"Where A., with B.'s assent, buys goods (in his own name) for B., but pays the price out of his own money, the property will vest in him, and will not be divested, though a bill of sale be afterwards executed (by the vendor) to B.; but, if the bill of sale had been so executed at the time of the sale to B., the property in the goods would have vested in him.' 12 Modern Reports, 344.

"At the instance of her husband, with her knowledge and approval, the sale was made to her, the title was passed to her, and the delivery of the article was also made to her. She received and accepted the benefit of it. Manifestly it was the understanding and expectation that her husband would pay for it and make her a present, not of the car, for she already had title to that, but of the purchase price. The expectation that another will pay for an article does not relieve the actual purchaser from that obligation.

66

Judgment will be entered in favor of plaintiff for the purchase price of the touring car."

Defendants excepted to these findings and conclusions, and have assigned errors thereon, and also upon rulings of the court on evidence. In the brief filed two propositions are relied upon:

(1) That the testimony of plaintiff concerning statements of the husband were not admissible to establish agency without further proof.

(2) That the essential findings of fact and conclusions of law were not warranted by the evidence.

We find from the record, which is certified to contain all the evidence in the case, that there was other evidence in the case of the husband's agency besides plaintiff's testimony as to the husband's statement, as appears from defendant's testimony, also from the receipted bill in her name received by her, and the transfer of stocks from the husband to the plaintiff, both made on the date when she was present with her husband and plaintiff, and the transaction was rehearsed in her presence, and, as she testifies, "The final deal for this automobile was concluded." It is not necessary to quote from the record. The fact upon this question as found by the court is supported by evidence. It was not error to refuse defend

57 MICH.-87.

ant's motion to strike out plaintiff's testimony, and to refuse to find for defendant as requested. The rule is so well settled that the findings of fact are conclusive where supported by any evidence that the citation of cases is unnecessary. An examination of all the evidence in the record shows that all the facts found by the court were supported by evidence, and that the conclusions of law are warranted by such findings.

We find no errors in the case. The judgment should be affirmed.

J.

MOORE and BROOKE, JJ., concurred with MCALVAY,

OSTRANDER, J. It seems to me that the testimony, all of which appears in the bill of exceptions, tends to establish one fact, which is that defendant's husband purchased from the plaintiff an automobile in his own behalf upon his own credit. There was no testimony tending to prove that in purchasing the automobile he was acting as agent for his wife. The fact that he told the vendor he proposed to give the automobile to his wife as a present has no probative force in establishing agency. The fact that at the request of the husband a statement was made on a billhead used by plaintiff, reading, "Mrs. S. G. Abbott *. * * to Benjamin Gero, Dr.," etc., is not significant of agency in view of the further fact that the bill was receipted by the plaintiff. The fact that the wife, to the vendor's knowledge, knew of the transaction is, in view of other testimony, conclusive of the other fact that plaintiff sold the machine to the husband, and not to the wife, and not to the husband for the wife.

The judgment is reversed, and no new trial granted. BLAIR, C. J., and GRANT, MONTGOMERY, and HOOKER, JJ., concurred with OSTRANDER, J.

SABIN v. NORTHWESTERN LEATHER CO.

MASTER AND SERVANT WARNING AND INSTRUCTING EMPLOYÉ — DEFECTIVE MACHINERY-ASSUMED RISK.

Negligence, the risk of which a servant does not assume, is inferable from evidence that a polishing machine on which plaintiff, a boy of sixteen, was working, suddenly and unexpectedly caught leather which he was polishing, jerking the plaintiff into the machine; that although it had jerked at previous times as other machines did, it was worse than the others and got out of order more frequently, and that although the defects were known to the plaintiff, he had received no warning concerning the danger, or instructions how to avoid it.1

Error to Chippewa; Steere, J. Submitted February 17, 1909. (Docket No. 103.) Decided July 15, 1909.

Case by Roy Sabin, by next friend, against the Northwestern Leather Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of Affirmed.

error.

Fred L. Vandeveer (Horace M. Oren, of counsel), for appellant.

Sharpe & Handy, for appellee.

OSTRANDER, J. There are two counts in the declaration. In the first it is alleged that the defendant

"Negligently set the plaintiff to work on said machine without instruction as to the safest and best methods of handling such work and neglected to warn him of the dangerous condition of the said machine, and unreasonably required the plaintiff to finish 1,000 hides per day, and failed and neglected to keep said machine in reasonable repair, but permitted the same to get out of repair in 'As to master's duty to warn and instruct servant, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 33.

such a manner that the undersurface of said polisher was uneven and rough, and the pressure of the polisher upon the leather as it passed through the said machine varied greatly, and became much greater at some times than at others, with the result that the motion of the said polisher and its coming in contact with the leather in the hands of the plaintiff had the effect to jerk the leather violently, by reason of which on, to wit, the day and year aforesaid, without any fault or negligence on the part of the plaintiff, and while he was carefully attending to his duties as usual, the leather in the hands of plaintiff suddenly received a violent jerk, and plaintiff was jerked or thrown suddenly forward, and his left hand was caught by the said machine," etc.

In the second it is alleged that:

66 The machine on which plaintiff was put to work consisted of a flat surface or table, and above and suspended over such table an iron smoothing and polishing apparatus, hereinafter called the polisher, attached to and operated by an arm, so connected as to give such polisher a rapid rotary motion, such motion raising the polisher from the table a few inches, bringing it forward towards the person in charge, then dropping it upon the leather as it lay upon the table and then drawing the polisher away from the operator along the surface of the leather, the friction drawing such leather gradually through and under such polisher, and by means of the person in charge holding such leather in his hands and guiding the same, such leather was gradually exposed to the action of such polisher until the whole surface thereof was smoothed and polished, when it was removed and another hide substituted. It was well known to defendant that the machine on which plaintiff was put to work was not in good repair, and was defective in its construction, so as to render it dangerous to work upon, and would frequently get out of repair very suddenly, in such a manner that the friction of the polisher upon the leather in the hands of the operator was suddenly greatly increased, and the machine would jerk the leather violently and suddenly, sc that, either the leather would be jerked out of the operator's hands, or, if the operator had a firm hold upon such leather, he would be jerked forward towards such machine. Plaintiff alleges that it was the duty of the defendant to repair or rebuild such machine, and to place

the same in reasonably safe condition to operate, and to warn the plaintiff of the dangerous condition of such machine, and instruct him how to operate the same safely, and warn him of the danger of being jerked forward by such machine, and getting his hands into said machine, yet the said defendant, well knowing the premises, failed and neglected to perform its said duty to plaintiff, and failed and neglected to rebuild or repair the said machine so as to render it safe for use, and failed to warn plaintiff of the dangerous condition of said machine, and failed to warn plaintiff of the danger of being jerked towards or into said machine, and how to guard against the danger of being drawn or jerked into said machine, by reason of which the plaintiff, without any fault or negligence on his part, and while engaged in his usual duties in running such machine, was suddenly jerked forward by the unusual friction of such machine, and plaintiff's fingers of his left hand were caught in such machine," etc.

If defendant was negligent in not instructing the plaintiff, it was because there was something peculiar about the particular machine, something in its condition, or in the manner in which it performed, which raised the duty to give other or further instructions than were required to be given to one operating a like machine in good repair. It is therefore necessary to examine with care the testimony concerning the condition of the machine and the way it performed in operation.

There is no testimony tending to prove that the "undersurface of said polisher was uneven and rough." There is no testimony tending to prove that the machine was defective in construction, or that it was out of repair in the sense that any necessary part was wanting or was imperfect.

The machine, called a jack, was one of seven; was of standard make; adapted to the purpose for which it was used. It was used to smooth and polish hides of leather called "splits." In its operation an arm carrying at its head a plate, called the polisher, moved towards the front of the machine, descended to and struck an inclined