tions of these articles of agreement, and the said plans, specifications and drawings, then the said party of the first part shall pay to the said party of the second part, and forfeit out of the moneys which shall otherwise be due to him by virtue of this agreement, as and for liquidated and ascertained damages for such default, and not as a penalty, the sum of ten dollars per day for each and every day thereafter that the said work remains incomplete and unfinished, provided only that if such delay is caused by any strike among the workmen or other causes, equally beyond the control of said first party, then such forfeiture is not to be given, and provided also that in case the said party of the first part shall be prevented by any strike among the workmen from complying with this agreement, the said White & Hussey may extend the time for the completion of the work for such reasonable period as they may think proper, under the circumstances and certify in writing to be necessary. And provided also that if the said party of the first part shall be required to suspend work on account of frost or inclement weather, upon receiving a notice in writing to that effect from the architects, the time during which the work shall be so suspended shall be deemed an event beyond the control of the said party of the first part.'

Upon this branch of the case, the learned circuit judge charged the jury as follows:

"It is undisputed that the defendant went into possession of the building September 4th, and claims damages of ten dollars per day between August 1st and September 4th. Is that the extent to which you claim?

"Mr. Hawley: Yes.

"The Court: I charge you, gentlemen, after August 15th, the plaintiff would have a reasonable time in which to get the glass and the sash as required by the architect. On July 27th, he notified the architect, and the defendant in this case relied in part upon the order of the architect to the plaintiff to proceed to make these repairs or make these changes as provided by the contract, and after August 15th the plaintiff would have a reasonable time in which to get the glass; this will practically do away with the claims for liquidated damages, because he could not proceed to get it as he made his demand on July 27th, and was not notified of it until August 15th, after which he would have a reasonable time. It is for you, however, to

say just what a reasonable time would be, if from August 15th to September 4th, is more than a reasonable time for him to get these things, then the claim of the defendant for ten dollars a day for such time as the building could not be occupied by them would be good. Had the architect during the month of July ordered these changes another question would have been presented. The plaintiff was not responsible for the neglect of the architect to order the required changes, and consequently he cannot be held liable in damages for the same.'

The defendant claimed the sum of $280.00 for 28 secular days' delay, from August 1st to September 4th. The provision of the contract was a valid one. Whiting v. Village of New Baltimore, 127 Mich. 66 (86 N. W. 403); Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78); Wilson v. Godkin, 136 Mich. 106 (98 N. W. 985).

The jury should have been instructed that this sum was properly chargeable against plaintiff, unless they found the delay to have been the result of one or other of the causes enumerated in section 25 of the contract, as proper excuse for delay.

It was plaintiff's claim that defective glass was not seasonably inspected and condemned by the architects. This claim is not tenable. It was his duty to furnish glass according to the contract, and he cannot excuse his delay in doing so by showing that defendant's architects failed to condemn it in time to permit him to replace it within the time limited by his contract.

BLAIR, C. J., and GRANT, MONTGOMERY, and McALVAY, JJ., concurred.

CAMP v. CAMP.

1. JUDGMENTS-RES ADJUDICATA-DIVORCE.

On a petition for a modification of a decree of divorce entered upon the default of the husband, and granted upon the ground of extreme cruelty, the parties are concluded as to other alleged misconduct of the defendant and as to the defenses which might have defeated the bill.

2. DIVORCE-COMPROMISE-CONTRACTS-ALIMONY-FRaud. A settlement of property rights made by the parties prior to the divorce, is not binding on the court upon a petition to modify the decree as to alimony, where it was shown that the complainant procured the compromise by false representations.

3. SAME AMENDMENT AND REVISION-PERMANENT ALIMONY HUSBAND AND WIFE.

The court in chancery has jurisdiction at any time to open and alter the provisions in a decree of divorce relating to the alimony to be paid, and that notwithstanding the parties consented to the order.

4. SAME-ALIMONY-AMOUNT.

An award of $50 a month, in addition to a cash payment of $1,000, for the care and maintenance of one of the two chil dren of complainant, where the financial condition of the defendant had materially changed for the worse, is unreasonable, and the allowance should be reduced to $30 a month.

Appeal from Kent; Perkins, J. Submitted June 16, 1909. (Docket No. 118.) Decided September 21, 1909.

Bill by Jessie May Camp against Talcott H. Camp for a divorce: On petition of defendant for a modification of the decree respecting alimony. From an order dismissing the petition, petitioner appeals. Reversed, and decree modified.

McKnight & McAllister, for complainant.
Dunham & Phelps, for defendant.

GRANT, J. Complainant and defendant were married April 24, 1899, and lived together as husband and wife until in August, 1907. On September 18, 1907, she filed her bill, seeking a divorce on the ground of extreme cruelty. He did not appear to defend the suit, and an order. pro confesso was entered. Proofs were taken in open court, and a decree entered in her favor on November 25, 1907.

They had two children, a girl named Emily, seven years old, and a boy named Talcott, three years old. By the decree the custody of the daughter was committed to the defendant, and the custody of the boy to the mother. Before the case was heard the parties made a settlement of their property rights, by which he gave her $1,000 in cash and certain personal property, and agreed to pay $50 per month for the support and maintenance of the boy until he attained his majority. It was further provided in the decree that the mother would have the right to have in her custody and control, not exceeding three months during any one year, the daughter, and the right to visit her at all other reasonable times, and that the father should have the right to the custody and control of the son in like manner for the same time, and the right to visit him at all other reasonable times. This agreement was incorporated in the decree, as the defendant now claims, without his knowledge.

Eight days after the decree was rendered complainant went to Chicago, and was there married to a man named Preble. Defendant married again on February 8, 1908. He was a traveling man, selling furniture upon commission. He paid the allowance for the care of the son until March 1, 1908. On May 18, 1908, he filed this petition asking for a modification of the decree of the allowance for the care of the son.

In this petition he details at length their married life; and, if the allegations he there makes are true, she was not entitled to a divorce, and he should have contested the case. She filed a long answer to the petition, charg

ing him with gross and vile misconduct in disregard of his marital relations, of which she makes no claim that she was not informed at the time she filed her bill. To her answer the defendant filed an answer, denying in detail all the charges made by her. If her allegations of misconduct are true, the defendant was an unfit person to have charge and control of his daughter, and no mother with a proper regard for her daughter would have consented to commit to such a man her care, custody, and education. All these charges and counter charges, however, were settled in the divorce suit, and cannot be reconsidered and retried in this petition. Smith v. Smith. 139 Mich. 133 (102 N. W. 631).

He now charges that the settlement agreement was obtained by fraud and misrepresentations on her part. The chief charge of fraud is that she falsely represented that she would be compelled to go to work to obtain money for her support and that of her boy; that she had made arrangements to do so, and would be compelled to employ a nurse to take care of him, whereas in fact she was then engaged to be married as soon as the divorce was obtained, and, prior to the granting of the decree, had moved many of her household goods to the house of her prospective husband.

The statute (3 Comp. Laws, § 8641) authorizes courts of chancery to at any time, on the petition of either party, revise and alter the decree as to alimony or allowance for the support of minor children. The learned circuit judge held that the only remedy of the defendant was by a direct proceeding to set aside the contract of settlement. In this we think he was in error. It is immaterial whether the decree for alimony and the support of children is incorporated in the decree by the consent of the parties, or by a determination of the court. When once incorporated in the decree the court obtains jurisdiction to revise it at any time thereafter. The sole question, therefore, is whether the defendant by his petition and evidence has made a case entitling him to any modification.