county, Mich. The plaintiffs were engaged in buying logs from the various settlers, and other persons having them for sale, in the town of Clearwater in the years 1905 and 1907. Two of the contracts under which the logs were purchased were in writing and were as follows:

"This agreement, made this 20th day of November, A. D. 1906, by and between James G. Getty of Barker Creek, Mich., of the first part, and James Gow and John Campbell, a copartnership under the name of Gow and Campbell, of Muskegon, Mich., of the second part,

"Witnesseth, the said party of the first part covenants and agrees to and with the party of the second part in consideration of two hundred dollars ($200) this day advanced to said first party by said second party to purchase the land described as the northeast quarter of the northwest quarter of section thirty-three (33), town twenty-eight (28) north, of range eight (8) west, to deliver all the timber on the above-described lands, of the following kinds, and at Clay, on the P. M. R. R., f. o. b. cars, as hereinafter stated, to wit: The dead hemlock at $8.00 per thousand feet, cedar at $9.00 per thousand feet, maple at market price per thousand feet, beech at market price per thousand feet, ash at $11.00 per thousand feet, basswood at $15.00 per thousand feet, birch at $9.60 per thousand feet, on or before April 1, 1907, and live hemlock at $10.00 per thousand on or before June 15, 1907. Cars to be furnished by first party and logs to be scaled at reasonable intervals. The loading conditioned on ability to get cars. Payment to be made as follows: $3 per M. on skids and balance, after reserving the $200 advanced and $1.50 for loading on cars, when logs are on the banking ground.

"It is mutually agreed that said deed shall be deposited with Wayne Simmons, to be delivered to said first party on delivery of timber as above described.

"And the said party of the second part covenants and agrees to pay unto the said party of the first part, for the same, the above schedule of prices in dollars, lawful money of the United States, as follows: When delivered on board of cars reserving therefrom the said $200 heretofore advanced.

"J. G. GETTY. [Seal.]
"Gow & CAMPBELL,

"By C. E. JOHNSON, Agt. [Seal.]"

"MUSKEGON, MICH., July 2, 1906. "I, the undersigned, have today received one hundred and fifty dollars from Gow & Campbell to apply on about ninety thousand feet logs, 50,000 feet hemlock, 40,000 feet hardwood, to be delivered f. o. b. cars at Barnes Siding, P. M. R. R., the coming winter season by April first, 1907. The timber is now standing in its natural state of condition on the N. E. of N. E., Sec. 26, 28-8 Clearwater township. Logs to be scaled in wood when cut and sided. The market price to be paid for logs when scaled and delivered on cars. One-half of the price per M feet to be paid when the logs are cut and sided and scaled, less the amount advanced, above mentioned.

"SIMEON WAY."

It was testified to on behalf of the plaintiffs, and not denied by the defendant, that all the other logs assessed were purchased by the plaintiff's agent by oral agreement, upon terms similar to those of the Getty contract. Some of these logs being piled along the railroad track in 1905 and 1907, the supervisor assessed them to Gow & Campbell. The taxes not having been paid, the township treasurer made a levy on the plaintiff's logs in Kalkaska county in April, 1908. The plaintiffs, claiming that there was no lawful authority for the 1905 and 1907 assessments, replevined the logs.

BROOKE, J. (after stating the facts). It is the plaintiffs' claim that, the logs in question, assessed to them in 1905 and 1907, having been purchased by them from the original owners to be delivered f. o. b. cars at the various sidings, title did not pass to the plaintiffs until such delivery, and that therefore the directed verdict against them should be reversed. The question involved in this case was fully considered in the case of Grand Rapids Bark & Lumber Co. v. Township of Inland, 136 Mich. 121. In that case this court said:

"Did the title pass to the plaintiff at any time before delivery on the cars? As to the lumber manufactured from logs cut from Anderson's own lands, we think it is clear that the title did not pass. As to this lumber, it re

mained to ascertain the quantity and quality, and the presumption that the intention was not to pass title remains. Lingham v. Eggleston, 27 Mich. 324; Wagar v. Farrin, 71 Mich. 370; H. M. Tyler Lumber Co. v. Charlton, 128 Mich. 299 (55 L. R. A. 301)."

It is quite clear that the title to the logs assessed did not pass to the plaintiffs until their delivery f. o. b. cars according to the terms of the contract. Under the testimony disclosed by the record the plaintiffs were entitled to'a directed verdict.

Judgment reversed, with costs of both courts, and a new trial ordered.

GRANT, MONTGOMERY, HOOKER, and MOORE, JJ., concurred.

DEARING WATER TUBE BOILER CO. v. THOMPSON.

REPLEVIN-PLEADINGS-RECOUPMENT.

Defendant, under plea of the general issue, in an action of replevin for a marine boiler and attachments, the title to which was retained by the vendor, may not recoup unliquidated damages for delay in delivery and deviation from the specifications of contract of purchase.

Error to Charlevoix; Mayne, J. Submitted January 20, 1909. (Docket No. 129.) Decided April 24, 1909.

Replevin by the Dearing Water Tube Boiler Company against Claude Thompson. There was judgment for defendant, and plaintiff brings error. Reversed.

J. M. Harris, for appellant.

Knowles & Converse, for appellee.

MCALVAY, J. Plaintiff company of Detroit, a Michigan corporation, brought replevin against defendant for a marine boiler, together with attachments, etc., belonging thereto, in the circuit court for Charlevoix county. To the ordinary declaration in replevin filed by plaintiff, defendant pleaded the general issue, without notice of any special defense. This marine boiler was one which plaintiff had made and furnished for George B. Thompson under a certain writing dated October 2, 1902, for the price of $900, to be paid $450 with the order and the balance September 1, 1903. This agreement specified the dimensions, quality, strength, and details of the boiler, which was to be delivered f. o. b. within 90 days, loss, damage, detention, or delay on account of fire, strikes, or other occurrences beyond plaintiff's control excepted. It was stipulated that the title to this property should remain in the company until fully paid for, and in case of default in payment the company was authorized to enter the premises where the boiler was located and remove it without liability "either in tort or contract." The boiler was not delivered until June 8, 1903, and was not ready for use until June 29, 1903. The boiler contracted for was "to be of the following approximate dimensions: Width, 56 inches; length, 68 inches, etc." The boiler delivered was 7 inches wider, and 9 inches longer, than these measurements. The first payment was made as agreed. No other payment has ever been made. At the time the boiler was received and installed in the boat, the record shows that no complaint was made about the delay nor any objection that the dimensions were larger than provided for in the agreement. On June 22, 1904, George B. Thompson, who purchased the boiler, wrote plaintiff, in answer to a letter received by him from plaintiff, asking what he intended to do about the boiler, stating that the boiler leaked, and claiming loss on account of delay in delivery. This was a year after the delivery and installation of the boiler, and appears to be the first time such a claim was made. Later the title of the boat was trans

ferred by George B. Thompson to defendant, in whose possession it was found, and from whom, after demand, it was replevied.

In his opening statement of his defense made to the jury and later to the court, before the case was submitted, defendant's attorney, among other claims, said that defendant would claim damages: (a) To the boat by cutting to admit the boiler because it was not of the dimensions ordered; (b) the rental value of the boat for the time it was idle by reason of delay in delivery; (c) expense for wages of crew kept during this delay. Evidence in support of these claims for damages was offered by defendant, and allowed by the court, subject to the objections and exceptions of the plaintiff, on the ground that it was irrelevant and incompetent and not admissible under the pleadings, and could not be claimed by defendant, who was not a privy to the contract, and who had not shown himself entitled, as assignee of his grantor, to make such claims if any existed. Taking the view of the case indicated by the allowance of the evidence above referred to, the court charged the jury, and a verdict of no cause of action was returned against the plaintiff, upon which a judgment was entered. The case is here for review upon writ of error.

The principal question presented relates to the admission of evidence tending to show the damages as above stated. These claims for damages which the court permitted the defendant to prove were all damages claimed to have been suffered by defendant's grantor on account of default on the part of plaintiff in the performance of its agreement to furnish this boiler of certain dimensions and within a certain time. Defendant did not claim that the purchase price had been fully paid, or that the title had ever actually passed, but insisted that plaintiff was not entitled to possession of the property because the damages claimed were greater than any balance due on the purchase price. Without reference to the question whether such defense could be admitted under the general issue in replevin without notice, we consider the more serious question to be whether such a defense would be available at all in