¶1(dissenting). It is the claim of plaintiff, briefly stated, that, after he became the owner of a tax title, he employed the defendant Gates to procure for him the original title from Fulton Brothers upon as favorable terms as possible; that, instead of doing so, the two defendants conspired together to procure the original title, the deed thereto being taken in the name of Sholes, who later conveyed to the plaintiff. It is to recover the damages caused by having to pay Sholes more than plaintiff claims he should have paid Fulton Brothers, that this suit is brought. At the close of plaintiff’s testimony a verdict was directed in favor, of defendant Sholes, and, upon the close of all the testimony* it was directed in favor of defendant Gates. The case is brought here by writ of error, counsel insisting there was a case to go to the jury.
¶2A careful reading of the record satisfies us that, at the close of plaintiff’s testimony, no wrong-doing was shown as to defendant Sholes, and we think the court very properly directed a verdict in his favor.
¶3It is the claim of defendant Gates that, at the time when the plaintiff claims Gates was giving him advice about the tax title, and employed him to procure the original title, he was not, and had never acted as, his attorney, and a number of receipts signed by the plaintiff and introduced in evidence tends to strongly support this claim. He also testified that he had no talk with plaintiff about procuring for him the original title; that he learned from an inspection of the records the Fulton Brothers were the owners, and dealt directly with them in procuring the original title; and that when plaintiff obtained the deed *172from Sholes he knew fully the part Mr. Gates had in the transaction. His testimony is a full and explicit denial of any wrong-doing. This dispute between plaintiff and Mr. Gates of course presented a question of fact for the jury, and, if it was all there was in the case, it would have been the duty of the judge to submit the question to them. It was, however, not only the duty of the plaintiff to show the agreement and a breach of it, but to furnish some testimony upon which the jury could act intelligently in arriving at the amount of damages.
¶4It appears by the record that in the latter part of 1896 Fulton Brothers and their wives executed a deed to Mr. Roberts for this land and sent it to Judge Stevens of Port Huron to be delivered when $125 was paid. Some correspondence ensued, and the deed was returned to Fulton Brothers. Mr. Roberts says he was governed by the advice of Mr. Gates. This is denied by Mr. Gates. The latter testified he found the title was in Fulton Brothers from the indexes in the abstract office; that he then called the Fulton Brothers by telephone and inquired of them for what their interest could be purchased; that he was asked if he was acting for Roberts, and was told “ If you are you cannot have it for a cent less than the land is worth.” This testimony is uncontradicted. It also appears from Mr. Roberts’ testimony that for the deed from Sholes to him he paid $77.50 in money, and gave his notes for $425; that he refused to pay these notes; that he has been sued upon them, and that in an affidavit filed in the case he swore that “he has a good and substantial defense to the merits thereof as he is advised by his counsel after such statement made as aforesaid and-verily believes to be true.”
¶5We have, then, a case where it appears the Fulton Brothers would not sell to Mr. Roberts for less than the full consideration named in the deed from Mr. Sholes, where it also appears that all he has paid to Mr. Sholes is $77.50 in money and notes for the balance, and as to the notes he is contesting them and claims he has a good de*173fense to the suit brought upon them. I agree with the circuit judge when he said that ‘ ‘ he was of the opinion that the case was barren of facts to form a basis as to the measure of damages,” and for that reason directed a verdict in favor of Mr. Gates.
¶6£ think the judgment should be affirmed.