1. PLEADING-UNNECESSARY ALLEGATION OF PERFORMANCE OF CONDITION Precedent May be Stricken out on Motion. In a suit to foreclose two mortgages, it was not error to strike out allegations of the complaint that plaintiff performed all things required of him; same being surplusage, no such duty resting on plaintiff under the terms and conditions of the mortgages.

2. Mortgages — General Allegation or Performance of Conditions Precedent Sufficient, Where Such Conditions Alleged in Complaint. In a suit to foreclose two mortgages, if the complaint alleges that they were given by defendant to plaintiff’s assignor as a consideration for the latter’s contract to build an apartment house on the mortgaged lots, a general allegation of due performance of the contract would be sufficient, under Comp. Laws 1917, § 6601.

3. Pleading — Averment of Failure of Mortgagor to Apply Rentals to Mortgage May be Stricken as Surplusage, Where Mortgage does not Impose Such Duty. Where plaintiff sued to foreclose two mortgages, and defendant answered that plaintiff’s assignor, in consideration of said mortgages, agreed to erect on the mortgaged lots an apartment house, according to certain plans and specifications, payments on the notes secured by the mortgage not to begin until after completion of the building, it was not error to strike from the complaint averments made as grounds for a receivership, that defendant had not applied to the payment of the notes and mortgages, the rentals received by her for the apartments; no such duty devolving on defendant under the terms and conditions of the notes and mortgages sued on, and plaintiff having the right to meet the issue by way of reply.

4. PLEADING — Answer Alleging Non-performance of Condition PRECEDENT TO SUIT TO FORECLOSE HELD NOT VULNERABLE TO GENERAL Demurrer. Where plaintiff sued to foreclose twcT mortgages, defendant’s answer, that plaintiff’s assignor, in consideration of the mortgages, agreed to erect an apartment house on the mortgaged lots, payments on the notes secured not to begin until after the completion of the building according to certain plans and specifications, and that the building had not been so completed, stated a defense, and, even if assailable by special demurrer, was not vulnerable to a general demurrer.

5. Mortgages — Answer to Foreclosure Suit Alleging Nonperformance of Conditions Precedent Held Bad on Special Demurrer for Ambiguity and Uncertainty. In a suit to foreclose two mortgages given to plaintiff’s assignor in consideration for the erection of an apartment house on the mortgaged lots, payments not to begin until after the completion of the building according to certain plans and specifications, defendant’s answer that the building was incomplete, and not according to plans and specifications with respect to workmanship and materials, was ambiguous and uncertain, in that it did not allege in what particulars the building failed to meet the plans and specifications, or wherein it was incomplete, alleged no facts constituting fraud, and contained no statement of the kind or character of workmanship or materials to be used, so that a special demurrer to it was properly sustained..

6. Judgment — 'Dismissal not Res Judicata, if not on Merits. A judgment dismissing plaintiff’s suit for foreclosure of certain mortgages on the ground it had been prematurely brought, the court making no finding as to the amount due on the mortgages and notes secured thereby, not being on the merits, is not res judicata at common law or under the statute. Comp. Laws 1917, § 6859.

7. Contracts — 'Building Contractor Must Substantially Comply -with Contract. Under a contract for the erection of a building according to agreed plans and specifications, the law contemplates a substantial, but not punctilious, compliance therewith; the contractor not being permitted to profit by noncompliance with the contract, nor the owner to reap the benefits of the added value to his property by reason of labor performed and materials furnished by the contractor.

8. Contracts — (Use and Enjoyment of Building not Acceptance of Faulty Workmanship or Inferior Material. Under a contract for the erection of a building according to certain plans and specifications, the fact that the owner had been in the use and enjoyment of the building did not amount to an acceptance of faulty workmanship or inferior material, and she was entitled to all the damages arising from nonperformance of the contract.1

9. Bills and Notes — Notice to Assignee of Assignor’s Contract, Made in Consideration of Note and Mortgage Assigned, Does not Charge Assignee with Liability for Breach. The fact that the assignee of certain notes and mortgages took the same with notice of his assignor’s contract to build an apartment house on the mortgaged lots, in consideration of the notes and mortgages, did not charge him with the assignor’s willful neglect to complete the building- according to agreed plans and specifications.

10. Mortgages — Mortgagor, Who Refuses to Permit Performance of Mortgagee’s Contract to Build on Mortgaged Premises, Es-topped to Set up Nonperformance as Bar to Foreclosure. Where plaintiff’s suit to foreclose two mortgages was dismissed, the defense being that plaintiff’s assignor failed to complete the building of an apartment house for defendant on the mortgaged lots, as he agreed to do in consideration of the mortgages, and thereafter defendant refused to permit the building to be completed and the defects remedied, or to discharge her liabilities under the mortgages, and made no claim for credit for the damages, sustained by nonfulfillment of the contract, she cannot be heard to say in a court of equity, in a second suit to foreclose, that the mortgages are not now due, and that no foreclosure can be had at this time.

11. Mortgages — Suit to Foreclose Only Form of Action Permitted to Recover Debt Secured by Mortgage on Real Estate. Under Comp. Laws 1917, § 7230, permitting but one action for the recovery of any debt or the enforcement of any right secured by mortgage on real estate, an assignee of notes and mortgages on lots on which the mortgagee agreed to build for the mortgagor adopted the proper form of action in bringing suit to foreclose the mortgages.2

12. Mortgages — Mortgagor, on Suit for Foreclosure, May Offset Damages by Failure oe Mortgagee to Fulfill Contract Make IN Considebation or Mobtgage. Where an assignee took two mortgages and the notes secured thereby with notice of his assignor’s contract to build for the mortgagor on the mortgaged lots, in consideration of the notes and mortgages, the mortgagor, in suit for foreclosure, should be permitted to offset all damages sustained by her by reason of the assignor’s failure to complete the building substantially in accordance with the contract.

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How this case has been treated — in progress