action, and were permissible, under the general statute of amendments, in so far as they were within our construction of the notice given. The court, in granting these amendments to the declaration, recognized the fact that it might be a matter of surprise to defendant, and ordered a continuance for two weeks.

Error is assigned upon the refusal of the court to charge, as requested by defendant, that, from the undisputed facts in the case, plaintiff was guilty of contributory negligence. We think that the question of contributory negligence of plaintiff was a disputed question of fact to be determined by the jury.

After the close of defendant's case, a physician was sworn in rebuttal on the part of plaintiff. He was examined at great length, both on direct and cross-examination; such examination covering many pages of the record. Part of this was over the objection and exception of defendant; but it was all admitted and allowed to stand. Briefly stated, it appears, from the examination of this witness, his testimony tended to show that there were former adhesions existing at the time of the injury claimed, and that the fall tore them apart. During the colloquy between counsel and the court, while this witness was testifying, the court said that he would finally rule upon the objections made by defendant in his charge to the jury, and at the time counsel for defendant said to the court:

"We want to know, by the ruling of the court, upon what theory the testimony is to be admitted, upon which branch."

The court charged the jury that plaintiff, having made no claim for damages on account of the aggravation of the pre-existing conditions, said:

"Therefore, if you find from the proofs that the ovary and bowels were in fact diseased before the accident, and the accident itself augmented, aggravated, or made their diseased condition worse, then there can be no recovery on account of these injuries, even though you should find

that they resulted from the fall on the defective sidewalk, as plaintiff claims❞—

And further charged that if the jury found that plaintiff's internal organs had recovered from the effects of prior disease and operation, and were in a normal condition, so far as disease or adhesions to the bowels were concerned, and found that the fall on the sidewalk was the cause of the diseased condition of the organs, as described, then this condition and all resulting pain are traceable to the accident itself. And the court further charged:

"You will also recall that Dr. Inches' testimony to the effect that plaintiff's fall on the sidewalk may have torn loose adhesions between the organs which had formed before the accident as a result of the Toledo operation. It is my conclusion that this evidence is not competent under the pleadings. The plaintiff's theory of this case is based upon the proposition that after the Toledo operation plaintiff's ovary and bowels became normal, and whatever adhesions between the organs had formed were the direct result of the accident, and not in existence at the time of the accident. And you will confine your deliberations to the evidence that may tend to show this theory."

Special questions were submitted to the jury, two of which were as follows: "Were the adhesions existing when plaintiff fell?" and "Were the adhesions torn loose by the fall?" Each was answered in the negative.

Upon the charge of the court to the jury, above quoted, error is assigned, based upon the contention that the above questions, whether adhesions existed at the time of the fall of plaintiff or were caused by the claimed injury, having been submitted by the court to the jury, the testimony of this physician was material; and striking it out and instructing the jury to consider only plaintiff's theory was prejudicial error. In holding that the testimony of Dr. Inches was not admissible and should not be considered, and charging the jury that it should not be taken into consideration by them, practically all evidence on the part of defendant, which tended to show that ad

hesions existing before this injury were torn loose by the fall, was eliminated from the case, and the jury was charged to confine its deliberations to the evidence that might tend to prove plaintiff's theory. This is certainly inconsistent, and cannot be reconciled with the submission of the two special questions above quoted, and with that portion of the charge to the jury that there could be no recovery on the ground of injuries which aggravated or augmented an existing condition. Such holding, on the part of the court, was erroneous. This evidence, which was taken by the court from the consideration of the jury, was incompetent as a basis for damages under the amended declaration, but was competent for the purposes we have indicated.

Two physicians (Dr. Burtless of Port Huron and Dr. Angus McLean of Detroit), witnesses on the part of plaintiff, were allowed to testify relative to an operation performed on plaintiff to remove a movable coccyx. All this testimony was admitted over the objection and exception of defendant that it was incompetent under the pleadings. Both witnesses testified that the condition was not caused by the fall on the sidewalk. It was given at great length, and described the suffering attending the condition and the operation in detail. This testimony was allowed to remain in the case during the whole trial, until the charge by the court to the jury, when a brief instruction was given not to consider this testimony relative to an injured coccyx, or the operation, as an element of damage, because it was incompetent. It is the contention of the defendant that the admission of this testimony was erroneous and prejudicial; that the jury was liable to be prejudiced against defendant and increase the damages. It must have been apparent to court and counsel for plaintiff, during the taking of this testimony, that it was inadmissible under the pleadings, and that, from the statement of both witnesses, the injury to the coccyx was not caused by the fall upon the sidewalk, and that defendant's

178 MICH.-41.

objection should have been sustained, and all this testimony excluded. We do not determine that this was reversible error; but, as the judgment must be reversed for other reasons, upon a new trial all testimony upon this subject must be excluded. Other errors assigned will not require discussion.

The judgment of the circuit court is reversed, and a new trial ordered.

STEERE, C. J., and MOORE, BROOKE, STONE, and OSTRANDER, JJ., concurred. KUHN and BIRD, JJ., did not sit.

MENTLIKOWSKI v. WISNIEWSKI.

1. MISTAKE-LEASE-SPECIFIC PERFORMANCE.

Evidence tending to establish a mistake of defendants in executing a lease with option to purchase real property, examined, and held, insufficient to overcome the testimony of complainants that the option corresponded with the intent of the parties.

2. SPECIFIC PERFORMANCE

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OPTION LANDLORD AND TENANT

VENDOR AND PURCHASER. Upon exercising an option to purchase leased premises and notifying the landlord of their intention to take advantage of the proposal contained in the contract of letting, the tenants who continued in possession and paid rent were entitled to have the amount of such rental, subsequently paid, applied on the purchase price, in a suit for specific enforcement.

3. SAME EQUITY-IMPROVEMENTS.

As to permanent improvements put on the property after the tenants took possession, the landlord should receive the amount of his expenditures in addition to the purchase price; but should not be allowed for improvements necessary to put the premises in habitable condition.

Appeal from Wayne; Donovan, J. Submitted January 30, 1913. (Docket No. 82.) Decided February 18, 1913.

Bill by Joseph Mentlikowski and others against Jacob Wisniewski and another for specific performance of an option to purchase real property. From a decree for complainants, defendants appeal. Modified and affirmed.

August Cyrowski, for complainants.

Edmund Atkinson (Frank W. Atkinson, of counsel), for defendants.

STONE, J. The bill of complaint in this cause was filed to obtain the specific performance of a contract for the conveyance of certain premises owned by the defendants by the entirety. On February 1, 1910, the defendants and appellants were the owners of the premises in question, situated at 745 Harper avenue, in the city of Detroit, and fully described in the bill of complaint. The property consists of two lots and a two-story frame house thereon, which house is used for grocery, saloon, and dwelling purposes. On the day above named, the defendants leased the premises to the complainants by a written lease at a rental of $30 per month, payable in advance, for the period of three years, from and after the 1st day of May, 1910. The lease, among other things, contains the following paragraph:

"It is also agreed that said Joseph Mentlikowski and Michilina Mentlikowski, his wife, have the privilege of purchasing said premises during the first year of this lease for the sum of forty-two hundred and fifty ($4,250.00) dollars, and after the first year, during the term of this lease, they have the privilege of purchasing the premises for the sum of forty-three hundred and fifty ($4,350.00) dollars."

On or about the 28th day of April, 1911, complainants demanded of defendants a deed of said premises, and