10576; St. Clair v. Cox, 106 U. S. 350 (1 Sup. Ct. 354); Davidson v. Fox, 120 Mich. 386 (79 N. W. 1106).

Second. It was said in Roelofson v. Hatch, 3 Mich. 277:

"There may be cases of contracts not within this remedy, as for example a breach of promise to marry, where the damages rest so entirely in opinion that it would be a solecism to say the amount of indebtedness could be sworn to. But, again, there are many contracts where, although the damages are not liquidated in the contract, yet by wellestablished rules of law they are capable of being ascertained definitely upon proof of the facts, and to hold that in all this class of cases the plaintiff is debarred of this remedy would be to defeat in a great measure the purposes sought to be secured by its enactment. The plaintiff is required to swear that the defendant is indebted to him upon contract, express or implied, and to state the amount of such indebtedness, as near as may be, over and above all set-offs. What is an indebtedness? It is the owing of a sum of money upon a contract or agreement, and, in the common understanding of mankind, it is not less an indebtedness that such sum is uncertain. The result of a contrary doctrine would be to hold any liability which could only be the subject of a general indebitatus assumpsit, quantum meruit, or quantum valebant count in a declaration, such an indebtedness as could not be the subject of this remedy by attachment. Without fully deciding this point, which is not necessarily raised in this case, we see no reason why a demand arising ex contractu, the amount of which is susceptible of ascertainment by some standard referable to the contract itself, sufficiently certain to enable the plaintiff, by affidavit, to aver it 'as near as may be,' or a jury to find it, may not be a foundation of a proceeding by attachment. See Fisher v. Consequa, 2 Wash. C. C. 382 (Fed. Cas. No. 4,816); Clark's Ex'rs v. Wilson, 3 Wash. C. C. 560 (Fed. Cas. No. 2,841)."

We are unable to find that this question has since been presented to this court. We hold, however, that the views of the court stated arguendo in the Roelofson Case correctly state the law, and justify the ruling of the circuit court. The amount of the damages in this case,

while unliquidated, is susceptible of ascertainment by a standard referable to the contract. The standard established by the contract was that specified machines sold for a specified price should be free from inherent and mechanical defects. The declaration alleges that the machines were not free from, but possessed, such defects, that they were sold at a profit, but on account of the defects were returned, were repaired, and resold at a reduced price. While some of the damages claimed in the declaration were probably too indefinite and speculative to admit of the remedy by attachment, in the main, the damages claimed were susceptible of definite ascertainment by testimony. Baumgardner v. Manufacturing Co., 50 Minn. 381 (52 N. W. 964); Lawton v. Kiel, 51 Barb. (N. Y.) 30; Weaver v. Puryear, 11 Ala. 941; New Haven Steam Saw-Mill Co. v. Fowler, 28 Conn. 103; Hyman v. Newell, 7 Colo. App. 78 (42 Pac. 1016). We are also of the opinion that, under the showing made in this case, the plaintiff was entitled to maintain his suit as assignee. McBride v. Farmers' Bank, 26 N. Y. 450; Hadden v. Dooley, 92 Fed. 274 (34 C. C. A. 338); Felt v. Evaporating Co., 52 Mich. 602 (18 N. W. 378); Henderson v. Railway Co., 131 Mich. 438 (91 N. W. 630).

The orders of the circuit court are affirmed, and the writ dismissed, with costs to plaintiff.

MONTGOMERY, OSTRANDER, HOOKER, and BROOKE, JJ., concurred.

MILLER v. PETER.1

1. JUDGMENT

SURETY.

MORTGAGES RES ADJUDICATA

PRINCIPAL AND

On a bill to redeem from a deed, given without consideration to the grantor, to secure an indebtedness of a firm which had executed a mortgage on other property to secure the indebtedness, a decree foreclosing the debtors' mortgage, in proceedings to which the surety was a party, is conclusive on the question of the right to a credit for taxes averred to be invalid, which had been paid by the mortgagee, and which were credited to the mortgagee by the foreclosure decree.

2. SAME DEFENSES CONCLUDED - PRINCIPAL AND SURETY — RELEASING SECURITIES.

Releases given prior to the decree of foreclosure to one of the debtors, releasing lands on which he had given a mortgage to secure the same indebtedness could not be treated as payments for the benefit of the surety, on a suit to redeem, where the defense was necessarily involved in the foreclosure proceeding, and no fraud was alleged and no attempt made to set aside the decree during a lapse of many years.

3. MORTGAGES - DEED AS SECURITY REDEMPTION

EVIDENCE

BURDEN OF PROOF. Evidence that the deed given by the surety to the creditor was without additional consideration besides the original debt, that it was not received as payment of the indebtedness when delivered, and that no credit was subsequently given as payment, either by the parties or in the decree of foreclosure, sustains the burden of proof imposed on a complainant, who tries to redeem from a deed executed to take effect as a mortgage.

A deed is presumed to have been delivered at the date of its acknowledgment.

5. EQUITY-LACHES-BILL TO REDEEM.

Redemption from a deed given to secure a debt is not precluded by complainant's laches, where it was executed in

1 Rehearing denied December 31, 1909.

1888 and suit to redeem instituted in 1906, upon proof that in 1896 the husband of the grantor attempted, as her agent, to have the creditor treat the deed as a payment, and a satisfaction of the judgment was filed, without any authority from the grantor, although it is held that matters determined by the decree of foreclosure rendered in 1892 could not be reviewed collaterally after the death of some of the parties and the lapse of many years.

6. MORTGAGES-POSSESSION BY MORTGAGEE-COMPENSATION. The mortgagee is chargeable, on accounting, with the rental value of property of which he has had possession.

Appeal from St. Clair; Law, J. Submitted April 29, 1909. (Docket No. 11.) Decided October 4, 1909.

Bill by Anna P. Miller against Roxanna Peter, Alvin Peter, and William A. Young, administrators of the estate of William Peter, deceased, to have a deed absolute upon its face declared to be a mortgage, for permission to redeem therefrom, and for an accounting. From a decree dismissing the bill, complainant appeals. Reversed, and remanded.

James Van Kleeck (George P. Cobb, of counsel), for complainant.

James E. Duffy, for defendants.

MONTGOMERY, J. On the 5th of June, 1888, Albert Miller and George Lewis, composing the firm of Miller & Lewis, being indebted to William Peter in the sum of $29,000, gave notes aggregating that amount and bearing interest at 8 per cent., secured by mortgage upon property in Bay and Arenac counties owned by Miller & Lewis. As a further security George Lewis and his wife executed a mortgage upon property owned by Lewis situated in the county of Bay, reciting a consideration of $10,000; the condition being that the mortgagors should pay, or cause to be paid, $29,000, according to the terms of the real estate mortgage executed by Miller & Lewis. On the same

158 MICH.-22.

of the

day Albert Miller and wife gave a like mortgage covering certain property owned by Albert Miller, and Jennie R. Miller, wife of Albert Miller, gave a mortgage on her individual property in the county of St. Clair, which, for a stated consideration of $10,000, covered the N. E. S. W., the S. E. of the N. W. 1, the S. W. of the N. E., and the N. E. of the N. E. 4, section 3, in township 2 N., range 16 E. The condition of this mortgage was that if the parties of the first part should pay, or cause to be paid, the sum of $29,000 according to the terms of the real estate mortgage executed by Miller & Lewis, the mortgage should be void, etc. Jennie R. Miller departed this life on the 15th of May, 1904, in-. testate. She left four children, who united in conveying the property covered by the last-named mortgage to the complainant in this case.

On the 19th of December, 1892, Jennie R. Miller executed an instrument which was in the form of a warranty deed running to William Peter for a recited consideration of $4,000, covering the property named in the mortgage given by her to Peter. The property conveyed was eleven-twelfths of the land described. Both the bill and answer, however, treat this as a conveyance of the entire property. The bill in this case is filed to have this deed of December 19, 1892, declared to be a mortgage and to redeem. The bill avers that payments have been made from time to time upon this $29,000 mortgage, and that releases had been made of property held by Lewis, who was primarily liable for the debt, under such circumstances as would release Jennie R. Miller, who had pledged her property as security simply, without any consideration.

On the 4th of December, 1891, William Peter filed a bill to foreclose the $29,000 mortgage, making all the interested parties, including Jennie R. Miller, parties defendant. On the 22d of August, 1889, he had released to Lewis a part of the property covered by the mortgage given by him. On the 3d of June, 1890, he made a further release of property covered by the Lewis mortgage. The