The side track west of the mill, constructed under the above contract, commenced at the South Horn track, at point A, and terminated at point B, and is called B21. The east side track commenced at "Sta. 33," and terminated at point C, and is called B18. The place marked with a star is where the fire originated. The places marked X indicate the location of the lumber piles which were burned. The east siding can only be used by running cars northerly along the South Horn track to point A, and there switching and taking them onto siding B21. The track east of the mill can only be used in connection with the brewery track, which connects with the South Horn track. Therefore, in order to use either of these side tracks, the South Horn track or the brewery track must be used as a part of the same operation. The movements of the engine at

the time were as follows: It went from the South Horn track onto B21, hitched onto cars standing on that track, pulled them out onto the South Horn track, and then shoved those cars south on the South Horn track to a distance south of the switch connecting South Horn track with the brewery track. Then the engine moved back north to said switch, and passed in onto the brewery track, and hitched onto seven or eight cars standing on said track east of the mill, which track was entirely filled with cars. The engine then pulled those cars south until it passed out onto South Horn track. As it passed out onto South Horn track, a fire was discovered 30 or 40 feet west of the South Horn track. From the South Horn track to the lumber piles the ground was covered with sawdust and shavings. They were very dry, and a very strong wind was blowing from a southerly direction directly towards the lumber piles. The fire was discovered in a few minutes, and some of the plaintiff's employés were sent with pails of water in the attempt to put it out. It was, however, impossible. The wind carried the lighted shavings, and the fire soon covered the spaceabout 400 feet-between where it originated and the lumber piles, set the piles on fire, and they were entirely consumed.

In reply to special questions, the jury found that the engine was not in good condition when it left the defendant's shops, April 2d, 20 days before the fire; that it was not properly inspected at weekly intervals; that at each inspection after April 2d, and before the fire, it was not found to be in good condition. The jury also found that the engine was properly managed while engaged in the work upon the plaintiff's premises.

The further statement of facts, so far as essential, will be made in connection with the points determined.

Frederick W. Stevens (Smith, Nims, Hoyt & Erwin and Benton Hanchett, of counsel), for appellant. William Carpenter (Robert E. Bunker, of counsel), for appellee.

GRANT, J. (after stating the facts). 1. Counsel for plaintiffs contend in their supplemental brief that the contract is void because it exempts a common carrier from loss resulting from its own negligence, and that such contracts are void as against public policy. This case does not fall within those where contracts to exempt from liability are held void on the ground of public policy. It is a fundamental rule of law that what one may refuse to do entirely he may agree to do upon such terms as he pleases. In contracting to put in these side tracks, the defendant was not acting in the capacity of a common carrier. It was under no legal obligation to put them in. It might have refused. It is a fact known to all, and appears upon this record as well, that engines, when properly

equipped and properly managed, will oftentimes set fires, and the court so said to the jury. In Burud v. Great Northern Ry. Co., 62 Minn. 243, 64 N. W. 562, the court say that a court, as well as a jury, is justified in taking notice of the fact that it is impossible, by means of any present known appliances, to so construct and equip a locomotive that it will not sometimes scatter sparks and cinders. There was no occasion to contract against properly equipped and properly managed engines, for fire caused by such would not create any liability. The only purpose of such a contract was to avoid the consequences of its own negligence, and to avoid lawsuits growing out of alleged negligent acts. It had a perfect right, both in reason and authority, to contract against such liability. This is well settled both by our own decisions and those of other jurisdictions. Coup v. W., St. L. & P. Ry. Co., 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374; M. S. & N. I. R. Co. v. McDonough, 21 Mich. 165, 193, 4 Am. Rep. 466. In the latter case, speaking through Justice Christiancy, the court said: "Having the right to refuse altogether, they must have the right to refuse except upon just such terms and conditions as they saw fit to require." See, also, L. S. & M. S. R. Co. v. Perkins, 25 Mich. 329, 12 Am. Rep. 275. Many authorities upon this point are cited in the defendant's briefs, among which are Stephens v. Railway Co., 109 Cal. 86, 41 Pac. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17; Hartford Fire Ins. Co. v. Railway Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84; B. & O. Ry. Co. v. Voight, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; Quimby v. Boston & Me. R. Co. (Mass.) 23 N. E. 205, 5 L. R. A. 846. The late case of Russell v. Pittsburg, etc., R. Co., 157 Ind. 305, 316, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214, is directly in point. The court read to the jury that provision of the contract exempting it from loss by fire, and then said to them that it was for them to determine whether the loss came within the contract. The vice in this instruction lay in the fact that it did not instruct the jury that the contract relieved the defendant from its negligent acts. It was clearly the duty of the court to so instruct the jury. The court's instruction upon this point was as follows: "It will be for you to say as to whether, taking everything into consideration-the entire surroundings, the entire evidence in the case it was the contemplation of the parties, according to this contract, that the plaintiffs in this case were to assume and bear the burden of any loss that might result because of the increased danger to the defendant by putting in and operating these two new side tracks; and if this loss, as I say, was caused by reason of the proper operation and necessary management of cars on those two tracks, or either of them, why, the plaintiffs haven't any right to complain | in this case; and in that case, if you so

find, and find that is established by the evidence in this case-by a fair preponderance of it-the plaintiff cannot recover." The plaintiffs did assume the increased danger, and the exemption from liability agreed upon was not limited to losses caused by the "proper operation and necessary management of its cars." There was no ambiguity in the contract, and its construction belonged to the court.

2. The court also erred in leaving to the jury the question of whether the destroyed property was situated in the vicinity of the side tracks. The contract is explicit upon this point. It releases the defendant from all liability for loss by fire of any property "situated or hereafter placed in the vicinity of said side track, whether such loss result from negligence or other cause." It needs no authority to sustain the proposition that this property was situated in the vicinity of the track. The fire was started at a point about 40 feet from the track. Sawdust, shavings, and dry pieces of boards were situated upon the property at this point, and be tween that and the lumber piles, 400 feet distant. The lumber piles were situated very near the track, at a point further north. The plaintiffs assumed the duty to keep their grounds in safe condition, and released defendant from all liability on account of fires that were due in whole or in part to the condition of the grounds. This property was situated on these grounds. The contract clearly recognized that the entire premises of the plaintiffs were adjacent to and in the vicinity of these tracks. Did they intend to leave it to a jury to say that property 30, 40, or 500 feet from these tracks, and situated upon the premises, was not upon land adjacent to and in the vicinity of the tracks? Such a contention, in my opinion, finds no basis either in reason or authority. Construing these expressions according to their common and approved use, the entire territory covered by this fire was in the vicinity of these tracks. See Timmerman v. Dever, 52 Mich. 34, 17 N. W. 230, 50 Am. Rep. 240. In People v. White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L. R. A. 722, the term "vicinity," used in the opinion, was clearly intended to include all such persons as were near enough to be affected injuriously by the business sought to be prohibited. See, also, Langley v. Barnstead, 63 N. H. 246; State v. Jungling, 116 Mo. 162, 22 S. W. 688; Coyle v. Railroad Co., 27 Mo. App. 584. The combustible character of the materials which the plaintiffs put upon these premises, in close proximity to the track, and the danger in any high wind and dry time to the property. if a fire should occur, were known to both parties, and it was in relation to these and other circumstances that they used the term "vicinity."

3. By the contract, plaintiffs assumed the duty and agreed to keep the adjacent grounds on each side of the tracks "reasonably free

and clear of inflammable and combustible material, so as to prevent starting by fire, by means thereof, to the property of the second party and others, as well as to the property of the first party." The plaintiffs, in fact, did nothing to comply with this provision of the contract. Their conduct was the - same as if no contract existed, and there = was no danger of fire. The most inflammable material was left close alongside the tracks, and when, from whatever source, the fire caught, it was in a few moments beyond 1 control. Plaintiffs knew that this material was very dry, that there was a very high wind, and that from even well-equipped and well-managed engines sparks do escape. This material, to a depth of nearly a foot, had been lying at the place where the fire caught for nearly a year, and between that and the lumber piles they had meanwhile been drawing and dumping the same kind of inflammable material-shavings, sawdust, and small pieces of boards. Did this contract: mean that it was to be complied with by distributing this most inflammable material close to the defendant's tracks, without any covering or other means of protection? If it did, then this clause of the contract is meaningless, and imposed no duty upon the plaintiffs. So inflammable was the material, that, in the high wind then prevailing, plaintiffs' witnesses described it as "jumping right ahead. Something would fly in the air all on fire. It would take it up and carry it 20 or 30 feet at a time-faster than we could follow it up. It catched from one place to another." Did plaintiffs contract to do nothing more than to place this material there and leave it? At a very small expense it could have been covered with sand or dirt or cinders for a sufficient distance alongside the track to prevent fires. Or, as we know is often done, barrels of water could have been kept in such dangerous places near the track, ready for instant use. Or, knowing the increased danger on account of the wind, and the extreme dryness of the combustible material, a man could have been employed to watch during the short time used in switching. According to the plaintiffs' own witnesses they knew that fire escaped from this engine several days before, and had set fires alongside the track; they knew that the wind, as one of the witnesses said, "was blowing a gale"; and yet they ordered the defendant to enter upon the premises to do the work under the contract. It seems to me too clear for further argument that plaintiff's did not comply with the contract, and that they failed to do the very things which the contract contemplated they should do, and which, if done, would have avoided the loss. It is no reply to the obligation of the plaintiffs under this contract to say that it is customary for mills like that of the plaintiffs to scatter this combustible material about their yards. Let this be granted, and it follows that this is the very condition

against which the parties contracted, and imposed upon the plaintiffs the duty to obviate the danger and to assume the risk. If this mill had been the property of the defendant, and the land where the lumber was piled that of plaintiffs, and the fire had caught in this material upon the defendant's land, and spread to the lumber piles on the adjoining land, the railroad company could not have defended upon the ground that they used an approved engine and managed it properly. It would have been negligence to leave such inflammable material in close proximity to passing trains, which are apt, especially in cases of high winds, to set fires. Yet plaintiffs ask the court to hold that they were complying with this contract by dumping this material where they knew that fires are apt to occur, and they took not even the slightest precautions to prevent it. It is too clear to require argument that a very small expense would have prevented the fire.

4. It is also urged that exemption from liability is, under the contract, limited to the two side tracks which the defendant agreed to, and did, construct. The side tracks were contracted for with the knowledge that they would be useless unless they were used in connection with the South Horn track and the brewery track. The greatest danger from fire was along the west side of the South Horn track. There plaintiffs deposited their most inflammable material. It was under the instruction of the plaintiffs that the defendant's engine entered the premises, and it was taken there solely to do their work. It was while it was engaged in this work that the fire occurred. The engine would not have been upon plaintiffs' premises but for these side tracks. Plaintiffs' foreman gave the instruction; jumped onto the engine at the southerly end of the mill on the South Horn track; rode down past the switch, and up the brewery track, and onto the east side track, where he jumped down and entered the mill. Under the plaintiffs' contention, the defendant would be liable if the fire escaped a moment before it entered the side track B21; or, if it escaped when within an inch of the switch, but the moment that it passed beyond the switch, or outside the South Horn track, the exemption would apply. This side track and the South Horn track are very near to each other for the whole distance of the side track. Is it reasonable to suppose that the defendant, in putting in this side track, agreed that it would be exempt only for a less and comparatively slight danger, and should be liable for the greater danger? We think the fair construction of this contract is that the defendant was to be exempt from liability while entering upon the South Horn track or upon the brewery track in connection with, and for the express purpose of, using these side tracks in the business of, and solely for the use of, the plaintiffs, and under their direction.

5. As already stated, plaintiffs' foreman had knowledge of the fact that this engine threw sparks; yet he made no complaint, and instructed defendant's employés to bring this engine upon plaintiffs' property for use when there was the greatest liability to fire. Plaintiffs' foreman, who represented them, testified: After jumping onto the engine, "I spoke to the engineer about being careful about working his engine. I told him we had had a fire the day preceding, and the Saturday before that, right after his engine went by, and I told him-the wind was blowing very hard, and it was very dry-I would like to have him be careful working his engine in going by the corner. He gladly told me he would do so." It thus conclusively appears that plaintiffs, according to their own testimony, knew that this engine threw sparks; that it was apt to set fire; that they not only made no objection or protest, but, with full knowledge of the facts, not only invited, but directed, the defendant to bring it upon the premises to do their work, and at a time when the danger was greatly increased by the wind blowing, as this witness said, "a gale." The engine was properly managed, as the jury have found, and was therefore managed as plaintiffs, through their foreman, requested it should be. These facts bring the case within the rule of M., H. & O. R. Co. v. Spear, 44 Mich. 169, 6 N. W. 202, 38 Am. Rep. 242; Spear v. Railroad Co., 49 Mich. 246, 13 N. W. 610. In that case the same defect was claimed as in this, with the same result following, namely, throwing sparks which caused fires. In that case Mr. Spear called the attention of the proper railway officials to this fact, and they promised to fix it, but "put off the fixing." In the opinion the court say: "It seems almost unnecessary to do more than to relate this evidence in order to dispose of the case. Instead of showing a cause of action, it effectually disproves the existence of one. This was not the case of a defective locomotive moving through the country and scattering desolation among those to whom its proprietors owed the duty of a care corresponding to its dangerous nature; but it was a case of private employment, whereby the proprie tors of the engine were solicited to send it upon the private business of the employers into a place where the latter well knew, and had for a long time known and understood, it was likely to do mischief." Instead of instructing the jury in accordance with that case, the court instructed them as follows: "If the conditions at the time indicated that to switch the cars on Mann, Watson & Co.'s premises would be attended with unusual risk of setting fire, it was negligence on part of the railroad company to do the switching at that time." It was not the fault of the defendant that its engine was there. It was not the duty of the defendant to refuse the use of its engine when requested. By the terms of the contract, it was bound to fur

nish it. Presumably, the plaintiffs knew the condition of the ground better than did the defendant's employés. They knew the danger, and, if they did not desire to have the work done then, it was their duty either to keep the engine away, or protect the premises from the dangers incident to its use, and covered by their contract. If either was negligent for the switching under these conditions, it was the plaintiffs, not the defendant.

Under the above disposition of the case. It is unnecessary to determine whether there was evidence of negligence to submit to the jury.

Judgment reversed, and no new trial or dered.

HOOKER, C. J., absent, sick, took no part The other Justices concurred.

LOWRY v. LOWRY et al. (Supreme Court of Michigan. Jan. 5, 1904.) DEED-REFORMATION-INSERTION OF NAME OF COMPLAINANT AS GRANTEE-EQUITY. 1. Where complainant, in an action to have his name inserted in a deed to property in the name of his deceased wife, title to which he claimed should have been taken in their joint names on account of his having furnished the purchase money, is shown to have known, soon after the deed was executed, that his wife was sole grantee therein; and it is also shown that he lived happily with her from that time until she died, 11 years later; that during this time he not only permitted her to deal with the property and mortgage it as her own, but often. if not habitually, spoke of it as hers, and denied the right of his creditors to take it in payment for his debts-he is not entitled to relief.

Appeal from Circuit Court, Washtenaw County, in Chancery; Edward D. Kinne, Judge.

Bill by John Lowry against Durward Lowry and others. From a decree for complainant, defendants appeal. Modified by consent.

Lawrence & Butterfield (M. J. Gavanaugh of counsel), for appellants. Seth C. Randall, for appellee.

CARPENTER, J. Defendant Durward is the son of complainant, defendant Eva is the wife of Durward, and the other defendant, John D., is their infant son. The bill is filed to obtain a decree changing the name of the grantee in a deed, bearing date December 26, 1889. By this deed one Catherine E. Jones conveyed a certain lot in the city of Ann Arbor to Helen M. Lowry, the wife of complainant and the mother of defendant Durward. Shortly after the deed was made, a house was erected upon the lot, and it was used as the homestead of complainant and said Helen until the death of the latter, October 31, 1900. During this time said Helen executed three different mortgages, bearing date, respectively, December 23, 1890, February 21, 1895, and September 20, 1900. Com

plainant furnished the money paid for this lot, and it is his claim that in taking the title in her own name his wife disregarded his instructions to take the title in the joint names of her and himself, and that she subsequently refused to repair the wrong done. The trial judge, after listening to the testimony, taken in open court, granted complainant relief.

There is just one question raised on this appeal, and that is whether the lower court correctly disposed of the issue of fact. Though the testimony in the case is conflicting, we are convinced that complainant knew, soon after this deed was executed, that his wife was the sole grantee named therein; that he lived happily with her from that time until she died; that during this time he not only permitted her to deal with the property and mortgage it as her own, but he often, if not habitually, spoke of it as hers, and denied the right of his creditors to take it in payment of his debts. We cannot avoid concluding from this testimony that complainant consented to the action of which he now complains, and that he was not, therefore, entitled to the decree appealed from.

Defendants' counsel does not ask that the bill of complaint be dismissed. Speaking for his clients, the adult defendants, who alone are interested in the property, he expresses their willingness that the decree should be so modified as to secure to complainant a life estate in the property, and the reversion to the defendant Durward. Under these circumstances, such a decree will be made. Defendants will recover costs of both courts, which, however, will not be enforced against the life estate of complainant. The other Justices concurred.

BALL-BARNHART-PUTMAN CO. v. LANE. (Supreme Court of Michigan. Dec. 22, 1903.) TROVER-PROPERTY SOLD BY CLERK-RECOVERY BY OWNER-PROPERTY IN CUSTODY OF ANOTHER AUTHORITY ΤΟ SELL OTHER THEFTS BY CLERK EVIDENCE- WITNESSCREDIBILITY-QUESTION FOR JURY.

1. The bare fact that the owner of property intrusts its custody to another does not give that other any apparent authority to sell to a third party and pass title.

2. Where, in trover for certain sugar sold defendant by a shipping clerk in plaintiffs' employ as his own property, the clerk testified that he stole the sugar from plaintiffs and sold it to defendant, who paid him therefor, but neither any acts of plaintiffs, nor the clerk's relations to them, were calculated to induce the belief that the sugar in their warehouse belonged to the clerk, evidence of the latter's plea of guilty to a charge of stealing other sugar at about the same time was incompetent to strengthen his testimony for plaintiffs.

3. In trover for certain sugar sold defendant by a shipping clerk in the employ of plaintiffs as his own property, the fact that such clerk had, on a previous occasion, while employed as salesman, embezzled money from plaintiffs, did not charge them with the risk of future thefts, and preclude them from reclaiming property thereafter stolen by him.

4. The clerk having testified on the trial that he stole the sugar in question from plaintiffs and delivered it to defendant, who paid him for it, the credibility of the clerk was for the jury. Error to Circuit Court, Kent County; Alfred Wolcott, Judge.

Action by the Ball-Barnhart-Putman Company against Arthur J. Lane. Judgment for plaintiffs, and defendant brings error. Reversed.

E J. Adams, for appellant. Smedley & Corwin, for appellees.

MONTGOMERY, J. This is an action of trover for 14 barrels of sugar. The plaintiffs are wholesale grocers in the city of Grand Rapids. The defendant is a retail grocer in the same city. Plaintiffs had in their employ as shipping clerk one Bert Rice. In August, 1902, Rice sold to defendant 14 barrels of sugar at 42 cents per pound. This sugar Rice assumed to own himself, stating to defendant that he had been speculating, and was unable to carry the sugar longer. On this trial Rice testified that he stole the sugar in question from the plaintiffs, and caused it to be delivered to defendant, who paid him for it. It also appears that Rice had, while employed by plaintiffs, on a previous occasion, embezzled a small sum of money, but, on his promise of reformation, had been taken back into plaintiffs' employnot, however, as salesman, but as shipping clerk. He testified that he at times at the noon hour felt it his duty to assist the regular salesmen, but that he had no directions from his employers to do so; and it does not appear that he took advantage of this circumstance to commit any fraud, or that the proceeds of such sales came into Rice's hands. Plaintiffs were allowed to put in evidence Rice's plea of guilty, entered in the superior court of Grand Rapids, to a charge of stealing other sugar at about the same time that that in question was taken. The circuit judge directed a verdict for the plaintiffs for the value of the sugar, and the defendant brings error.

Error is assigned upon rulings admitting certain testimony. These would be unimportant if the competent testimony justified the court in directing a verdict; but, as we do not so hold, we feel called upon to say that we are not able to see upon what principle the testimony of the conviction of Rice upon his plea of guilty in the superior court could be received to strengthen his testimony for the plaintiffs in this case.

The defendant contends that the case is one for the application of the rule that, "where one of two innocent parties must suffer by the fraud of a third, he shall suffer who by his indiscretion has enabled such third person to commit the fraud." And this contention presents the important question in the case. The bare fact that the owner of property intrusts its custody to another does not give that other any apparent au