where had last seen him. Saw him at west end of machine, oiling clutch. As the vibrator dropped back, I looked down at brake at east end of machine. * * * "I only had the top pulley, where the clutch is, off the first day the plaintiff was there.

Q. And at that time did you take the clutch out?

A. Yes, sir; I had it off once in the forenoon, and cleaned it off. Perhaps later on I had it off, and took it out to the machine shop, and sawed it off or filed it up,filed a shoulder on.

Q. Why was that done?

'A. In slipping, it had worn the corner off a little rounding. After I did that it worked better.

"Q. What effect had that being worn that made it necessary to file it off?

"A. When we raised the vibrator, it did not set the screw going; that is, it would go a little bit, and then stop and catch. It would not feed properly. * * *

"When the vibrator dropped back, I looked down at the brake on the east end of the machine, and the next time I saw him he was directly back of the knives.

* *

*

Q. What did you look down at that brake for? You were speaking of some brake at the end of the machine. "A. I wanted to see- It opens up and closes. Sometimes it will rub on the wheel going up. Merely a block on top of the wheel, small pulley about seven inches in diameter, and there is a lever underneath it. It works automatically.

"Q. What would be the effect if it didn't work just as you wanted it to,-anything serious?

"A. Why, no; not particularly."

The injury was not caused by reason of any defect in the machinery itself. The defendant had furnished a safe machine, a safe place to work, and the injury was caused by the negligence of a fellow-servant of the plaintiff, and for which the defendant was in no wise in fault. It is a general rule laid down many times in this court that it is not the grade of the servant, but the employment, that determines the question of fellow-servant. If they are engaged in the same common enterprise, though in different grades, they are fellow-servants. We think the rule laid down in Beesley v. F. W. Wheeler & Co., 103 Mich.

203 (61 N. W. 659, 27 L. R. A. 268), is decisive of this case. It is as follows:

"The true test, it is believed, whether an employé occupies the position of a fellow-servant to another employé, or is the representative of the master, is to be found, not from the grade or rank of the offending or injured servant, but it is to be determined by the character of the act being performed by the offending servant by which another employé is injured; or, in other words, whether the person whose status is in question is charged with the performance of a duty which properly belongs to the master," citing McKinney, Fel. Serv. § 23; Flike v. Railroad Co., 53 N. Y. 549 (13 Am. Rep. 545); Crispin v. Babbitt, 81 N. Y. 516 (37 Am. Rep. 521); Ford v. Railroad Co., 110 Mass. 240 (14 Am. Rep. 598); Anderson v. Bennett, 16 Or. 515 (19 Pac. 765, 8 Am. St. Rep. 311).

It was said by Mr. Justice MONTGOMERY in a concurring opinion in that case, at page 212:

"I think it is clear that where the danger or injury results from the operation, and the negligence is that of one who is engaged in the common employment, it cannot in any proper sense be said to be attributable to a fault in providing a safe place to work, or safe machinery or appliances."

See, also, Schroeder v. Railroad Co., 103 Mich. 215 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354).

The court therefore should have directed the jury that Edmonds was a fellow-servant with the plaintiff, and that plaintiff could not recover.

Judgment must be reversed, and a new trial granted. The other Justices concurred.

WEST v. DEMME.

QUESTIONS

1. BROKERS-ACTION FOR COMMISSIONS - EVIDENCE FOR JURY-INSTRUCTIONS. In an action for commission on a sale of mining property, plaintiff testified that he contracted in writing with defendant to find a purchaser for the property, or to effect the organization of a company satisfactory to defendant to take it over, for which he was to receive a specified commission; and that such contract was afterwards delivered to defendant at his request, and not returned. He further testified that it was the understanding that defendant was to realize at least $75,000 in cash out of the transaction. It appeared that plain. tiff endeavored to interest C. in the property, and arranged with him to examine it, but took no part in any further negotiations. He testified, however, that C. told him that, if the property should prove to be as represented, he would assist in organizing a corporation to take it on terms as favorable as those proposed by defendant. C. visited the property, and subsequently a corporation was organized, C. subscribing for a large amount of the stock; but both he and defendant testified that such subscription was in the interest of defendant, and that the organization of the company was not brought about by C., but was effected by defendant himself, with the assistance of another broker. Defendant received no cash out of the arrangement. Held:

(1) That the question whether plaintiff, through C., brought about the organization of the corporation, was for the jury.

(2) That it was also for the jury to say whether it was a part of plaintiff's undertaking that defendant should realize $75,000 in cash out of the disposition of the property.

(3) That, if such was the contract, and defendant was un. able to induce C. to proceed on those terms, defendant had the right to abandon the scheme, and to organize a corporation on different lines.

(4) That, under the circumstances, it was error to refuse an instruction that "the duty of the broker is to bring the buyer and the seller together, and effect a purchase of the property according to the terms agreed upon by the seller and the broker; the broker is not entitled to a commission for unsuccessful efforts to effect a sale."

2. SAME.

In an action to recover an agreed commission on a sale of real estate, evidence of negotiations between plaintiff and those other than the purchaser, whom he claims to have procured, is inadmissible.

Error to Wayne; Frazer, J. Submitted February 12, 1901. Decided July 19, 1901.

Assumpsit by George M. West against Rodolph A. Demme for commissions on a sale of real estate. From a judgment for plaintiff, defendant brings error. Reversed.

S. S. Babcock (Philip T. Van Zile, of counsel), for appellant.

Edward W. Pendleton (Otto Kirchner, of counsel), for appellee.

MONTGOMERY, C. J. The plaintiff recovered a verdict of $55,000, which is the amount of a commission claimed to have been earned on the sale of a mining property owned by the defendant, with interest. The evidence shows that the defendant was interested in mining property in Ontario, known as A. L. 74, 75, and 76, and other claims in the Rainy river district, and also known as the Foley-Weigand property. The property was a gold mine, partially developed. It was not yet equipped with a stamp-mill; and defendant, Demme, had, in the fall of 1895, invested in this property some $75,000. Plaintiff and defendant were then friends. Both were residents of Detroit. Plaintiff was a broker.

In the fall of 1895, defendant told plaintiff of his situation; that he had invested more in this property than he had expected; that he was very anxious to get out, and had a scheme for organizing a land-improvement company to take over the property, develop it in part, and sell out certain of the claims. With this end in view, he expressed himself as willing to organize a company with a capital stock of $500,000, with shares at $1 each, of which 300,000

should be issued to defendant, and 200,000 left in the treasury, and, of the 300,000 issued to defendant, a sale was to be made of 150,000 at par. The plaintiff, believing that through his Eastern connections he would be able to sell this mine or place the stock, entered into an agreement with defendant with that in view. What the terms of that agreement were rests upon the testimony of the two parties. The plaintiff testified that, in addition to a paper containing an elaborate description of the mining property owned by defendant, and a statement of the terms upon which he was willing to organize a company, an additional paper was given to the plaintiff, which was later returned to Mr. Demme, the defendant, and which is not now produced. He states that the paper authorized him to place the Foley-Weigand property, known as A. L. 74, 75, and 76, upon the market, and to form a land-improvement company to take this property for development, and afterwards take in other property, and that for placing this property upon the market $50,000 commission was to be paid. On further examination, he testifies that this letter contained a proposition to organize a land-improvement company, and, if that could not be done, "to effect the organization of a company which would-to effect the organization of this property." He further testified as follows:

"Q. Who was to effect the organization? "A. I was.

"Q. You were to effect the organization?

"A. I was to find some one who would effect the organization with me.

"Q. Was that substantially all there was in that paper? "A. For the formation of this company, $50,000 commission was to be paid.

"Q. For what were you to receive the $50,000?

"A. For placing upon the market this Foley-Weigand property, or to effect an organization to operate it. "Q. Were you to effect the organization ?

"A. No; not personally.

"Q. Then why do you say to effect an organization?' "A. To help effect one.