J. Submitted Novem

ber 19, 1913. (Docket No. 156.) Decided July 24, 1914. Rehearing denied December 19, 1914.

Assumpsit by Joseph G. Gourlay and Mary L. Gourlay against the Insurance Company of North America upon a contract of insurance. An order overruling a demurrer to plaintiffs' declaration is reviewed by the defendant on writ of certiorari. Affirmed.

Cummins & Nichols, for plaintiffs.

Henry C. Walters (Arthur P. Hicks, of counsel), for defendant.

MOORE, J. The following statement of facts is made by the attorney for defendant:

"The defendant asks for a review by certiorari of an order overruling a demurrer to the plaintiffs' declaration made by the circuit court for the county of Eaton. The declaration alleges: That the policy in question was issued on certain farm buildings and personal property (the contents of said buildings) to one M. S. Harkness, on April 20, 1911. That subsequently, on October 21, 1911, with the consent and approval of defendant, the land and appurtenances were deeded to plaintiffs, and that afterwards M. S. Harkness and wife repurchased the land and appurtenances on land contract. That at about the time of the foregoing transfers the following indorsement was made on the policy in suit: 'It is understood and agreed that M. S. Harkness holds this property under contract of purchase, loss, if any, payable to Joseph G. Gourlay and Mary L. Gourlay, and M. S. Harkness as their respective interests may appear.' That on May 25, 1912, all the interest of Mrs. Harkness was set over to M. S. Harkness. That afterwards M. S. Harkness defaulted in the land contract, and it became forfeited by its terms, whereupon M. S. Harkness, on August 13, 1912, submitted to a cancellation of the land contract, deeded the premises constituting the real property, which is the subject of insurance, to the plaintiffs, at the same time giving to the plain

tiffs a bill of sale of the personal property, so that after August 13, 1912, neither M. S. Harkness nor his wife had any interest in the subject of insurance. The declaration alleges notice to the defendant of these transfers, but it does not allege consent thereto.

"The plaintiffs further allege that on August 31, 1912, 'the said M. S. Harkness did assign to the plaintiffs all his interest in said policy as vendee in said land contract, or as owner of the property covered by said policy of insurance, subject to the consent of the defendant herein.' The declaration does not allege that the defendant ever consented to this alleged assignment to the plaintiffs by M. S. Harkness. It merely says: 'All of which said defendant had notice.'

"The plaintiffs allege that the property was burned 'on the night of the 31st of August, 1912,' causing a loss of $1,694.00 of which the defendant was notified on October 31, 1912, and March 6, 1913.

"The defendant demurred to the declaration, and the circuit court overruled the demurrer.

"Error is assigned in the affidavit for the writ of certiorari, on the action of the circuit judge in overruling each of the several grounds of demurrer."

Counsel say:

"The following questions are raised by the demurrer and the assignments of error:

"(1) The plaintiffs, under the allegations of the declaration, are not entitled to maintain this suit.

"(2) The declaration shows, on its face, such a change of title, ownership, and possession of the subject of insurance, without the consent of the defendant, as avoids the policy.

"(3) The declaration does not allege consent of the defendant to change in the title, possession, and ownership of the subject of insurance.

"(4) The policy of insurance sued upon constitutes an entire contract covering personal property and real estate, and the change in the title, ownership, and possession of the personal property, without the consent of the defendant, invalidated the policy.

"(5) The declaration does not allege notice to the defendant, prior to loss, of change in title, ownership, and possession of the property which was the subject of insurance."