pile to where they were used; but, as before stated, he claims to have had no experience as to lumber or its suitableness for a platform, and that he was simply carrying out the orders of the foreman. The trial judge, among other things, said to the jury:

"The employer in this case provided material as I deem it, and an experienced foreman, a man of bright intelligence, and they were all very intelligent, all understood the English language. A lumber firm was instructed to supply the material, all that was needed, and the employer thereby did his whole duty."

As before stated, a verdict was directed in favor of defendant. In doing this we think the judge erred. The case was one to be submitted to the jury under proper instructions. See 2 Labatt on Master & Servant, p. 1654; Lafayette Bridge Co. v. Olsen, 108 Fed. 335 (47 C. C. A. 367, 54 L. R. A. 33); Richards v. Hayes, 17 App. Div. 422 (45 N. Y. Supp. 234); Brown v. Gilchrist, 80 Mich. 56 (45 N. W. 82, 20 Am. St. Rep. 496); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Tangney v. Wilson & Co., 87 Mich. 453 (49 N. W. 666); McIntyre v. Detroit Safe Co., 129 Mich. 385 (89 N. W. 39); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041, 102 Am. St. Rep. 426).

It is suggested that the directed verdict should stand, though it should be found that the reason given by the judge for directing the verdict was not a good one, as under the law of Canada the plaintiff cannot recover. An answer to this suggestion is found in the fact that no proof was made in the lower court as to the law of Canada applicable to the case. See Jones v. Palmer, 1 Doug. (Mich.) 379; Crane v. Hardy, 1 Mich. 56.

Judgment is reversed, and new trial ordered.

BLAIR, C. J., and GRANT, MCALVAY, and BROOKE, JJ., concurred.

BELLOWS FALLS MACHINE CO. v. MUNISING PAPER CO.

SALES-WARRANTIES-MACHINERY-FITNESS FOR PURPOSE. Machines furnished under a contract which specified that the design, material, and labor should be the best of the several kinds for their respective uses, and that the workmanship and material should be strictly first class for the purpose and in the place where used, and that the final payment was to be made thirty days after successful operation, are required to operate successfully for defendant's purpose known to the seller, before payment can be compelled in an action of assumpsit.

Error to Alger; Steere, J. Submitted October 13, 1909. (Docket No. 65.) Decided December 10, 1909.

Assumpsit by the Bellows Falls Machine Company against the Munising Paper Company, Limited, for goods sold and delivered. A judgment for defendant is reviewed by plaintiff on writ of error. Affirmed.

Charles E. Ward, for appellant.

William P. Belden and Fred H. Berg, for appellee.

MOORE, J. The plaintiff makes, at Bellows Falls, Vt., paper mill machinery. In June, 1904, and prior thereto, the defendant was building a large paper mill at Munising, Mich. It desired a double drum slitting and winding machine. The plaintiff had a voluminous correspondence with defendant, which resulted in the making of a written contract in June, 1904. The machines were furnished and put in place. They were partially paid for. The defendant claimed they did not meet the contract requirements, and could not successfully be operated, and declined to make the final payment for them. The plaintiff brought this suit to recover for the final payment. The defendant pleaded the general issue, and gave notice

of recoupment. The claims of the respective parties will appear more in detail later on. The jury returned a verdict in favor of defendant. The case is brought here by writ of error.

Those portions of the contract which are material here are as follows:

"The party of the first part hereby agrees to furnish all labor and material required for the complete delivery f. o. b. cars Bellows Falls, Vermont, of the machinery described in the accompanying specifications, which are hereby made a part of this agreement.

*

* * *

"ARTICLE 2. The party of the second part hereby agrees to pay the said party of the first part for work and material as set forth in article 1, the sum of two thousand dollars. * Sixty-five per centum of the contract price on receipt of bill of lading. Balance, thirty days after successful operation of the machinery and acceptance by the architect, provided however, that the final payment shall be made not later than four months from the date of receipt of said bill of lading.

* *

"ARTICLE 4. This agreement shall supersede all previous agreements, if any, that may have been entered into between the parties hereto; such previous agreements, if any, being void, and of no effect.

* * *

"GENERAL CONDITIONS. These specifications are for furnishing f. o. b. cars Bellows Falls, Vermont, the machinery hereinafter specified and described. The design, material and labor embodied in this contract, unless specified to contrary, are to be the best of the several kinds for their respective uses and subject to the approval of Joseph H. Wallace, New York City, hereinafter referred to as 'the architect,' and to his authorized representative. * * * "GUARANTY. The contractor guarantees the workmanship and material to be strictly first class for the purpose and in the place where used.

* * *

"CONSTRUCTION. The construction throughout is to be first class in workmanship and material, and the machine set up and tested in shop before shipment.'

The plaintiff introduced in evidence a large quantity of correspondence leading up to the giving of the contract, and also gave oral testimony. An example is found in the testimony of Mr. Babbitt, the secretary, treasurer, and

manager of the company, as follows, on his direct examination:

"Q. What can you say, Mr. Babbitt, about the use and purpose that these machines were to serve being explained to you before you commenced making them for the defendant company?

"A. That I understood nothing further with reference to the use to which they were to be put than as appears from the correspondence, and from having read the accounts in one or two of the trade papers of the Munising Company's plant, and suppposing they would be put to the regular purpose of a double drum slitting and winding machine, as such machines are commonly and ordinarily used in the trade, or in the manufacture of paper.

On the cross-examination as follows:

"Q. You made the claim that you were entitled to collect the balance whether the machines would operate or not, did you not?

66

A. I think I maintained the claim that, if the machines were in accordance with the contract, I was entitled to collect; the contract didn't provide for operation.

"Q. Is it your claim with reference to this contract that you are entitled to recover in this case entirely independent of the question of whether or not the machines can be successfully operated?

"A. No; not independent of whether they can be or not; if operated under proper conditions.

"Q. Then you would say that you were not entitled to the balance unless the machines could be successfully operated?

"A. I should say I would not unless they could be successfully operated under proper conditions."

The assignments of error all relate to the charge of the court, or its failure to charge as requested by counsel. We quote from the charge as follows:

"There are many things in the case which are undisputed, and which, of course, starting out in the consideration of the issues which are in controversy, you take as true and as the basis from which to explore and canvass the grounds of contention. It is undisputed that these two machines were ordered by the defendant from the

plaintiff after considerable correspondence and negotiations, and that finally a written contract was entered into, a contract which superseded all previous contracts, understandings, agreements, and negotiations which had been had. That contract was entered into on the 15th day of June, 1904. Following that, it is undisputed that these two machines were constructed by the Bellows Falls Machine Company, and were placed on board the cars there, shipped to, and received by, the Munising Paper Company at this place, and were received apparently in good condition. It is undisputed that the defendant set up those machines and tried to operate them, and that they did not operate successfully. It is undisputed that complaint was made to the plaintiff, and the plaintiff sent agents on to work upon the machines and endeavor to make them a success, and it is conceded that they were not run successfully in the defendant's mills. Following that, it is undisputed that the defendant, claiming the machines could not be made to work, boxed up the various parts, put them in condition for storage, and stored the two machines on its premises, notifying the plaintiff of that fact, and repudiating the contract, or, rather refusing to accept the machines they were furnished under the contract.

"The real issue, to state it concisely in the beginning of this charge, is whether or not these machines were of workmanship and material which were strictly first class. for the purpose and the place where they were to be used. The question is whether the design and the material and the labor were the best of the several kinds for their respective uses. And the question in that connection is, Could they, as such, be successfully operated for the purposes for which they were constructed?

"Taking up the various requests which we have before us, you are instructed that it is the claim of the plaintiff that they were to furnish certain machinery to defendant, and were to receive in consideration a certain price therefor. The machinery was to be furnished, and the price paid, according to the terms of a written contract and specifications, which have been offered in evidence in this case. The plaintiff claims that the design, material, and labor used in the making of the machines were the best of the several kinds for their respective uses, and that the plaintiff furnished, at all times during the construction of this machinery, sufficient space and proper facilities for