(dissenting). Plaintiff, an undertaker, of Tuscarora, Nev., brought this suit to recover a balance alleged to be due from defendants for coffin, services, etc., furnished and rendered in preparing the body of L. F. Harris, the father of defendant Allie Hulett, for shipment from Tuscarora to Armada, Macomb county, Mich., for burial. Upon the death of Mr. Harris, J. E. Douglass, noble grand of a Tuscarora Lodge of Odd Fellows, *296sent the following telegrams and received the following replies, viz.:
“Tuscarora, Nevada, November 37th. “Mrs. Alice Hulett, Armada, Mich.
“ Mr. L. H. Harris, your father, died here this morning at seven o’clock. How do you wish the remains disposed of ? If buried here, send age and place of birth.
“ J. E. Douglass.”
“Tuscarora, Nevada, November 37th, 1903. “Armada Lodge Number 493, I. O. O. F.,
“Armada, Mich.
“ Mr. L. H. Harris, of your lodge is dead. Telegraph instructions.
“ J. E. Douglass,
“N. G., Number 30, I. O. O. F.”
“Armada, Mich., November 37th, 1903. “To J. E. Douglass, Tuscarora, Nevada.
“ Send remains of L. H. Harris here. Charges guaranteed.
“Mrs. Alice Hulett.”
“Armada, Mich., November 37th, 1903. “J. E. Douglass,
“ N. G., Number 30, I. O. O. F.,
“ Tuscarora, Nevada.
“Send remains of Brother Harris here; charges guaranteed.
“ Burton Hodges, N. G.”
The telegram from Mrs. Hulett was sent at 5:47 p. m., and the telegram signed 4 4 Burton Hodges ” was sent at 7:55 p. m., November 37th. Mr. Wilder, the operator who sent and received the messages, was secretary of Armada Lodge. He sent the message to Mrs. Hulett, who lived in the country, by a Mr. Knickerbocker, who delivered it to Mr. Hulett. Knickerbocker reported: “Hulett instructed him to send a message to have the body forwarded,” and “ that he would pay the charges ; ’’ he said, “ Have Mr. Wilder have them forward the body on at my expense.” After sending the Hulett telegram, Mr. Wilder saw Dr. Hodges and reported the facts to him and other lodge members on the street, and the lodge *297telegram was sent to guarantee payment by Mr. Hulett. Mr. Hulett knew nothing about the sending of the telegram by Dr. Hodges until the next day. The plaintiff testified:
“Q. Who called you to attend the body of Mr. Harris and prepare it for burial ?
“ A. J. E. Douglass, as N. G. of Tuscarora Lodge, No. 30, I. O. O. F.
“ Q. What was the arrangement made as to your services, casket, etc. ?
“A. I was directed to do this work by Mr. J. E. Douglass. * * *
“ Q. What was your charge for the services, casket, etc., in such matter ?
“ A. One hundred and thirty-seven dollars.
“ Q. What amount has been paid you on that bill and by whom, was it paid for you ?
A. Twenty dollars by Mr. J. E. Douglass. * * *
“ Q. On what responsibility then did you do this work and furnish the casket, etc.?
“ A. On the responsibility of the telegram received by Mr. J. E. Douglass from Armada Lodge, I. O. O. F., directing the shipment of the body home.”
Mr. Douglass, noble grand of the Tuscarora Lodge, testified:
“ I stated the purport of those telegrams to Mr. W. S. Hillman.
‘1 Q. Upon what telegram or telegrams received by you was the responsibility taken of ordering the body of Mr. Harris prepared for shipment and there shipped ?
“A. On telegram from Armada Lodge.
“ Q. Who ordered Mr. Harris’ body prepared and then sent to his home ?
“A. I did, on the strength of telegrams from Armada Lodge.
“ Q. To whom was such order given ?
“A. ToW; S. Hillman.”
The body of Mr. Harris was shipped by express, charges prepaid, to Mrs. Hulett, and the bill was made out to her. Mr. Hulett paid to the Armada Lodge $100 received by Mrs. Hulett from a miners’ union, and the lodge paid $30 *298on the funeral expenses by an order drawn in favor of Mrs. Hulett. Statements of Mr. Hulett to witnesses at Armada were put in evidence, tending to prove that he recognized the indebtedness as his. Mr. Hulett claimed that in all that he did he was acting for his wife and not in his own behalf.
Among others, the circuit judge made the following findings:
“No credit was ever extended by the plaintiff to either of the Huletts, nor did he know them. The shipment was undoubtedly made and the other expense incurred upon the faith of the Tuscarora Lodge, who in turn looked to the Armada Lodge. But this would not preclude the plaintiff from bringing suit and recovering against any one actually liable. The expense was incurred directly upon the personal order of Bert Hulett.
“ So far as the question of agency between husband and wife is concerned, I have no doubt but that, where a husband orders funeral arrangements made for a wife’s deceased father, he is to be held personally liable unless it affirmatively appears that , all parties were informed distinctly that he was acting merely as his wife’s agent and did not intend to become personally responsible.
“ In my opinion, neither the doctrine of estoppel nor the statute of frauds is involved in this case at all.
‘ ‘ I have carefully examined all the briefs submitted to me, and can come to no other conclusion than that both the defendants are liable.”
Plaintiff’s counsel contend:
“ These facts present a simple case of agency, and the fact that Hulett, as principal, was not disclosed until after the services were performed and the body shipped, does not prevent a recovery from him, when it is learned that he was the undisclosed principal who authorized the expenditure and received the benefit of the services.
“ The undertaker knew, through the Tuscarora Lodge, that he was acting for a Michigan family in sending a dead father home.
“ The name of the head of that family he did not know, but the wife and local lodge had telegraphed that the charges would be paid, and on the strength of these telegrams plaintiff acted. We have now. shown that appel*299lant was the head of that family; that he authorized the expenditure through his own agents; that both Wilder and the Tuscarora Lodge were his agents; we have traced the services and the casket to him, and know he used them, and have done all that is required of us to recover against him for such services and goods.
“Not only did defendant Hulett expressly authorize the incurring of these expenses, but he has since ratified them by his conduct, and is now estopped from denying h'is liability.”
It is clear that no contract relations existed between the defendant Bert Hulett and the plaintiff. Neither did any contract relations exist between Bert Hulett and the lodge at Tuscarora or at Armada. So far as the Armada Lodge was concerned, he did not request it to guarantee payment of the charges, nor did he know that it had done so until afterwards. He did not communicate to the lodge his action nor authorize the telegraph operator to do so, and the most that can be claimed is that he ratified the action of the lodge after he learned of it. The operator was not the agent or representative of Mr. Hulett, and had no power to bind him; he was merely the messenger to transmit the message sent to the Tuscarora lodge. Neither was the operator the agent of the plaintiff or the Tuscarora Lodge, and anything said to him through Knickerbocker was of no avail to confer any rights upon the plaintiff except as transmitted to the plaintiff and acted upon by the plaintiff. This was not a transaction with an undisclosed principal. The principal was disclosed by the telegram. Plaintiff understood that Mrs. Hulett was the principal; he made out his bill to her, and the body was shipped in her name. Both of the telegrams were stated to plaintiff, and he rendered the services and furnished the coffin, etc., as held by the court, upon the faith of Tuscarora Lodge, which was his employer, and which, in turn, relied upon Armada Lodge. I do not think that it can be said, “ The expense was incurred directly upon the personal order of Bert Hulett,” so far as the plaintiff is concerned. The expense was in- *300' curred directly upon the order of Tuscarora Lodge, guaranteed by Armada Lodge. Mrs. Hulett was liable, because her name was properly signed to the telegram by her authority, and because she actually did order the shipment, to the knowledge of the plaintiff. So far as the plaintiff was concerned, he was in no wise deceived or misled; he acted upon the facts as they were presented to him by telegrams, which spoke for themselves and could not be misunderstood. In order for the doctrine of undisclosed principal to apply, some one must have assumed to act as agent. There was no such situation here. Armada Lodge never assumed to act as agent for Hulett; they guaranteed payment. To hold otherwise, requires the postulate of an undisclosed agent as well as an undisclosed principal. In the case of Heyn v. O'Hagen, 60 Mich. 150, the shoemaker who ordered the goods represented to the seller that he was the agent of the defendant, and the court held that the defendant, by his conduct, ratified the representation. In the present case, Armada Lodge never represented itself, either expressly or by implication, as the agent of the defendant Mr. Hulett, and the goods were not furnished in reliance upon his responsibility. The case is not an authority for the alleged ratification in this case. It, therefore, follows that the plaintiff cannot recover in this case upon the basis of express contract, but only, if at all, upon the basis of an implied contract to pay for materials furnished and services rendered for defendant’s benefit and accepted by him. 9 Cyc. p. 254 (III); Litchfield v. Garratt, 10 Mich. 426; Turner v. McCarty, 22 Mich. 265; Wheeler v. Stewart, 94 Mich. 445; Bailey v. Rutjes, 86 N. C. 517.
This case is the converse of Downing v. Buck, 135 Mich. 636. In that case the defendant did not know that the plaintiff was rendering services for him, and it was therefore held that he was not liable for such services. In this case the plaintiff did not know that he was rendering services for the defendant Bert Hulett, but plain*301tiff’s proofs tended to show that the defendant intended that the services should be rendered for him, directed the telegraph operator to wire that the body should be sent at his expense, arranged with another to pay the charges even to the amount of $280, if the body arrived when he was not at the station, made payments on the bill without objection, except as to the amount, and throughout recognized the liability as his, and appropriated and received the benefit of the plaintiff’s services and property furnished. Under such circumstances, a finding that Hulett was really acting in his own behalf would be supported by evidence, and he might properly be held liable for the value of the articles furnished and services performed. On the other hand, if it were found that Hulett was really acting for his wife, as he claimed, he would not be liable.
It is contended by défendant’s counsel that there was no evidence of the value of the articles furnished or services rendered, and that for this reason a judgment should have been rendered in his favor. Upon this point, the court said:
“ The proofs show that Mr. Harris died; that his body was prepared for burial by the plaintiff; that it was shipped to Armada in a casket furnished by him; it arrived there and was buried in the casket provided by the plaintiff; it is, I take it, practically undisputed that all the services charged for were furnished. Defendants saw and had opportunity to inspect the materials, quality, etc., of the goods provided. These facts, in connection with the deposition of W. S. Hillman, it seems to me, sufficiently cover the ground.”
The only testimony upon the .question of value was that of the plaintiff, above quoted, that his “charge, for the services, casket, etc.,” was $137, and the following from the testimony of Mr. Hulett:
“Q. What is the balance due at the present time ?
“A. I believe that it is a hundred seventeen dollars and a half.
“Q. That is the correct amount due on the account ?
“A. That is what they claim on it.”
*302We do not think there was any competent evidence of the value of the services or materials furnished. The word “charge” is not synonymous with “value.” Under his testimony in this case, plaintiff could not be convicted of perjury if it should turn out that there was a gross overcharge. Defendant, if liable, could only be held for the value of the services and materials which he appropriated, and not for any fancy sum which plaintiff saw fit to charge. We think it manifest that defendant did not intend to admit that there was any specific sum due, but simply that a certain balance was claimed to be due. The case of Ducoign v. Schreppel, 1 Yeates (Pa.), 347, holds that a day book is prima facie evidence, not only of the delivery of goods, but of their prices. It is said in the short per curiam opinion:
“ How else could the prices of broadcloths, linen, cambric, etc., of different degrees of fineness, be ascertained after a length of time ? A contrary doctrine would render our üsage of small advantage to the mercantile or mechanical part of the community. * * *
“ The necessity of the case, however, which gave birth to our practice in this particular, by no means warrants that entries in day books should be considered as evidence of money lent or cash paid.”
I do not think this case is in point. Books of account are only admissible upon proof of their correctness, and, if the case cited holds to the contrary, which I do not understand to be the case, it would be contrary to numerous decisions of this court. Cameron Lumber Co. v. Somerville, 129 Mich. 552. In my opinion, the case of Farrington v. Wright, 1 Minn. 241, is directly in point as to the construction which should be given to the plaintiff’s testimony. In that case, the defendant in his answer admitted all of the material allegations of the complaint, but alleged by way of counterclaim that “ the defendant charged for his commissions thereon twenty-five dollars, leaving a balance of $268 in favor of the plaintiff.” The court say:
“The counterclaim for commissions is not adequately *303alleged in the answer to make it available to the defendant below. The allegation is that he ‘charged twenty-five dollars for his commission.’ He does not allege that the charge was true, or that the services for which he made the charge were worth that or any other sum. In verifying the answer, he, in effect, only swears that he charged that sum, and not that the charge itself was true or just. I do not think that the allegation is sufficient to admit proof to sustain a claim of twenty-five dollars or any less sum for commissions. The existence of such a claim is not alleged, nor can it be implied from the statement that he charged it. Proof that he made the charge, which is all that is alleged, would not alone sustain a claim for the amount charged, or any less sum. Proof of other facts, not alleged, would be required to resolve the charge into a valid legal claim.”
The testimony of the plaintiff was taken by deposition, apparently at Tuscarora, Nevada, and there does not seem to have been any cross-examination. If the value of “ the services, casket, etc.,” for which the plaintiff’s “charge” was $137, had been known to him to have been only $50, an indictment for perjury could not have been maintained upon this testimony, because, as said by the supreme court of Minnesota, ‘ ‘ he does not allege ( swear) that the charge is true or that the services for which he made the charge were worth that or any other sum.”
Neither do I think it ought to be held that the defendant acquiesced in a supposed erroneous construction by plaintiff’s counsel of the effect of his testimony. I know of no rule of law which requires defendant’s counsel, during the course of the trial, to inform plaintiff’s counsel that, although he thinks he has proved his case, he has failed to do so. Defendant’s plea put every material fact in issue. The burden of proof was upon the plaintiff to establish every material fact by at least prima facie evidence. He failed to do so, and the defendant was, I think, within his legal rights in raising the question as he did at the close of the case. At the close of the testimony, the record contains the following:
“And after such testimony was given, the cause was *304submitted to the said court for decision without oral arguments, but upon written briefs, in which said briefs counsel for defendants, among other things, raised the objection to there being no proof made of the value of the labor and materials for which recovery was sought in this case.” .
I think also that the testimony of Mr. Hulett on cross-examination was notice to plaintiff’s counsel that he did not intend to admit that the balance claimed to be due was correct. He testified: •
“ Q. What is the balance due at the present time ?
“A. I believe that it is a hundred seventeen dollars and a half.
“ Q. That is the correct amount due on the account ?
“A. ,That is what they claim on it.”
' Until the plaintiff put in some evidence of the value of the services and materials, defendant was not called upon to produce testimony upon that subject.
The judgment should be reversed as to the defendant Bert Hulett, and new trial granted.
Montgomery and Hooker, JJ., concurred with Blair, J.