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If the two acts did not concur in producing the injury, but it was produced by one or the other of them, it must appear, by a fair preponderance of the evidence, that it was produced by the negligent act, or the plaintiff cannot recover. As I said, in this case the negligent act would be the running of the train at a high rate of speed, and the innocent act, or nonnegligent act, would be the blowing of the whistle."

This was a correct statement of the aw and a proper application of it to the testimony, and was justified under the authority laid down in Selleck v. Railway Co., 93 Mich. 381 (53 N. W. 556, 18 L. R. A. 154). In Cooley on Torts said that:

(1st Ed.), at page 70, it is

"If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent. * * *It is equally true that no wrongdoer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense that there was a more immediate cause of the loss, if that cause was put in operation by his own wrongful act. To entitle such party to exemption he must show not only that the same loss might have happened, but that it must have happened if the act complained of had not been done" -citing Davis v. Garrett, 6 Bing. 716.

Counsel for defendant suggest that the situation is ruled by Stahl v. Railway Co., 117 Mich. 273 (75 N. W. 629). We think that case is clearly distinguishable from the present one upon the facts.

Error is also assigned because of the refusal of the trial court to submit three special questions to the jury. They were refused on the ground that the answers to them would not be controlling. We have

examined them, and are satisfied that the trial court was right in refusing to submit them.

The judgment of the trial court is affirmed.

MOORE and KUHN, JJ., concurred with BIRD, J.

OSTRANDER, J. If plaintiff's horse had been frightened by a newspaper blowing about its head or feet, or if the delay in passing over the track had been occasioned by any other cause not chargeable to a wrongful act, of defendant, the principle involved would be the same. Plaintiff claims that he took the proper and adequate precautions to cross the track in safety. He had ample time to cross the track in safety if he had proceeded. He did not cross it in safety because, having passed upon the track into a place of danger, his horse refused to proceed. It was the frightened horse and its performance, and not the speed of the train, which was the proximate cause of the plaintiff's injury. I cannot distinguish the case at bar and Lambeck v. Railroad Co., 106 Mich. 512 (64 N. W. 479), and cases cited in opinion, Murphy v. Railroad Co., 107 Mich. 627 (65 N. W. 753); Doak v. Township of Saginaw, 119 Mich. 680 (78 N. W. 883), and Bell v. Village of Wayne, 123 Mich. 386 (82 N. W. 215, 48 L. R. A. 644, 81 Am. St. Rep. 204).

The judgment should be reversed.

STEERE, C. J., and MCALVAY, BROOKE, and STONE, JJ., concurred with OSTRANDER, J.

175 MICH.-11.

PETTINGER v. ALPENA CEDAR CO.

1. APPEAL AND ERROR-EXCEPTIONS-TRIAL-REVIEW.

Proper exceptions as well as a request for a ruling of the trial court are essential to review argument of counsel for the prevailing party on writ of error.

2. SAME-NEW TRIAL.

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The denial of a motion for new trial is not reviewable unless the reasons for such ruling are demanded or secured in the lower court.

3. EVIDENCE-CONTRACTS-CREDIT GIVEN.

On the trial of an action for supplies furnished to one party on the credit of another, it was not erroneous to permit plaintiff's counsel to inquire of a witness for plaintiff, to whom was credit extended.

4. PRINCIPAL AND AGENT-ESTOPPEL-HOLDING OUT PERSON AS AGENT-SUFFICIENCY OF EVIDENCE.

Acts of an alleged principal during a long course of dealing or many successive transactions, recognizing the authority of another to act in the principal's behalf, may raise against him an estoppel to deny the existence of an agency as to persons who have dealt with the agent in reliance on his apparent authority.

5. SAME EVIDENCE OF ESTOPPEL.

Testimony on plaintiff's behalf that he furnished supplies to a lumbering contractor at the request of one who assumed to act as agent for defendant corporation, directing plaintiff to present the account to defendant and it would be paid, that one account was approved by the alleged agent and was paid by defendant, that plaintiff believed that such agency existed and acted in reliance on the payment of the one account and on the fact that defendant had furnished the same person with blank orders to pay laborers in the contractor's employ and such orders were honored by the corporation, that it had also delivered to him a check payable to his order and plaintiff had received the check on the account in litigation, presented a question for the jury on the ground of an agency by estoppel. STONE and OSTRANDER, JJ., dissenting.

Error to Montmorency; Emerick, J. Submitted November 15, 1911. (Docket No. 125.) Decided May 28, 1913.

Assumpsit by John Pettinger against the Alpena Cedar Company for goods and supplies furnished to another on defendant's credit. Judgment for plaintiff. Defendant brings error. Affirmed.

Elmer G. Smith, O'Brien & Francis, and L. G. Dafoe, for appellant.

I. S. Canfield, for appellee.

BIRD, J. While one James H. Wade was lumbering certain lands in Montmorency county in pursuance of a contract with H. K. Gustin, of Alpena, he purchased his camp supplies from the plaintiff, who kept a general store at Atlanta. In January, 1907, the account had increased to $366.99, at which time plaintiff advised Wade that he could not carry him for a larger amount, and that he would have to make some arrangements about making payment of it. Wade then appealed to Gannon for assistance. Soon after this, Gannon, who had charge of Gustin's lumbering interests in the woods, came to plaintiff's store and approved the account and ordered plaintiff to send it to the Alpena Cedar Company and it would be cashed. Plaintiff complied with the suggestions and received a check from the Alpena Cedar Company for $366.99 in payment of the account. After Gannon approved this bill, he inquired of Wade if he intended to continue trading with plaintiff, and, upon being assured by Wade that he so intended, Gannon said to plaintiff:

"You will supply Mr. Wade with camp supplies such as he needs to go on and from time to time I will be here. I will be here oftener than I have been and I will O. K. these bills and you may send them to the company and get your money.'

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Following this conversation, and up to the latter part of March, plaintiff continued to furnish Wade with supplies, but charged them directly on his books to the defendant company. About this time some differences arose between Wade and Gustin, which resulted in severing Wade's connection with the work. Up to this time the plaintiff had furnished Wade with supplies aggregating the sum of $405. The bill was approved by Wade and sent to the defendant, but was returned unpaid.

It was shown by the testimony that Wade was furnished two books containing blank labor orders of the Alpena Cedar Company, which were used by him in making payment of labor and other accounts, and that they were honored by defendant. Some of these orders were purchased by plaintiff from the men employed, and they were honored by the defendant. The defendant denied that it had any interest in the contract; that it was entirely a matter of Mr. Gustin's; and denied that Mr. Gannon had any authority to bind the company for camp supplies or anything else. There was no proof that Gannon had any actual authority from the defendant to do what he did, but it was the claim of the plaintiff that defendant's course of dealing with matters connected with the contract misled him into the belief that the defendant was interested in the contract and that Gannon was acting for it, and that by reason of such belief he was induced to part with his goods.

At the close of the testimony, the defendant requested the court to direct a verdict in its behalf, but, instead of so doing, the court left the question to the jury and instructed them in part as follows:

"If you believe from the evidence in the case, by a fair weight and preponderance of the evidence, that the transactions which I have enumerated would have produced in the mind of a man of ordinary intelligence, of fair decent business ability, and did produce

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