directing a verdict for the defendants, because the plaintiff, too, had asked a verdict directed for it. We now claim that if, on all the evidence in the case, this court should find there was a question of fact which should have been submitted to the jury, the judgment should be reversed."

The errors relied upon are based upon the charge and the direction of a verdict for defendants.

Unless the parties to a contract for the sale of personal property, not paid for and not delivered, have specifically agreed that the title thereto shall or shall not pass, the question whether title has passed to the buyer is one of intention, to be gathered from all the circumstances attending the bargain. It is a question of fact, to be answered by construction of whatever agreement was made. In construing the agreement of the parties, the courts indulge various presumptions, none of them conclusive, and it sometimes occurs, the terms of the contract and the acts of the parties with reference thereto and to the subject-matter being undisputed, that the courts are able to and do determine the question. Instances are: Whitcomb v. Whitney, 24 Mich. 486; Carver v. Sherman, 172 Mich. 264 (137 N. W. 519); Tyler Lumber Co. v. Charlton, 128 Mich. 299 (37 N. W. 268, 55 L. R. A. 301, 92 Am. St. Rep. 452). There is no occasion to attempt to restate or to amend the statements of the controlling rules found in Lingham v. Eggleston, 27 Mich. 324, and in Byles v. Colier, 54 Mich. 1 (19 N. W. 565).

In the case at bar, there was no specific agreement about the title to the lumber. The intention of the parties, a fact, is to be found in the terms of the bargain they made, the circumstances attending its making, and the acts of the parties. There is no occasion to set out in detail the history of the transaction. It covers a period of more than two years. Early in the year 1909 a contract was made for the purchase and sale of all of certain lumber, dry and in piles. Telephone

conversations regarding the arrangement occurred, but because of the death of Mr. Germain before trial what was said is not before us. For various reasons the lumber was not all of it shipped, and some of it was sold to other parties by the vendors, with the approval and presumably by the direction of the vendee. But, repeatedly, both parties to the agreement recognized the fact that the lumber, the quantity having been estimated, was sold to Mr. Germain. In 1911, under date of February 6th, a writing was made, signed by both parties, reading as follows:

"To H. M. Loud Sons' Company:

"Agreeable to conversation we had with Mr. E. F. Loud, we learned that there is still about 80,000 feet or less of 4-4 Norway and tamarack, about 167,000 5 4 Norway, with a small percentage of tamarack, at the mill left unshipped on purchase made some time ago, which was purchased at the price $14 for the common and better Norway, $10 for the culls, Norway, and $12 common and better tamarack, and $8 for the culls-above prices f. o. b. Au Sable, Michigan. We agree to pay $2,000 on or before May 1, 1911, and balance to be paid on or before June 1, 1911, and, if lumber is not all shipped, settlement to be made based on average value of lumber, based on the above prices, and final adjustment to be made when lumber is all shipped. It is also understood that we will use our very best efforts to ship this lumber at an early period. In the event of lumber being moved, payment to be made on 10th of month following, net."

An inspector was agreed upon, and he inspected whatever lumber was shipped after this agreement was made; each party paying one-half the inspection fees. Evidence of the intention of the parties is to be found in the agreement above set out, and in the fact that it was made after the vendor had insisted upon some completion of the original agreement. Under date of January 13, 1910, the vendors (defendants) had written to the vendee (plaintiffs' decedent) as follows:

"Last March we entered your order for all the 4-4 and 5-4 Norway which we had in stock at that time. This order included the 4-4 and 5-4 tamarack that was filled in with the Norway. On this order we shipped 107,345 feet of 4-4 and 99,774 feet of 5-4. There still remains unshipped, as near as we can estimate, 216,000 4-4 and 167,000 of 5-4. You stopped us shipping in May last, and, although we have repeatedly asked that you allow us to resume shipment, you have for one reason or another refused to allow us to do so. We have for a long time felt that you were abusing our good nature in this matter, and, while we have tried to have patience, we have arrived at a point where we feel that something must be done. We must either have a check for the lumber, or you must take it in at once. Otherwise we must take some steps to obtain our rights, whatever they may be. Please let us hear from you at once, and oblige."

No objection was made to the recitals contained in this letter, but the answer, dated January 22, 1910,

was:

"Replying to yours of the 13th, regarding the 4-4 and 5-4 Norway and tamarack, which you have for us, beg to ask what percentage of tamarack there is in this stock, and when the lumber was shipped, and, would you be willing to separate the Norway from the tamarack in loading? We understand from your letter that the 216,000 feet of 4-4 and 176,000 feet of 5-4 covers both the Norway and tamarack.”

There was further correspondence. The vendors again insisted upon shipping orders, conversations were had, and finally the written memorandum of agreement was made. Under date May 29, 1911, the vendee paid the $2,000. Further evidence of the intention of the parties appears. The original order given by the vendee was for all of the lumber described in a memorandum made by the vendors' agent and submitted to Mr. Germain. The estimated quantity was stated. This lumber was piled separately from other lumber-was identified. Before February 6, 1911, the

vendee had received and paid for a considerable quantity of it. He therefore knew its quality. What remained to be done, after February 6, 1911, was to inspect the remainder as it was loaded upon cars, and, if it was not shipped, it was nevertheless to be paid for by the vendee, as per the memorandum of agreement. Prices had been agreed upon; an inspector mutually selected. Nothing was left to further agreement; nothing but to load the lumber as it was called for by the vendee was to be done by the vendors.

I am of opinion, therefore, that there was evi'dence that it was the intention of the parties that it was understood and agreed that title to the lumber passed to the vendee and that the understanding was mutual before and after February 6, 1911. While, perhaps, different minds might be differently affected by the testimony which is substantially undisputed-diferent minds might draw different inferences-counsel for both parties requested the court to decide the controlling question, and it was not error for the court to do so. Culligan v. Alpern, 160 Mich. 241 (125 N. W. 20). Whether we say it was decided as a question of law or one of fact is not very material. Counsel for appellants insists here that a verdict should have been directed for his clients. That it would have been error to do so, I have sufficiently pointed out.

The judgment is affirmed.

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

HENRY v. MICHIGAN CENTRAL RAILROAD CO.

RAILROADS-DUTY TO LOOK-CONTRIBUTORY NEGLIGENCE-INFANTS -PERSONAL INJURIES-KNOWLEDGE OF DANGER.

Plaintiff, a boy of nine years and six months, who looked only one way in crossing defendant's three tracks, and, after a train had passed on one of them, attempted to go across and was struck by a train that approached from the other direction, where he had passed over the crossing frequently, knew the danger at the same and realized that it was his duty to look out for trains, etc., could not recover for the injuries that he sustained; he should have been held guilty of contributory negligence by the trial court, as matter of law.

Error to Bay; Connine, J., presiding. Submitted October 19, 1915. (Docket No. 8.) Decided December 21, 1915.

Case by John E. Henry, by his next friend, against. the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings.

error. Reversed; new trial refused.

George M. Humphrey (Cooley & Hewitt and Humphrey, Grant & Humphrey, of counsel), for appellant.

Defoe, Hall & Converse, for appellee.

STONE, J. This is an action on the case to recover damages for injuries sustained by the plaintiff, an infant, suing by his next friend. The injury is alleged to have been caused on February 25, 1914, by the negligence of the defendant in the operation of one of