by the owner. The proofs here are convincing, however, that the plaintiff was honestly mistaken, and at the time the statement was prepared did not know that these subcontractors had been paid.

Counsel cite the following cases: Gibbs v. Hanchette, 90 Mich. 657 (51 N. W. 691); Brennan v. Miller, 97 Mich. 182 (56 N. W. 354); Scheibner v. Cohnen, 108 Mich. 165 (65 N. W. 760); J. E. Greilick Co. v. Taylor, 143 Mich. 704 (107 N. W. 712); Griff v. Clark, 155 Mich. 611 (119 N. W. 1076, 29 L. R. A. (N. S.) 305, 130 Am. St. Rep. 582). The facts in this case are easily distinguished from the facts in the cases cited, because it clearly appears that in those cases the claimant included amounts to which he was not entitled under any circumstances. But in the case at bar the amount stated was the balance actually due under the terms of the contract itself. We think this case is governed by Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687).

The next contention involves the claimed lien for extras which it is urged were not ordered in writing, whereas the contract provided that all extras should be ordered in writing. It appears that the contract itself does not provide that the extras should be ordered in writing, but the specifications for the building do contain such a provision. An examination of this record shows that on the hearing in the court below it was strongly urged that the extras were not furnished at the request of the defendants, and were not worth the amount claimed for them. But we have been unable to find that the claim now urged-that they could not recover for extras because they had not been ordered in writing-was raised in the court below, or relied upon until the case reached this court. We have said that under these circumstances we will not consider this question. See Jeup v. State Fire Marshal, 182 Mich. 231 (148 N. W. 340).

It is the next contention of the defendants' counsel that the contractor's statement of the amount due did not give the number and name of each subcontractor and laborer in his employ, and that therefore it is not such a statement as complies with the lien law. In our opinion, the only reasonable construction to be given to the statute is that it is not necessary to include in the statement the names of the persons who have been, but who are no longer, in the employ of the claimant, or the names of the persons who have furnished materials unless there is some amount due them.

The remaining contention of the appellant is that the court did not allow the owners anything for the cost of finishing the building in accordance with the plans, after the contractor had ceased working, and that there was no testimony on which to base the allowance made by the court below of $90 for the cost of painting the exterior of the house (which had not been done by the contractor), and for defects in the house. This contention involves a review of all the testimony in the record, which it would not be profitable to attempt to do in an opinion. In a general way it was the defendants' contention that the house was not completed in a workmanlike manner, and this contention is largely supported by the testimony of the defendant Emery Garman himself, who was a carpenter, and the testimony of Mr. John Pagganetti, a contractor of some years of experience, who examined the house and discovered a number of defects. The testimony is controverted by the testimony of the plaintiff and an architect, Thulin, who was a witness for the plaintiff.

It is conceded that the exterior painting of the house was not completed, and the defendant Emery Garman testified that he had obtained an estimate from a Mr. Billings that it would cost $125 to complete it accord

ing to the specifications. It is endeavored to meet this testimony by the testimony of the painter Farr, who did the work, which the record is convincing was not first-class work. He stated, "I imagine it would take $15 to finish up this job. This includes the inside and outside."

In this class of cases it is often difficult for an appellate court, without the advantage of seeing and hearing the witnesses, to weigh the testimony and get at the truth. But it does seem that the estimate of the defendants with reference to the cost of the painting is nearer the amount required than that of the plaintiff. A careful reading of the testimony satisfies us that the defendants should be allowed $125 for painting the exterior and the interior to bring it up to the specifications.

Considerable criticism is also made, among other things, of the way in which the plate rail was put up in the dining room, and the rail on the porch. In the amount fixed by the trial judge, counsel for plaintiff is of the opinion that $15 was allowed to complete the painting, and the balance of $75 for these defects, and is of the opinion that this was an ample allowance. The best that can be done under the testimony in this case is an approximation, but that this construction was defective the record is convincing, and we think that $75 should be allowed for these defects. We are therefore of the opinion that instead of $90, there should be subtracted $200 from the amount due.

The decree thus modified will be affirmed. Neither party will recover costs of this appeal. The cost of printing the record will be equally divided between them.

STONE, C. J., and BIRD, MOORE, STEERE, BROOKE, and PERSON, JJ., concurred with KUHN, J. OSTRANDER, J., concurred in the result.

LARDIE v. MANISTEE & NORTHEASTERN RAILROAD CO.

1. CARRIERS-NEGLIGENCE-LIMITATION OF LIABILITY.

The consignor of a carload of potatoes, who accepted a box car for his shipment, rather than to wait for a refrigerator car, assuming the risk of freezing, by special agreement in the form of an indorsement on the shipping order to that effect, could not recover damages for breach of the contract of carriage because of the freezing of the potatoes, where there was no proof of delay, though under the Michigan statute the carrier may insert only such conditions as do not impair his obligation to exercise that degree of care which a reasonably careful man would exercise in regard to similar goods of his own. 2 Comp. Laws 1915, § 8176, subd. 6.

2. SAME DUE CARE.

The statute cannot be construed to require the carrier to take precautions which the owner himself does not deem it necessary to take.

3. SAME-ACT OF GOD.

Where the immediate cause of injury is a sudden or unforeseen event after a delay in shipment, the carrier has in numerous cases been excused from liability to the shipper on the ground that it was an act of God, and a similar rule prevails in Michigan, though the accident occurs during a delay in transit caused by the fault of the railway company.

Error to Grand Traverse; Mayne, J. Submitted April 18, 1916. (Docket No. 80.) Decided June 1, 1916.

Assumpsit by George W. Lardie and another, copartners as George W. Lardie & Son, against the Manistee & Northeastern Railroad Company for breach of a contract to deliver certain goods. Judgment for plaintiffs on a verdict directed by the court. Defendant brings error. Reversed.

Wilson & Johnson (Parm C. Gilbert, of counsel),' for appellant.

John J. Tweddle, for appellee.

The plaintiffs, through their agent at Kaleva, bought a car of potatoes at Chief Lake for shipment to Chicago. Their agent ordered a refrigerator car from the defendant's agent at Kaleva, but was unable to get one. He then told the latter that a box car would be all right. A box car was placed and loaded, and the plaintiffs' agent wrote on the shipping order and bill of lading "Owner's Risk Freezing," and, "Box car loaded with perishable freight at shipper's request and shipper's risk." He testified that he did this because he could not get a refrigerator car. The car was taken by the defendant to Kaleva on April 3, 1914, and turned over to the Pere Marquette Railroad Company some time between that date and April 7th. It left Kaleva April 7th. On April 5th the agent of the defendant at Kaleva told the plaintiffs' agent that the potatoes were freezing, and that he should put a stove in the car. The latter testified:

"I didn't do it because the night before was cold * * * I knew that they were frozen some, and I was not going to do anything to them. I called up Mr. Lardie, and he told me not to put any stove in."

The shipment amounted to 648 bushels, and about 100 bushels were frozen when the car reached Chicago. The consignee refused to accept them, and the plaintiffs telegraphed the consignee to turn them over to the railroad company to be sold to the account of the defendant. The plaintiffs now bring this action for a breach of the contract of carriage to recover the damages sustained. The court directed a verdict in their favor on the ground that the loss was caused by an unreasonable delay at Kaleva. The principal