relied upon are such as if established would constitute a defense in the law action, and where the complainant's right will be fully protected by a successful defense; that is, where no wrong is threatened beyond the assertion of the legal demand, open as it is to such defense." 16 Cyc. p. 57.

The fraud alleged in this case relates to a contract for the sale of personal property. The relief asked is a money judgment, or, as an alternative, that the court make a new contract for the parties and decree that defendant give an unconditional bill of sale of the chattels for the money already paid. Neither courts of law or equity can make contracts for litigants. Their powers and scope of action, when called upon to adjudicate between contracting parties, are confined to interpreting contracts the parties have made, awarding money damages, cancellation, or specific performance of such contracts. Complainant was in possession of the property at the time of filing her bill, and obtained an injunction restraining interference with her possession pending this litigation. The fraud she alleged was available as a defense in proceedings against her, or in an action by her for damages. We do not think this is a case for equity jurisdiction. As was said in Teft v. Stewart, 31 Mich. 367:

"If the right contended for and carried out by the decree can be maintained, no reason is perceived why, upon the same principle, a party claiming to have been cheated in a horse trade, or in a purchase of any chattels where the amount is sufficient, may not at his election proceed to sue in chancery for damages, and preclude an investigation before a jury."

In the case at bar the evidence is in sharp conflict on many of the material questions of fact, and there is opportunity for honest argument in favor of the claims of each of the contending parties, making a case particularly adapted to, and well suited for, investigation

175 MICH.-30.

by a jury, whose peculiar and special function is to decide issues of fact with the parties and their witnesses personally present, to be seen and heard and their truthfulness investigated under circumstances most favorable for a full understanding.

The decree of the circuit court dismissing complainant's bill is affirmed, with costs, but must be construed, or modified, to be without prejudice to any proceedings at law complainant may desire to take, or to any defense she may desire to make in any proceedings which may be instituted against her by defendant. MOORE, MCALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ., concurred.

BARRY v. METZGER MOTOR CAR CO.

CONSTITUTIONAL LAW-AUTOMOBILES.

That portion of the motor vehicle law providing for an absolute liability of the owner for negligence of any person driving the car except in case of theft, is unconstitutional, being a deprivation of property without due process of law. Act No. 318, Pub. Acts 1909, subd. 3, § 10 (2 How. Stat. [2d Ed.] § 2496, subd. 3), following Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615).

Error to Macomb; Smith, J., presiding. Submitted April 24, 1913. (Docket No. 34.) Decided May 28, 1913.

Case by Thomas Barry against the Metzger Motor Car Company for personal injuries. Judgment for

plaintiff. Defendant brings error. Reversed; new trial denied.

Brennan, Donnelly & Van De Mark (Henry L. Lyster, of counsel), for appellant.

Silas B. Spier, for appellee.

BIRD, J. On the night of July 13, 1910, plaintiff was driving on the Gratiot road with a horse and cart, on his way from Detroit to Mt. Clemens. As he was nearing Mt. Clemens, one of defendant's automobiles approached from the rear at a high rate of speed and collided with his cart, throwing him out and severely injuring him. The servant, Garfield Colter, who was driving the car, was a "tester" for defendant. Late in the afternoon of the day of the accident Colter was ordered to take Mr. Everitt, the president of the company, to the Michigan Central station in one of the company's automobiles standing in front of the factory. He complied with this order, but instead of returning the car at once to the factory, as he was directed to do by Mr. Everitt, he picked up a party of friends and took them on a ride which lasted until after midnight, when the collision occurred. It was made to appear by the defendant that Colter was using the car at the time of the accident without its knowledge or consent, and contrary to the positive instructions of Mr. Everitt, and that he was at the time on no business of the company. This testimony does not seem to be disputed. The plaintiff planted his case on the statute (Act No. 318, Pub. Acts 1909 [2 How. Stat. (2d Ed.) § 2496, sub. 3]), and recovered a judgment in the trial court. The defendant has assigned error in this court; the principal contention being that subdivision 3 of section 10 of the act is unconstitutional and void.

After the verdict was rendered in the trial court, but before the assignments of error were argued in this

court, the case of Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615), was decided by this court, holding subdivision 3 of section 10 unconstitutional. Nevertheless counsel urged the constitutionality of the law with much earnestness upon the hearing; and, while we were much impressed with his able and interesting argument, we are of the opinion that Daugherty v. Thomas was rightly decided, and therefore we must hold that this case is ruled by it.

The judgment of the trial court is reversed and no new trial granted.

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

L. STARKS CO. v. BIGLER.

LIENS-ACCOUNTING-FOLLOWING TRUST FUNDS.

Complainant, who charged that defendant in a bill for accounting had appropriated to his own use funds furnished to buy potatoes by complainant, had the burden of showing that he had used the money in improving his real property in order to entitle the complainant to a lien on the realty, and where defendant denied so employing the funds entrusted to him but testified as to the source from which he had procured them, in the absence of evidence to overcome his claim, the court rightly denied a lien in favor of complainant.

Appeal from Oceana; Sessions, J., presiding. Submitted April 21, 1913. (Docket No. 194.) May 28, 1913.

Decided

Bill by the L. Starks Company against Clark O. Bigler for an accounting. From a decree for complainant, denying part of the relief claimed, complainant appeals. Affirmed.

Hall & Gillard, for complainant.

Cross, Vanderwerp, Foote & Ross, for defendant.

OSTRANDER, J. The bill was filed for an accounting, and, besides claiming that complainant furnished defendant considerable money for the purchase of potatoes, which was not accounted for, charges that some of the money was used by the defendant in the construction of certain buildings, upon which, and upon the land they are built upon, complainant prays it may be decreed to have a lien. After a hearing upon the merits the court found that defendant is indebted to complainant for $3,832.99, and that the proofs do not sustain the right to a lien. Decree was entered accordingly. Complainant has appealed, questioning the court's conclusion that it is not entitled to a lien. Defendant has not appealed, and no brief has been filed in this court in his behalf.

What relief should have been granted, in case complainant had shown that its funds were actually used by defendant to pay for the property upon which the lien is claimed, we need not determine. We agree with the court below that upon this subject the testimony does not support complainant's theory. The case of Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554), relied upon by complainant, is, in its facts, very much unlike the case at bar. In that case defendant declined to offer any explanation for his possession of a sum of money claimed by his employer to have been stolen from him. Defendant's circumstances, wages, and expenses negatived his legitimate possession of such a sum of money. A small part of it was marked money; his taking which