I concur in the result. As I view the ease there was competent evidence tending to establish a contract as to Larsson. Shellberg is the only person that could object to the competency of Mrs. Anderson’s testimony, and he does not object for obvious reasons. However, I am of the opinion that the evidence fails to establish the terms of the contract with sufficient clearness, and that, if a contract existed, there was an entire failure of consideration. Certainly there is no evidence from which it can reasonably be inferred that Shell-berg was to support Larsson while they remained at Anderson’s.
Grace, J. I dissent. Per Curiam.Plaintiff has filed an additional petition for rehearing, raising the question that this court has no power to order judgment, but should merely order a new trial. It is contended that this court has no power to order judgment in an action triable to a jury, *540unless a. motion for a directed verdict is made in the court below. In support of his contention, counsel cites § 7643, Comp. Laws 1913. The statute quoted and relied upon by plaintiff’s counsel was adopted from Minnesota. And the Minnesota supreme court has held it not applicable to actions tried to the court without a jury. See Hughes v. Meehan, 84 Minn. 226, 87 N. W. 768; Noble v. Great Northern R. Co. 89 Minn. 147, 94 N. W. 434; Meshbesher v. Channellene Oil & Mfg. Co. 107 Minn. 104, 131 Am. St. Rep. 441, 119 N. W. 428. Nor are we wholly satisfied that this court is without power to order judgment, even in cases tried to a jury, even though no motion for a directed verdict was made, where the evidence clearly shows that it would be a futile and idle act to order a new trial. See Comp. Laws 1913, § 7844. But as this latter question is not involved in this case, we express no opinion thereon.