work on the books of the Walton Salt Association, Limited. It appears undisputed that S. L. Smith had invested the money in this association, and had given to the defendant one-half of the stock which he (S. L. Smith) had purchased. There was evidence that this association had become insolvent finally, or at least did not have the means to employ a bookkeeper. It was a fair question for the jury, under the evidence, whether plaintiff's testator was not to do all the work of this nature in the office of S. L. Smith, including the very work in question, like other matters in which the elder Smith was interested. It is to be noted that there is an entire absence of any evidence of a hiring of plaintiff's testator by the defendant; and there is much force in the claim of the defendant that the relations of the deceased were entirely with S. L. Smith. We think the important question in the case was whether there was an implied contract on the part of the defendant to pay plaintiff's testator for the work done upon the books in the office, or whether such services were not all embraced in his employment by S. L. Smith as the latter's private secretary.

It is a familiar doctrine that neither an express contract, nor one by implication, can come into existence, unless the parties sustain contract relations; that, to constitute either the one or the other, the parties must occupy towards each other a contract status-mutuality of will and interaction of parties, generally expressed, though not very clearly, by the term "privity." Without this a contract by implication is quite impossible.

As was said by Justice GRAVES, in Woods v. Ayres, 39 Mich., at page 351 (33 Am. Rep. 396):

"Where there is a spontaneous service as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, no promise will be implied. The contract connection is not established. (Citing authorities.)

"The parties must be consenting bargainers personally or by delegation, and their coming together in contract

relation must be manifested by some intelligible conduct, act, or sign. If not, no contract is shown. (Citing authorities.) The privity essential to a contract must proceed from the will of the parties."

See, also, Michigan College of Medicine v. Charlesworth, 54 Mich. 522 (20 N. W. 566); Covel v. Turner, 74 Mich. 408 (41 N. W. 1091); Whittemore v. Scientific Institute, 128 Mich. 518 (87 N. W. 623); Franck v. McGilvray, 144 Mich. 318 (107 N. W. 886).

The jury might fairly infer from the evidence that the services were rendered without any expectation at the time that the defendant would compensate the plaintiff. The conceded impecunious circumstances of the plaintiff's testator rendered it improbable that he would have worked five years for the defendant without asking for compensation during the progress of the work, had such compensation been within the contemplation of the parties. We think the evidence was sufficient to warrant the jury in reaching the conclusion that it was not contemplated by the parties that the services were being performed for the defendant. By the undisputed evidence, the relation which plaintiff's testator and the defendant had sustained, during all this time, to S. L. Smith furnishes a reasonable explanation for all that was done by the former. The conduct of the parties should be examined with scrutiny in such a case. We think the jury was warranted in reaching the conclusion, which they probably did reach, that the defendant, by his letter of January 8, 1906, intended to treat the claim of plaintiff's testator as an unreasonable one. Over 2 years elapsed after the writing of this letter before any further claim was made; and this suit was not brought until after the death of testator.

2. It is next urged that the secretary of this association had no authority to hire a bookkeeper; that, as the partnership association could not be held liable, the secretary himself is liable, because the work was done upon the books of the association. We think this involves the same question as that which we have already referred to.

To say that, because the association was not liable the defendant must be, is to beg the entire question. The question still remains: Was there a contractual relation between the parties?

We have examined both the evidence and the charge of the court with care, and we think that the question was fairly submitted to the jury; and they having found that no contractual relation, either express or implied, ever existed between the parties to this litigation, therefore the plaintiff has no cause to complain of the result.

3. It is next urged that the case should be reversed because of the improper conduct of the trial judge, as well in the charge of the court as upon the trial of the case. We do not think there is any merit in this position. The substance of the charge is here set forth, and we think it fairly and fully submitted the case to the jury, and was warranted by the evidence.

And as to certain remarks which were made by the trial judge during the progress of the case, but not excepted to by appellant, they are not entitled to discussion.

In the thirty-second assignment of error, it is claimed that the circuit judge erred and was mistaken, as matter of fact, when he said that Mr. S. L. Smith was the larger stockholder in the Walton Salt Association, Limitedlarger than his son, the defendant-and used other language in that connection. It does appear that until the report of 1906 was made the amount of stock held by Samuel L. Smith and the defendant was equal; but in 1906 Samuel L. Smith held more than the defendant. As has already been said, the evidence is undisputed that S. L. Smith had made the investment in this stock, and had given the defendant the shares which the latter held. It is also true that the defendant had been elected the secretary and treasurer of the association. It is equally true that the books were kept in the office occupied jointly by the two Smiths. We do not think that this statement made by the trial judge, under the circumstances in which it was made, should be held to be reversible error.

4. The only remaining question which we think worthy any consideration is that, because of the death of plaintiff's testator, the testimony of the defendant, of S. L. Smith, and of Frank E. Robson was improperly admitted under the statute. Act No. 30, Pub. Acts 1903.

As to the testimony of the defendant himself, we do not think that it appears that anything to which he testified can be said to have been equally within the knowledge of the deceased. He was permitted to testify as to his own relations to his father, S. L. Smith, after 1898. He was also permitted to testify that he was in his father's employ in 1901, and the salary which he received. Certainly this cannot be said to have been matter equally within the knowledge of the deceased by anything that appears in this record.

As to the testimony of Frank E. Robson, there was no evidence that in any way indicated that he was an agent in the making or continuing of any contract with the deceased, and we therefore think that the authorities cited by the appellant are inapplicable. A reference to those cases will show that the agency must be with reference to the contract. Blodgett v. Vogel, 130 Mich. 479 (90 N. W. 277); Gustafson v. Eger, 132 Mich. 387 (93 N. W. 893); Detroit United Railway v. Smith, 144 Mich. 235 (107 N. W. 922); Locklund v. Burman's Estate, 146 Mich. 233 (109 N. W. 255).

It is further claimed that because S. L. Smith and the defendant were each stockholders, managers, and officers of the Walton Salt Association, Limited, their testimony was also barred. It is only necessary to say that the association is not a party to this suit, and that there is no corporation involved in this litigation as a party. Therefore this testimony does not come within the class excluded by the statute. We do not understand that the agents of individuals would be excluded from testifying, unless they were agents in the making or continuing of the contract. See De Mary v. Burtenshaw's Estate, 131 Mich. 326 (91 N. W. 647).

We

We discover no reversible error in the record. think that the case was fairly submitted to the jury by the trial court; and the judgment of the circuit court is affirmed.

MOORE, C. J., and STEERE, MCALVAY, BROOKE, and OSTRANDER, JJ., concurred. BIRD, J., did not sit.

MURPHY CHAIR CO. v. AMERICAN RADIATOR CO.

1. JUDGMENTS-CONCLUSIVENESS-EQUITY-RES JUDICATA. A judgment is not res judicata in a subsequent cause, unless the identical matter in issue in the second proceeding was determined by the former adjudication.

2. SAME.

The decree in the case of Stansell v. American Radiator Co., 163 Mich. 528 (128 N. W. 789), determining the rights of complainant under a tax lease purchased in the name of a trustee for the purpose of cutting off any rights of easement held by the defendant radiator company in the 30-foot strip of land involved in this proceeding, is not res judicata of complainant's suit brought in its own name to determine the respective rights of the parties to the same parcel under separate grants of easement. But what the court said in the first case as to the effect of a certain deed from complainant to defendant, wherein the easement of defendant was recognized, and determining its effect, is conclusive in the second proceeding. 3. EASEMENTS-CONFLICTING RIGHTS.

Where complainant held the original easement by mesne conveyances from the first grantee, and defendant having secured by purchase an easement from the grantor, constructed on the parcel side tracks to an adjacent railroad, its use was subject to the paramount right of way over the same premises claimed by complainant, who had openly used the strip in question as a roadway for 14 years or more.