saloons, and he was properly prevented at the trial from attempting to prove that the assigned cause was untrue; that he had been absent with leave and visited certain saloons on a mission of his superintendent.

Error to Ottawa; Cross, J. Submitted October 8, 1915. (Docket No. 30.) Decided December 21, 1915.

Assumpsit by Edward R. Palmer against the Locomotive Engineers' and Conductors' Mutual Protective Association on a benefit certificate. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.

Lillie & Lillie, for appellant.

Arthur P. Hicks, for appellee.

OSTRANDER, J. The certificate or policy sued upon contains the following:

"This certificate does not include nor cover any suspension or discharge not in the nature of a penalty or measure of discipline, nor any case arising from or traceable to any of the following causes or conditions, viz.: Absence from engine while in charge of same; nor for any act or acts while not in charge of your engine; use of intoxicating liquors; soliciting his own discharge or suspension; striking; garnishment; fighting; assaulting superior officers; knowingly disobeying orders or rules of traffic conditions; disregarding national or State laws; being pensioned; personal injury; physical disability or old age."

The certificate purports to have been issued in consideration of the warranties and representations made by the plaintiff in his application for membership, and a copy thereof was attached. In the application the plaintiff agreed:

"That the cause assigned by my employer for suspension or discharge shall be the sole basis of determining the liability of the association."

The cause assigned for plaintiff's discharge was

"for frequenting saloons, also leaving his engine 2381 at Grand Haven on the night of August 23d for two hours without permission from his foreman."

In his notice of claim plaintiff specified:

"I was discharged for leaving my engine and visiting saloons."

Notice of the indicated defense was given by defendant with its plea. Plaintiff sought, by recital in his notice of claim and by testimony upon the trial, to show that he left his engine by permission and visited saloons while off duty to get a certain man for investigation which was private with the superintendent; in other words, sought to show that the cause assigned by the employer for his discharge did not exist. The testimony was excluded, a verdict for defendant directed, and a motion for a new trial was overruled. Upon the authority of Stitt v. Protective Ass'n, 177 Mich. 207 (142 N. W. 1110), it is held the rulings were right.

Judgment is affirmed.

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

GERMAIN v. LOUD.

1. SALES-LUMBER-CONTRACTS-DESTRUCTION.

Where plaintiff's decedent agreed to buy certain lumber from the defendant, and nothing was expressed in the correspondence as to the time when title should pass, but an inspection, to be paid for by both parties was required, and part of the lumber was delivered upon inspection, as agreed; the contract providing that decedent should take all the lumber of a quality described or named, and where the parties recognized in subsequent dealings that the lumber had all been sold and several letters passed in which they assumed that plaintiff was the buyer, and plaintiff advanced a considerable part of the purchase price, and where it appeared that the lumber had been piled separately, the vendee was not, as matter of law, entitled to recover advances made before it was burned, but the issue was one to be determined from all the acts of the parties and their dealings subsequent to the claimed sale.

In the absence of a specific arrangement concerning the title to the property, in a contract of sale, the question whether title has passed is usually an issue of fact, to be determined from the acts done and promises made and from all the attendant circumstances.

3. SAME QUESTION OF FACT-DIRECTED VERDICT-TRIAL CONDUCT OF COUNSEL.

Both attorneys requesting the court to decide the issue as one of law, the trial judge did not err in determining the issue and in not submitting the point to the jury, although different inferences were admissible from the testimony.

Error to Saginaw; Gage, J. Submitted October 6, 1915. (Docket No. 17.) Decided December 21, 1915.

Assumpsit by Louise A. Germain, as executrix of the estate of Edward Germain, deceased, and another,

against Henry N. Loud and others, copartners, doing business as Henry N. Loud & Sons, for money had and received, etc. Judgment for defendants on a directed verdict. Plaintiffs bring error. Affirmed.

Weadock & Weadock, for appellants.

Henry, Henry & Henry, for appellees.

OSTRANDER, J. There was a contract between defendants, as vendors, and plaintiffs' decedent, as vendee, for the purchase and sale of certain lumber. The vendee made an advancement upon the purchase price. The lumber burned. The vendee sued to recover his advancement. The vendors claimed that the title to the lumber had passed to the vendee, and asked for a judgment for the balance of the purchase price. Upon the trial of the cause, both parties having rested, counsel for plaintiffs and counsel for defendants each moved for a peremptory instruction. The court thereupon said:

“I understand the position of the parties on both sides. The plaintiff in this case claims his position is that under the facts in this case it is purely a question of law for the judge, and it is the duty of the judge to direct a verdict for the plaintiff; and the defendant, on the other hand, contends that it is purely a question of law, and that it is the duty of the judge to direct a verdict for the defense on the conterclaim. If that is not your position, I want you to state it."

Counsel for both parties said that their position was as stated by the court. The court expressed the opinion that the question of the intent of the parties was involved, and was a proper question for a jury. At considerable length-the jury being absent he went over portions of the testimony and referred to authority, concluding by saying:

"That is the reason I have suggested to you before that I thought that really this was a case for the jury,

and not the court. But, as you have put it up to the court, I am disposed to decide it."

The jury having returned into court, he instructed them to return a verdict for defendants, and in doing so said, among other things:

"After examining all the correspondence in this case, and the memorandum of agreement made and offered in evidence here, and all the testimony in the case, I am of the opinion that it was the intent of both parties that all the 4-4 lumber, Norway, and all the 5-4 Norway at Loud's mill was sold to Germain, and the consequence is that at that time it was the duty of the Louds, under the memorandum of agreement, to load that lumber on the cars, but it was for Germain to pay the freight and to pay for the lumber."

Much else was said by the court which makes it plain that he regarded the question to be decided as one of the intention of the parties, to be ascertained from all of the testimony. In this court the plaintiffs, appellants, affirm that:

"There is no evidence in the record that it was the intention of the parties that the title to the lumber in question would pass to the plaintiff Germain, until it had been inspected, the kind, quality, quantity, and price ascertained, and the lumber actually delivered f. o. b. cars Au Sable."

And in the reply brief say:

"We contended in the court below, and contend here, that upon the evidence the court should have directed a verdict for plaintiff; but if we were wrong in this position, and the court was satisfied that there was an issue of fact in the case which should be submitted to the jury, we insist it was his duty to submit such question to the jury, notwithstanding the attorneys for the respective parties did make the claim for their respective clients that the verdict should be directed in their favor. Notwithstanding the claims of counsel, the court still has a duty to perform according to its best judgment, and if the court was satisfied that the case should be submitted to the jury, it cannot justify