ambiguous provisions were embodied in the contract for a manifest reason, under circumstances indicating that the contracting parties recognized and regarded them as essential. While as a general rule time is not of the essence of a contract to pay money though the time of payment be fixed, and is not necessarily made such by even so declaring it, yet where circumstances give occasion for it and the stipulation is reasonable, the contracting parties may, by clear terms, stipulate to make it so. Richmond v. Robinson, 12 Mich. 193.

"If time is of the essence, a performance after the time fixed does not bind the other party unless he waives the breach, and thereby, in effect, makes a new contract taking the place of the old one." Clarke on Contracts [2d Ed.], § 233.

While during an interval subsequent to plaintiffs' default conversations were often had involving demands for payment and negotiations for an adjustment, defendant consistently refused to recognize the contract defaulted as in force according to its strict terms, but, willing, and apparently anxious, to reach an agreement in the spirit of their original dealing, he repeatedly proposed a consummation of the matter agreeable to the terms of the old contract, but always with the modification that the additional expense plaintiffs' default had caused be added to the price, in effect making a new contract, "taking the place of the old one."

It is urged that the additional expense was incident to the Roos-Berkey contract; that there were no contract relations between plaintiffs and Roos, or Connell, and plaintiffs are not concerned with expenses defendant incurred with the latter by reason of his default. This entirely overlooks the relations of both contracts to the same property and the strict provisions of plaintiffs' contract as to time and terms of payment, understandingly made under known condi

tions, to correspond in date and amount with the other. Those necessary expenses in relation to this property were manifestly suffered by defendant by reason of plaintiffs' default.

"Nothing short of an offer of everything that the creditor is entitled to receive is sufficient, and a debtor must at his peril tender the entire sum due, including all necessary expenses incurred or damages suffered by the creditor by reason of the default of the debtor." 38 Cyc. p. 137.

A party seeking relief against a forfeiture should tender sufficient to make the other party whole. Stickney v. Parmenter, 35 Mich. 237.

The general rule is well stated by Judge Sanborn in National Surety Co. v. Long, 125 Fed. 887, 60 C. C. A. 623, citing many authorities:

"He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform."

In the instant case it is undisputed that plaintiffs first committed a substantial breach of the contract sued upon, recognized by the contracting parties in express terms as of such importance that, if committed, the opposite party should be free to at once sell the property contracted for without liability for damages, and plaintiffs be debarred from all remedies and actions. Following such breach, the only thing of legal significance claimed to have been done to heal it is a doubtful waiver of tender over a telephone in answer to an inquiry of plaintiffs' agent if defendant would accept the amount computed due by the strict terms of the contract, irrespective of any costs or damages resulting to defendant by reason of such breach. Following this plaintiffs rested on their claimed rights so established, and did nothing further towards performance.

We conclude, for the reasons stated, that under the

undisputed facts shown plaintiffs are precluded by the terms of this contract, which they first breached, from maintaining this action, and a verdict should have been directed in favor of defendant.

The judgment is reversed, and no granted.

new trial

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

PEOPLE v. ROGULSKI.

1. CRIMINAL LAW-TRIAL INSTRUCTIONS-PRESUMPTION OF INNOCENCE.

In a prosecution for murder, the respondent is presumed to be innocent until the presumption is overcome by testimony which establishes his guilt beyond a reasonable doubt, and it is the duty of the trial court to so instruct the jury, in substance, or in exact words, if the respondent so requests.

Where the trial court directed a verdict for respondent, on the questions of murder and voluntary manslaughter, leaving to them the question of involuntary manslaughter, assault and battery or assault, under the information, and he instructed the jury that there was no presumption that respondent committed manslaughter unless the crime was proved, and the burden of proof was on the prosecution to show, beyond a reasonable doubt, that the respondent was guilty, and that defendant was entitled to every reasonable doubt, cautioning the jury at length as to this phase of the case, the court did not commit error, in the absence of a request for more specific instructions as to the presumption of innocence.

181 Mich.-31.

3. SAME HOMICIDE-INVOLUNTARY MANSLAUGHTER.

Respondent

was charged with murder. The evidence showed that he killed the victim, a young man who was hunting and trespassing on a farm; that respondent had been offered a sum of money for every gun which he should bring in, by an employee of the owner of the premises; that he attempted to take the gun from deceIdent who tried to recover it and was shot, some of the testimony tending to prove that respondent purposely fired the weapon. The court did not submit the murder charge to the jury, or permit them to find that respondent was guilty of voluntary manslaughter, but charged the jury that they might find him guilty of involuntary manslaughter or the lesser offenses included in such charge. Held, that no error was committed in charging that he had no legal right to take the gun from the boys, and if he was in the act of taking the gun from the boys when he shot decedent, even accidentally, he was guilty of involuntary manslaughter.

If the jury found that respondent obtained possession of the gun either by a ruse or by violence, with the wrongful intention to permanently deprive the owner of it and convert it to his own use or deliver it to another for a reward, his act amounted to larceny, if not robbery. If he intentionally but without malice aimed or pointed the gun at decedent, designing no mischief, and by its discharge death resulted, he was guilty of a careless use of firearms in violation of statute and the offense was manslaughter. 3 Comp. Laws, § 11511 (5 How. Stat. [2d Ed.] 14560). Also, negligence in the use of firearms may, at common law, render the possessor liable to a charge of manslaughter.

5. SAME INFORMATION.

Under the short form of information for murder, a conviction for involuntary manslaughter was not unauthorized.

Error to Wayne; Van Zile, J. Submitted April 23, 1914. (Docket No. 170.) Decided July 24, 1914.

Stephen Rogulski was convicted of manslaughter. Affirmed.

Hugh Shepherd, Prosecuting Attorney, George A. Kelly, Assistant Prosecuting Attorney, Grant Fellows, Attorney General, and Samuel D. Pepper, Assistant Attorney General, for the people.

Thomas J. Mahon and Thomas W. Thompson, for respondent.

STEERE, J. Respondent was convicted of the crime of manslaughter in the circuit court of Wayne county, on February 18, 1913, under an information for murder which, in simple form under section 11912, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 15083), charged in one count that:

Respondent "on the 29th day of December, in A. D. 1912, at said township of Dearborn in said county, feloniously, wilfully, and of his malice aforethought, did kill and murder one Walter Dahlman, contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Michigan.'

The errors assigned in respondent's bill of exceptions and relied upon relate entirely to the charge of the court. They are stated by his counsel in their brief as follows:

"It is contended that the court committed grievous error in failing to charge that respondent was entitled to the presumption of innocence; that the court erred in permitting the jury to find the respondent guilty if death ensued as a result of the careless use of firearms; and in permitting the jury to find that respondent in 'the keeping of the gun and the carrying of it' would be guilty of an unlawful act such as would make him guilty of manslaughter in an accidental discharge of the gun."

It is undisputed that Dahlman was killed, at the time and place alleged, by a shot fired from a gun held in respondent's hands. It was claimed on the part of the defense that the shooting was unintentional, in which view the prosecution and court apparently