"Inasmuch as Front street from Main street to the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company is now paved with brick, and the South Bend & Southern Michigan Railway Company had agreed to pay a part of the expense thereof, which amount has been heretofore determined and agreed upon, and whereas said South Bend & Southern Michigan Railway Company has now surrendered all rights in and to said street, grantee agrees that it will pay four-fifths of the entire amount so agreed to be paid by said South Bend & Southern Michigan Railway Company and agrees to pay the same with interest in three equal annual in- ' stallments on July 1, of each year A. D. 1905, A. D. 1906, and A. D. 1907." The agreement to pay was unconditional, and did not depend upon the future construction of a street railway upon Front street, or securing the right to cross the railroad track at grade. The South Bend Company had made an absolute agreement to pay a certain amount, and had paid a part as agreed. The traction company agreed to pay four-fifths of this expense. Why it was four-fifths instead of three-fifths is not explained by the record. It may have been a mistake in writing four-fifths instead of three-fifths, but we have no evidence by which to determine that there was a mistake.

(b) If the payment of this amount was conditional upon obtaining permission from the proper authorities to cross the tracks of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company on Front street at grade, and the failure to obtain such permission, this record, as the learned circuit judge found, fails to show such diligent prosecution. All the record shows is a petition to the railway commissioner asking permission, and that a time and place be named, and notice thereof, "given to your petitioner when and where all parties interested in such crossing may be heard." There is no evidence that there was any hearing or any production of evidence or any denial on the part of the commissioner. The court properly found "that no proof has been shown denying the right to make the crossing." The burden of proof was upon the St. Joe River Traction Company and its assignee to show that it had performed the contract. The record only shows that such permission was not obtained.

(c) The agreement was not that, upon inability to obtain a crossing at grade the contract should be absolutely void. The court found that permission to cross the tracks of the C., C., C. & St. L. Ry. Co. was not necessary to make the franchise valuable, because the track could pass under the Michigan Central Railroad track without crossing the other, and that therefore there was no physical impossibility of performance. are not concerned with the reason why they did not agree that the contract should be absolutely terminated upon the failure, after diligent prosecution, to obtain a grade

We

crossing. It is sufficient to know that they did not make such a contract, but did agree that the failure to obtain this crossing and to construct the tracks within the time prescribed should operate to make the contract void only at the option of the city of Niles. Until the city has exercised that option the defendant, as assignee of the traction company, retains its right to construct a railway thereon. It placed the sole power to declare the contract ended in the city of Niles. I see no objection to the validity of this provision.

3. It is urged that the court should have found that there was no acceptance of the ordinance shown by the St. Joe River Traction Company. A written acceptance was served upon the city. It was signed in the name of the St. Joe River Traction Company, by its president and secretary, and the seal of the corporation attached. This made a prima facie case of acceptance. Kirkpatrick v. Eastern Milling & Export Co. (C. C.) 135 Fed. 144.

4. The errors assigned, upon the omission to find certain facts, become immaterial to consider, in view of the fact that they arise upon the articles of association of the various companies which were introduced in evidence, were a part of the record, and have been considered by us, as they were by the circuit judge, in arriving at our conclusions. We see no occasion to discuss the question farther. No material findings were made without evidence to support them. The judgment is affirmed.

MONTGOMERY and HOOKER, JJ., con

curred.

OSTRANDER, J. I concur in the result, as to the second point upon the first ground (a) stated in the opinion of GRANT, C. J.

BLAIR, J., concurred in the result.

MICARI v. MONROE STONE CO. (Supreme Court of Michigan. Oct. 5, 1908.) MASTER AND SERVANT-INJURY TO SERVANTPROXIMATE CAUSE-EVIDENCE-SUFFICIENCY.

In an action for injuries to an employé, evidence held not to disclose the proximate cause of the injury, but to leave the matter open for conjecture, authorizing a directed verdict for the employer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1002, 1007, 1016, 1035, 1043, 1131.]

Error to Circuit Court, Monroe County; Harry A. Lockwood, Judge.

Action by Angelo Micari against the Monroe Stone Company. There was a judgment for defendant rendered on a directed verdict, and plaintiff brings error. Affirmed.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, CARPENTER, and MCALVAY, JJ.

Willis Baldwin and John J. Kiley, for appellant. Fred L. Vandeveer, for appellee.

MCALVAY, J. Plaintiff was injured while employed by defendant in its stone quarry. The stone was taken from the place it was quarried on a four-wheeled tram car along a track to a turntable, and then down a track to the foot of the incline, where it was hoisted up into the mill, emptied, and returned to the track and pushed back to the quarry. The turntable was the central point of several diverging tracks which ran from it to different parts of the quarry. Plaintiff and another who worked with him had used the car in question for about 14 months before the accident. They were paid by the ton or load. When the car was loaded, it was pushed to the turntable, where it was turned onto the main track, and started down the incline, which was considerable. From the turntable to the foot where the car stopped was 170 feet, and on this trip one of the men usually rode, in order to control the speed of the car by standing on the brake lever. This brake was a simple contrivance, consisting of a lever and a shoe. One end of the lever was fastened near one end of the car by a strap iron bolted through the end, and also to the side of the car. It was a piece of oak two by four inches, and about five feet long. It extended along the side, and a few inches beyond the end, of the car. This lever could be raised and lowered to al

low the friction to be applied to the wheels of the car. The shoe was a piece of 2-inch oak plank 20 inches long and 10 inches wide. It was cut curving in at each end to fit the rims of the wheels, and was fastened to the lever by an iron strap bolted on each side of it, and passing up each side of the lever with a bolt through both straps, and the lever in such position that, when let down, it pressed between and fitted to the rims of the wheels. The curved parts were covered with rubber for the purpose of increasing the friction of the brake, and making it more effective. This shoe was held in place and prevented from slipping out and beyond the rims of the wheels by an iron rod on its inside next to the side of the car bent at each end at right angles; the ends passing through near the upper and lower edges of the shoe with threads and nuts to hold it secure, leaving on the back side a rod seven or eight inches between the angles, upon which was an eyebolt through which this rod passed, allowing the shoe to be raised and lowered, and holding it from getting away from the side of the car. This eyebolt passed through the frame of the car, and was held by a nut which could be reached from under the car. The accompanying diagram shows the side of the car and the lever shoe and attachments of the brake:

was run onto the track to the mill, and both men got on to put more weight on the lever because the track was slippery. Plaintiff stood on the brake lever towards the front end of the car. His helper was near the end of the lever towards the back end of the car. The car went downgrade at considerable speed, and, when within 40 feet of the foot of the incline, plaintiff fell off, and his arm was run over. The injury required amputation. Both men on the car testify that the brake shoe slipped out and down over the wheels, and plaintiff was thrown off.

They

The negligence declared and relied upon by plaintiff was defective appliances and neglect of inspection. The defective appliance complained of is the eyebolt which passed through and was held with a nut under the car body. No evidence was offered by defendant, but at the close of plaintiff's case a motion was made for an instructed verdict in its behalf. This motion was granted. After stating the facts, the court gave his reasons for such action as follows: "This action is brought to recover damages from the defendant. It appears that the car and the brake were the ones usually used in quarries. No complaint is made of the construction of either. were suitable for the purpose. No want of repair was apparent from 10:30 o'clock Monday, when the new rubbers were put on, until the plaintiff fell off. Plaintiff testifies that they were good, and worked all right. There is no testimony tending to show any specific trouble with the brake or any part of it before the accident, at the time of the accident, or following the accident. This car was used following the accident by plaintiff's partner and others. It does not appear that any one examined the car after the accident, and no testimony as to the condition of the brake after the accident has been offered. The only testimony as to what occurred at the time of the accident is given by the plaintiff and his partner, who were standing upon the lever, and by a workman who stood 60 feet away. All that the two parties on the lever can say is that they think the brake slipped. They think the screw bolt was loose. This testimony is very indefinite. It is not shown that any of the bolts on the brake were loose, and no description of any condition that could have caused the plaintiff to fall is given. The cause of plaintiff's fall is left purely to conjecture. His partner did not fall, the brake did not come off, and

there is absolutely no proof of any specific defect in the brake immediately after the accident, nor at any other time. The plaintiff, who had used it, knew of no defect, and his partner, who used it three or four days after the accident, knew of no defect, and no witness described any defect. The plaintiff in his testimony is very uncertain as to why he fell off. It was a frosty morning, and there was snow and ice. The cause of plaintiff's fall is purely conjectural. The car and brake were not unsafe in character. No want of repair is pointed out in the testimony, except that he described the running off the track by this car at the turntable four or five days after the accident. I say, gentlemen, there is no proof in this case showing any duty upon the defendant which it has failed to perform. There is no specific showing in this case of why this man fell off that brake. There is no showing of what bolt was loose, or, if loose, why loose or how loose, whether a nut was loose, or whether a thread had stripped, or whether the wood had given away-no proof of anything that would tend to show what was specifically the matter with the brake. Therefore there is no proof of negligence in this case. It has been claimed by the plaintiff that one of the grounds of negligence is want of inspection. I cannot see that there is any proof of want of inspection on the part of the defendant. For myself I cannot see, and don't believe, the law requires an employer to inspect a simple thing like a dump cart or a farm wagon. It perhaps is not necessary to determine that in this case, but it seems to me unreasonable, and I hold it is not the law, for a man to inspect a farm wagon to see whether all the bolts are on, whether the king bolt is in place and the nuts on the hounds, and whether it is safe before letting a hired man go out to haul a load of manure. This man had been using the car for 14 months, and was as competent to know whether the car was in condition as any man, and I think that, under the circumstances in this case, there is no want of inspection, and further I think it is shown that this man knew his duty to report the want of a shoe, and a man was provided by the company to make the repairs when reported, and they were made on Monday, and the car was all right, he said, after that. I think, in view of these facts, and other reasons I have not enumerated, there can be no recovery in this case. Your verdict therefore will be not guilty." Upon the verdict so instructed a judgment was entered.

Errors are assigned to all of the conclusions of the court in this charge, and we are asked to set aside the judgment. If the court was correct in his conclusion that the evidence did not disclose the cause of the injury, but left the matter to be guessed at, it will be unnecessary to enter upon a discussion of others questions in the case. The plaintiff and his helper testified through an

interpreter. They were the only persons present who could relate the facts and know the cause of the accident. Their testimony is uncertain and contradictory. From a careful examination of all the evidence on the part of the plaintiff, we are forced to agree with the court that the proximate cause of this injury is purely conjectural, and plaintiff could not recover. This court has repeatedly held that verdicts cannot be rendered upon negligence, the proof of which is uncertain, leaving the question open to guess, conjecture, and speculation. Powers v. Pere Marquette Ry. Co., 143 Mich. 379, 106 N. W. 1117, and cases cited. It will be unnecessary to consider any other questions raised.

Judgment is affirmed. The other 'Justices concurred.

GRANT, C. J. I concur in the opinion of Justice MCALVAY. The construction of this car was as simple as that of a farm wagon. When any repairs were needed, it was the duty of the workmen in charge of the car to notify the blacksmith. Joe Micari, plaintiff's partner, notified the blacksmith that the brake needed fixing. came and fixed it. "that the rubber kind and his partner had used this car for 14 months, and there had been no trouble with the brake, except the wearing out of the rubber. Plaintiff testified that the blacksmith tightened the nuts with a wrench on the Monday morning; that he (plaintiff) saw him do it. Joseph Micari testified that, "if anything got wrong, I would tell him [the blacksmith] to fix it, and the blacksmith would bring his tools down there and fix the car." This witness testified that, before the accident, the car was all right, and that this loosening was very sudden. Plaintiff's expert witness (Michael Perrini) testified that: "Sometimes when extra strains are put on bolts, they will break, and sometimes they will strip the threads right off the bolts. I couldn't tell whether (1) the bolt broke; (2) or the thread stripped off the bolt; (3) or whether the nut worked off. I wouldn't give an opinion. I don't know." The plaintiff also testified that there was snow upon the ground, and that, when he stepped on the brake. "I pressed the brake, and slipped off. I don't know whether it was snow or the brake that slipped off." Furthermore, the plaintiff stood on the front of the car, instead of upon the side. He testified that he knew the danger in standing in front, that he could as well have stood upon the side, and that he could have chosen the position he wanted to stand in.

The blacksmith soon The only trouble was of wore out." Plaintiff

Under these facts, I think the court was correct in directing a verdict for the defendant.

BLAIR and HOOKER, JJ., concurred with GRANT, C. J.

JORDAN BROS. CO. v. WALKER. (Supreme Court of Michigan. Oct. 5, 1908.)

1. SALES-CONTRACTS-CERTAINTY MATTER QUANTITY.

- SUBJECT

Plaintiffs wrote defendant requesting the sale of 3,000 bushels of pickles, vat-run, counting 5,000 to the bushel, at $1 per bushel, to which defendant replied: "Will place order for two tanks vat-run, to be taken out early in fall at $1." Plaintiffs replied: "Letter received; * presume this is about 2.000 bushels you will let us have, as we judge your tanks hold about 1,000 bushels each," to which defendant made no reply. Pickle tanks are not uniform in size, nor is there a recognized minimum or maximum size, and vat-run may mean any number from 3,000 to 6,000 pickles to a barrel, and the price for vat-run pickles varies with the number of pickles in the cask. Defendant had no tanks holding 1,000 bushels, and plaintiffs had seen his tanks. Later in the season defendant wrote that the first two tanks of pickles held 40 and 420 bushels, respectively. Plaintiffs testified that they expected 1.000 bushels to the tank, and relied on defendant's failure to contradict their statement in their last letter that his tanks held that quantity. Held, that the letters did not show the quantity and quality of the pickles purchased with sufficient certainty to constitute a contract between the parties.

2. SAME-QUALIFIED ACCEPTANCE.

The expressions in the last letter "six bushels to 45-gallon cask" was not a modification of the proposal, or a conditional acceptance, but merely a trade manner of measurement, it appearing that 45 gallons is considered six bushels in the trade.

3. APPEAL AND ERROR-PRESUMPTIONS-VERDICT-INCLUSION OF SET-OFF.

Where, in an action for breach of contract, the trial court instructed that defendant's claim of set-off be allowed in any verdict rendered for plaintiff, it will be presumed on appeal that this direction was followed.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3757.]

4. SET-OFF AND COUNTERCLAIM-OPERATION AND EFFECT.

In an action on an express contract, the allowance of defendant's set-off under the court's direction was, in effect, a verdict for defendant in that sum.

5. APPEAL AND ERROR-DISPOSITION-REVERSAL JUDGMENT RENDERED ON SET-OFF.

In an action on an express contract, where defendant's set-off was allowed against the verdict for plaintiff, upon reversal of the judgment for plaintiff upon defendant's appeal, plaintiff not having appealed, judgment will be rendered for defendant for the amount of his set-off.

Appeal from Circuit Court, Kent County; Willis B. Perkins, Judge.

Action by the Jordan Brothers Company against George E. Walker, in which defendant pleaded a set-off. From a judgment for plaintiffs, defendant appeals. Judgment for plaintiffs reversed, and judgment rendered for defendant on his set-off.

Argued before MONTGOMERY, OSTRANDER, HOOKER, MOORE, and McALVAY, JJ.

McDonald & Powers (M. A. Nichols, of counsel), for appellant. D. O. French and James A. Lombard, for appellees.

OSTRANDER, J. The court below ruled that a valid written contract existed between the parties for the sale by the defendant to the plaintiffs of two tanks of pickles, the same to be the first tanks packed by the defendant in the season of 1907. If there

was such a contract, it is to be found in correspondence of the parties here set out. It should be stated that the business of plaintiffs is purchasing pickles from those who salt or cure them, and, after subjecting them to further treatment, selling them to the trade. Defendant is owner of a salting station, and he buys cucumbers from the growers, salts and sells them. Plaintiffs had previously purchased pickles of defendant. There had been oral negotiations between them with respect to the purchase by plaintiffs of the 1907 crop, followed by some correspondence not here material. A letter written by the plaintiffs to the defendant, dated June 20, 1907, contains the following:

"If you will let us have 3,000 bushels, vatrun, counting 5,000 to the bushel, at $1.00 per bushel, we to furnish casks, it will help us out some."

The reply, dated June 27th reads:

"I will place your order for two tanks of vat-run to be taken out early in the fall when cured at the $1. This was what I figured on letting you have the time I called at your office. Barrels you furnish and price f. o. b. factory."

"P. S. 1 will give you the first two tanks filled."

The answer to this was:

"Your letter received stating that you would let us have two tanks of vat-run at $1.00 per bushel, f. o. b., W. Carlisle, six bushel to 45-gal. cask, we to furnish casks. We presume this is about two thousand bushel you will let us have, as we judge your tanks will hold about one thousand bushel each. Is it possible for you to enter our order for another thousand bushel? We would like to have another thousand bushel bought to protect us on sales."

To the last letter defendant made no reply. Whether all three or only the last two of these letters are considered, it is contended there is an offer on the part of defendant to sell two tanks of pickles, the first ones filled, vat-run, at $1 a bushel, barrels to be furnished by plaintiffs, price f. o. b. at plaintiffs' station. The expression in the last letter "six bushel to 45-gal. cask" is not, under the testimony, a modification of the proposal, or a condition attached to its acceptance. It is the statement of the trade manner of measuring quantities, understood by both parties, whether stated or not. Defendant testified that "45 gallons is considered by all packers as six bushels." See Beach, Modern Law Contracts, § 56. We are impressed, however, that the quantity of pickles and their quality, so far as dependent upon the size of the pickles, was and was understood to be matter

for further negotiation. Pickle tanks are not uniform in size, nor is there a recognized minimum or maximum size, and "vat-run" may mean pickles counting all the way from 3,000 to 6,000 pickles to the barrel. Defendant had no tanks holding 1,000 bushels or near that quantity. Plaintiffs had seen his tanks. One of the plaintiffs testified upon the subject of "vat-run" as follows: "Q. Now, I want to ask you, Mr. Jordan, whether or not the price for vat-run pickles would be higher as the number of pickles to the cask is increased? A. Yes, sir; a cask of pickles, running from 5,000 to 6,000 to the cask, would be worth more than pickles running from 4,200 to 4,400 count. On vat-run pickles that will count between 5,000 and 6,000, they are worth about 10 cents a bushel more than pickles that will count 4,000 to 4,500." So in various market quotations, introduced by plaintiffs to establish the amount of their damages, it appears that quotations are, for the most part, made with specifications as to the count. For example: "Chicago, August 10, 1907; 500 casks vat-run 3,200 to 3,500 counts at $7.50 per 45 gallon, without barrels, or $1.25 per bushel, f. o. b. Ind." "Chicago, August 17, 1907; vat-run pickles 3,000 to 4,000 bushels; 4,000 to 4,500 count, f. o. b. Ind., per bushel, $1.50."

It is to be noticed that in the letter of June 20th plaintiffs specify a 5,000 count. Defendant's offer does not specify, nor does the reply thereto specify. And as to the quantity of pickles sold, the difficulty of finding an agreement in the letters themselves is illustrated by the testimony given by plaintiff: "Q. Were you not claiming that Mr. Walker had agreed to furnish you 2,000 bushels of pickles in the months of August, September, and October for the reason that pickles had gone up? A. I had expected all the time that I was to get the 2,000 bushels. I expected 2,000 bushels because he said he would give us two tanks, and I meant 1,000 bushel to the tank. I mentioned it in my letter of June 28th. He did not tell me anything about what his tanks would hold in his letter of June 27th. He did not contradict my statement that the tanks would hold 1,000 bushels each until his letter of August 13th, when he said one tank would hold about 40 bushel, and the other 440. At that time pickles had gone clear up." Again: "Q.

Then in order that you might actually know what you were getting, he could (should) have answered your letter? A. He should have done so to make it clear; but, as he did not say anything, we presumed he meant 1,000 bushels in a tank. He did not deny it. Choice vat-run pickles are nice and straight, and a fair count to the bushel; 5,000 or 6,000 count is a nice count to the barrel. Vat-run are quoted 4,500 to the barrel, and from 5,000 to 6,000 to the barrel. Five to six thousand is a nice vat-run. Ordinarily the run is about 4,500. I have seen 6,000 count for pickles four inches long and over in them. It