In Peake v. Buell, 90 Wis. 508 (63 N. W. 1053, 48 Am. St. Rep. 946), appears the following:

"The elevator was operated by the defendant's tenants, and not by him. The defendant owed the deceased no duty in respect to the operation of the elevator. To constitute actionable negligence, the defendant must be guilty of some wrongful act or breach of positive duty to the plaintiff. Griswold v. C. & N. W. R. Co., 64 Wis. 652 [26 N. W. 101]; Cole v. McKey, 66 Wis. 510 [29 N. W. 279, 57 Am. Rep. 293]; Dowd v. C., M. & St. P. R. Co., 84 Wis. 116 [54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917]; Goff v. C. R. & M. R. Co., 86 Wis. 245 [56 N. Ŵ. 465].”

There is a discussion of the doctrine of respondeat superior in Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81), that is helpful. See, also, Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Daugherty v. Thomas, 174 Mich. 371 (140 N. W. 615, 45 L. R. A. [N. S.] 699, Am. & Eng. Ann. Cas. 1915A, 1163); and Janik v. Motor Co., 180 Mich. 557 (147 N. W. 510, 52 L. R. A. [N. S.] 294).

In the instant case the condition of the elevator was good at the time it was delivered by the landlord to the Fellowcraft Club. From that time the obligation to keep in repair was upon the Fellowcraft Club. The elevator was in its charge. If the deceased had any right upon the elevator it was because he was helping to deliver the beer to the Fellowcraft Club by means of an elevator that was in its control and operated by its employee. Under these circumstances we think it should be said as a matter of law that the Palmer Estate is not liable, and that a verdict should have been directed in its favor.

The defendant the Fellowcraft Club urges many assignments of error, some relating to rulings upon the admission of testimony, some relating to the refusal to give requests, and some to the charge as given. We

think it was not error to refuse to charge there could be no recovery against the Fellowcraft Club. As we have seen, the testimony was in sharp contrast, and presented an issue of fact for the jury.

It is said the court erred in striking out the testimony of Mr. Kottlefski as to what he said to the elevator man just before he started the elevator. In this connection it should be recalled that the deceased was under the direction of this witness, and according to his testimony had nothing to do with placing the half kegs of beer upon the elevator, and was directed by the witness to remain with the horse. The testimony stricken out was not only part of the res gestæ, but it bore directly upon the question of whether the elevator man was negligent. He had been called to bring the elevator to the opening that the two kegs of beer might be delivered, presumably he knew Mr. Kottlefski was in charge of that delivery, and when the beer was upon the elevator he heard the direction given to the deceased to remain with the horse, and was then told by Mr. Kottlefski "to let her go." We think it was error to strike out this testimony.

The court was requested to charge there was no testimony that the injury to deceased was caused by a want of repair in the gate or elevator. The court declined to give these requests, and charged the jury at great length upon the duty of each of the defendants to keep the gate and the elevator in repair. We have already quoted the substance of the testimony given by those who claimed to have seen the accident. This testimony made the issue a very simple one. Was the elevator started when the deceased having the right was getting upon it as claimed by the witnesses for the plaintiff, or was he directed by one having the right to direct him to remain with the horse, as claimed on the part of the defense. We think the lengthy charge of the trial judge upon the duty of repair tended to con

fuse the simple issue. See Hall v. Murdock, 114 Mich. 233 (72 N. W. 150).

The charge was a very long one. In it appeared the following:

care.

**

"The persons having charge or control of the maintenance and operation of this elevator were bound to use and exercise that care and caution to prevent injury to passengers upon this elevator that an ordinarily prudent person under like circumstances would use, having in mind the nature, kind, character, and construction of the elevator, and the presence or absence of danger under all the surrounding facts and circumstances in this case. This may be said, under the circumstances in this case, to be a high degree of The deceased was required to use and exercise such reasonable care as a person of ordinary prudence would exercise under like circumstances for his own safety. But, under ordinary circumstances, an open door at a stationary elevator constitutes an invitation to all persons desiring and entitled to do so, to enter or leave at will, and the plaintiff's intestate, Adam Sikora, had a right to assume if the door or entrance to the elevator was open and the elevator was at a standstill, that he might enter the elevator safely. And under such circumstances the plaintiff's intestate was not charged with the duty of stopping to look, to listen, or to make a special examination."

The use of the words, "This may be said under the circumstances in this case to be a high degree of care," "and under such circumstances the plaintiff's intestate was not charged with the duty of stopping to look, to listen, or to make a special examination," placed too high a duty upon the defendant the Fellowcraft Club, and too little responsibility upon the part of the deceased. The charge also ignored the testimony to the effect that deceased was told to remain with the horse. See Henson v. Beckwith, 20 R. I. 165 (37 Atl. 702, 38 L. R. A. 716, 78 Am. St. Rep. 847); Bennett v. Butterfield, 112 Mich. 96 (70 N. W. 410); Hall v. Murdock, 114 Mich. 233 (72 N. W. 150); Patterson v. Hemen

way, 148 Mass. 94 (19 N. E. 15, 12 Am. St. Rep. 523). We do not think it necessary to discuss the other assignments of error, as they are either not well taken, or will not occur again.

Judgment is reversed, and a new trial ordered.

BROOKE, C. J., and PERSON, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

LERNER v. HARVEY.

PROPERTY-SALE-PRINCIPAL

AND AGENT

1. BROKERS-REAL COMPENSATION. Plaintiff, who was engaged in the business of real estate brokerage, interviewed defendant as to the sale of a certain terrace owned by defendant, who fixed a price of $18,000. Plaintiff stated that he would expect a commission. Defendant asked how much and the reply was three per cent. Defendant said he thought two per cent. was sufficient on so large a transaction. No writing was made. The plaintiff introduced one of his customers to defendant, who declined an offer of $15,000 for the realty, saying that $17,000 was the least he would accept. Defendant claimed that he only agreed to pay the commission if plaintiff secured a price of $18,000 for the property. Over a year later defendant sold the terrace to the said purchaser at $17,000. In defense of an action for the commissions for making the sale, it was urged that the contract had terminated by lapse of time. Held, that the conflicting testimony with regard to the terms of the oral contract presented a question of fact and whether or not the plaintiff was the procuring cause of the sale was for the jury.1

'As to when real estate broker is considered as procuring cause of sale, see note in 44 L. R. A. 321.

2. SAME MODIFICATION OF PRICE-COMMISSION. The fact that the owner finally sold the property at a price $1,000 less than the agreement called for was not conclusive of defendant's right to a verdict, upon testimony of the plaintiff that he had general authority to secure a customer ready and willing to purchase the property and that defendant fixed the price at $18,000, later reducing it to $17,500 and, finally, to $17,000; if the jury believed plaintiff's version their verdict was warranted.1

Error to Wayne; Mandell, J. Submitted October 11, 1915. (Docket No. 6.) Decided December 21, 1915.

Assumpsit in justice's court by Abraham Lerner against Fred C. Harvey for broker's commissions. From a judgment for plaintiff defendant appealed to the circuit court, where plaintiff obtained a judgment. Defendant brings error. Affirmed.

William W. Wicker, for appellant.
John D. Harger, for appellee.

STEERE, J. Plaintiff recovered from defendant in the circuit court of Wayne county a verdict of $340 as commission on the sale of certain real estate. The action was commenced in justice's court, and pleadings were oral. Plaintiff declared in assumpsit on the common counts, and defendant pleaded the general issue. The property sold was a terrace of six houses and the land on which they were located, upon Theodore street in the city of Detroit. It belonged to defendant and was sold to a man named Lieberman for $17,000. Plaintiff's bill of particulars was for a commission of 3 per cent. of that amount. Defendant's most prominent assignments of error relate to refusal of the court to grant his motion for a directed verdict

'The effect upon the right to commission of fact that owner sells to brokers' customer at reduced price is discussed in notes in 15 L. R. A. (N. S.) 272, 34 L. R. A. (N. S.) 1050.