mitted. As we understand, it is counsel's claim that the court erred in the admission of evidence that the staves did not comply with the contract and that the court should have directed a verdict for the loss on the staves.

Under the first of these propositions, it is pointed out by counsel that specific defects in the hoops were enumerated, and it is urged that having given as reason for declining to accept the stock specific objection to the hoops, defendant cannot show that the staves were not in accordance with the contract, and Ginn v. W. C. Clark Coal Co., 143 Mich. 84, and Providence Jewelry Co. v. Bailey, 159 Mich. 285, are cited. There should be no doubt as to the correctness of the rule laid down in these decisions, that where one, after having full opportunity to examine the article shipped, rejects the same on specific grounds, the other party has the right to act upon the assumption that it is upon these grounds alone that the party relies. The difficulty with the application of that rule to the instant case grows out of the fact that defendant's refusal to accept the stock, as appears by the correspondence, was based upon more than one reason. It included as one of the reasons that the stock was not as plaintiff had guaranteed, a claim that the stock did not comply with the contract. Having based his refusal, in part at least, on the ground that the stock did not comply with the contract, we think it was admissible for him to prove that it did not comply with the contract. Plaintiff could not have been misled in any way. When he sent his telegram in reply to the one received from defendant, he asserted that "quality both staves and hoops all right."

It is insisted by plaintiff's counsel upon the second proposition that "red gum fruit barrel staves" has a specific meaning to the trade and includes not only staves manufactured from red gum, but also staves

manufactured from timber growing in the same locality. They insist that this is conclusively proven, and that it is also conclusively proven that the staves furnished complied with the term "red gum fruit barrel staves" as understood by the trade; hence, they urge the court should have directed a verdict. There was testimony to support the plaintiff's claim just mentioned, but it was not undisputed. Upon a motion to direct a verdict, the testimony most favorable to the other party, together with such legitimate inferences as may be drawn from the established facts, must be accepted. A few excerpts from the testimony will be sufficient. Mr. Hampton, a manufacturer of cooperage stock and barrels, was called as a witness by the plaintiff. On cross-examination he testified as follows:

"Q. What do you understand to be the meaning of red gum fruit barrel staves? What would you expect in a car ordered under specifications of that sort?

"A. Red gum is a kind of timber grows in the south and southwest.

"Q. Would you expect any other timbers in there other than red gum?

"A. Well I wouldn't expect any other timber that was not equally as good.

"Q. Well it wouldn't be a carload of red gum fruit barrel staves if it had other timber in there, would it? "A. Well, not entirely, no."

The staves in question were afterwards sold to L. J. Eckler, who manufactured them into barrels. testified:

He

"I examined it myself and worked on it for two weeks myself. This car contained red gum and mixed timber staves other than red gum. It is a usage in the trade that we get the kind of timber we pay for. When we order red gum we expect red gum and no other kind of timber."

Mr. Lester Le Fever examined the car of staves at Newfane, New York. He testified:

"Q. State what you found when you inspected this car?

"A. Would say they were a mixed car. "Q. What further did you find?

"A. I thought they were bastard staves."

There was other testimony in the case tending to dispute plaintiff's claim and to support the claim of defendant. It was not error to refuse to direct a verdict for the plaintiff for the amount of his loss on the staves.

The judgment is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.

IDEAL FURNACE CO. v. INTERNATIONAL MOLDERS' UNION OF NORTH AMERICA.

APPEAL OF MURRAY.

1. APPEAL AND ERROR-MOOT CASE.

Where defendant was adjudged guilty of contempt and fined, which he paid, there is nothing before this court for determination, on appeal, defendant having by his own act discharged the order.

This court should, of its own motion, decline to consider cases it has not the power to determine.

3. COSTS-DISMISSAL ON COURT'S MOTION-JURISDICTION. Costs will not be awarded to appellee, on dismissal on court's own motion, where no motion was made to dismiss from appellate court for want of jurisdiction.

Appeal from Monroe; Gilday, J. Submitted October 22, 1918. (Docket No. 96.) Decided December 27, 1918.

Bill by the Ideal Furnace Company against the International Molders' Union of North America, Andrew Murray and others for an injunction. Andrew Murray was adjudged guilty of contempt of court and fined $10 which was paid and an appeal perfected from said order. Appeal dismissed.

S. Homer Ferguson, for plaintiff.
Entenza & Spillane, for appellant.

PER CURIAM. On April 6, 1917, defendant Andrew Murray was adjudged guilty of contempt of court and fined $10 which was then paid. Later he filed claim of appeal and perfected the same. After the submission of the case in this court we requested briefs from counsel upon the right of the defendant to appeal from the order which had been satisfied, and upon the power of the court to hear and determine the case. Such briefs have been filed. They have been read with care and all authorities cited have been examined. We are convinced that upon this record the questions are purely academic; that no real and substantial controversy is before us; that the order of the court below having been satisfied and the fine paid no relief can be now granted appellant. The defendant by his own act has discharged the order entered by the court below. There is nothing before us for determination People v. Leavitt, 41 Mich. 470; Powell v. People, 47 Mich. 108; City of Ishpeming v. Maroney, 49 Mich. 226; State v. Conkling, 54 Kan. 108 (45 Am. St. Rep. 270, 37 Pac. 992); Washington v. Cleland, 49 Or. 12 (124 Am. St. Rep. 1013, 88 Pac. 305); Town of Batesburg v. Mitchell, 58 S. C. 564 (37 S. E. 36); 3 C. J. p.

358 et seq. This court should, of its own motion, decline to consider cases it has not the power to determine. J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Bolton v. Cummings, 200 Mich. 234; Miller v. Johnson, 201 Mich. 535. The appeal will be dismissed but without costs. Maxfield v. Freeman, 39 Mich. 64; First Nat. Bank of Pt. Huron v. Mellen, 45 Mich. 413.

GARDINER v. STUDEBAKER CORPORATION.

1. TRIAL-CREDIBILITY OF WITNESS-UNDISPUTED EVIDENCE. Where there was no evidence, either direct or circumstantial, that an accident happened in any other way than as testified to by witness, the court below was not in error in refusing to submit the question of his credibility to the jury.

2. SAME NEGLIGENCE EVIDENCE QUESTION FOR JURY.

In an action for personal injuries caused by defendant's motor truck to a girl four years of age, resulting in her death, the happening of the accident alone is not evidence of negligence of defendant sufficient to take that question to the jury.

3. SAME

BURDEN OF PROOF-PRIMA FACIE CASE-QUESTION FOR

JURY. A plaintiff suing for damages based on defendant's negli gence is bound to prove his cause of action, and must make a prima facie case of negligence before he is entitled to take the judgment of the jury.

Error to Wayne; Hosmer, J. Submitted October 10, 1918. (Docket No. 29.) Decided December 27, 1918.

Case by Harry M. Gardiner, administrator of the See notes in 26 L. R. A. (N. S.) 435; 32 L. R. A. (N. S.) 1177.