On Petition for Rehearing, Piled March 26, 1921.
Birdzell, J.In a petition for rehearing counsel for the respondent seem to contend that the conclusion reached in the foregoing opinion enables the defendant to take advantage of his own error. It is pointed out that the plaintiff’s testimony concerning the express contract was adduced by the defendant in cross-examining her. It follows from this, of course, that the defendant cannot claim that her testimony on this subject is incompetent. Counsel have clearly misconstrued the opinion. The judgment is not reversed because the defendants themselves drew from the plaintiff as a witness testimony which, under the statute (Comp. Laws 1913, § 7871), she was incompetent to give; but it ivas found necessary to reverse the judgment because of an erroneous instruction — an instruction which amounted practically to a direction to find a verdict for the plaintiff. "While the defendant, by reason of the cross-examination, was no longer in a position to claim that the plaintiff was an incompetent witness to the express contract, it does not follow that the defendant was bound by the testimony so elicited. The credibility of this testimony was for the jury, who might or might not believe that there was an express contract. But the trial court instructed the jury that they could find for the plaintiff upon an implied contract and that they might imply this contract from the bare fact that board and lodging were furnished. It is this portion of the instruction that is held to be erroneous.
The petition for rehearing is denied.
Christianson and Bronson, JJ., concur.