65 N. W. 455; Carter, Rice & Co. v. Cream of Wheat Co., 73 Minn. 315, 76 N. W. 55. [3] 3. This was not a sale of specific goods. It was a sale of goods not specified at the time the contract was made. The rules as to sale of specified goods do not fully apply, but they must be borne in mind, for the ex ary among dealers on the Chamber of Commerce, where a car of wheat has been applied by a seller on a sale in the manner above mentioned, for the purchaser to apply the same on sales made by him and so on for several successive transactions, all while cars are on track and before final delivery of the wheat at any elevator for unloading ecutory contract is converted into a comand weighing, and in such case subsequent purchasers settle with those from whom they have bought without reference to settlement on previous sales, and without production of receipts or vouchers from prior sellers. plete bargain and sale by specifying the goods to which the contract is to attach, or, in legal phrase, by the appropriation of specific goods to the contract. The sole element deficient in a perfect sale is thus Sometime on Monday, May 13th, plaintiff supplied. The contract has been made notified defendant not to unload these cars. in two successive stages, instead of being The court found that this notice was given completed at one time; but it is none the between 11:30 a. m. and 2 p. m. The court less one contract, namely, a bargain and also found that the cars were all unloaded sale of goods. Benjamin on Sales (7th Ed.) before 11:30 a. m. on that day. The unloading was doubtless hastened by defendant on account of Mohler's known financial embarrassment. The court found that the foregoing trans-33 Minn. 111, 22 N. W. 244; Jones v. Schneiactions operated to transfer to Mohler the title and the possession of all of said wheat; that plaintiff did not intend to retain any dominion or control over it, but did intend to convey and transfer both the title and right of absolute and unconditional possession. [1] 1. The principles of law applicable to this case are for the most part well settled. In case of sale of specific goods-that is, goods that are specified at the time the contract is made the title passes at the time the parties intend that it shall pass. The presumption is that it passes at the time the contract is made, and it will pass at that time unless some facts are shown that indicate a contrary intention. This is true, although neither payment nor delivery are then made. Fishback v. Van Dusen & Co., 33 Minn. 111, 22 N. W. 244; Rail v. Little Falls Lumber Co., 47 Minn. 422, 50 N. W. 471; Day v. Gravel, 72 Minn. 159, 75 N. W. 1. But if neither payment nor delivery are made at the time of the contract, the seller, unless he gives credit, still has a lien on the goods for the price, until he receives payment, or makes delivery without it. [2] 2. Of course payment may by agreement be made a condition to the passing of title. The term "cash sale," as applied to a sale of specific goods, is sometimes used to denote a sale where title is not to pass until the cash price is paid, and sometimes to denote a sale where title has passed, but possession is not to be delivered until payment is made. Tiffany on Sales, 123, 268. In either case payment and delivery are concurrent and mutually dependent acts, and if the seller gives up possession in expectation of immediate payment, and payment is not forthcoming, he may repossess himself of the goods or sue in conversion one who refuses his demand for repossession. Fishback v. Van Dusen & Co., 33 Minn. 111, 22 N. W. 244; Freeman v. Kraemer, 63 Minn. 242, 246, § 358; Benjamin on Sales Per. Prop. (5th Ed.) 341. In such case the title passes at the time the goods are "appropriated" to the contract (Fishback v. Van Dusen & Co., der, 22 Minn. 279); that is, when the parties do something which signifies an intention that the title shall pass. To constitute an appropriation, the goods must be identified and they must be applied irrevocably to the contract. It is not always easy to determine, in a given case, whether they have been so applied. No particular words or acts are required. The intent of the parties governs. [4] 4. There may be an appropriation without either payment or delivery; but, if the parties manifest an intention that payment is to be made before title passes, such intention controls, and there is no transfer of title until payment is made. If this sale was a cash sale, either in the sense that title was not to pass until the price was paid, or in the sense that, though the title passed, payment was to be made on delivery, and if then delivery was made in contemplation of contemporaneous payment, plaintiff could not be divested of its right to the wheat without payment, and it is entitled to recover in this action. [5] 5. The presumption is in favor of a cash sale. Fishback v. Van Dusen Co., 33 Minn. 111, 22 N. W. 244; Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, 46 N. W. 306. But facts and circumstances may show an intent to deliver on credit of the buyer. Defendant contends that this was what plaintiff did; that plaintiff intended to give to Mohler both the title and right of possession and to rely wholly on his personal responsibility. The trial court found, in effect, that plaintiff did do this. [6] 6. We are of the opinion that the determination of the trial court is sustained by the evidence. Defendant's haste in unloading these cars after knowledge of Mohler's insolvency was of no avail to it. The rights of the parties are to be determined by what occurred prior to this. We are of the opin not in harmony as to the effect of a requirement of this kind. When weighing is necessary to identify the goods, the intention that title shall not pass until this is done is a necessary inference. Burdick on Sales, 94. Where the weighing is to be done solely for the purpose of ascertaining the price, the reason for presuming such an intention is less strong; but authorities generally sustain the rule that there is in such case a pre ion that the written notice to Mohler applying these cars on the sale previously made, the written order to the railroad company to "deliver" these cars to Elevator L "for account of W. B. Mohler," and their delivery there, the rendering of bills therefor to Mohler after his known insolvency, and still later rendering an account to the Mapes Farmers' Elevator Company of a sale made to Mohler, tend to prove a delivery to Mohler, and to further prove that plaintiff intend-sumption that title will not pass. Burdick ed to make the delivery absolute, to "assume the risk of parting with his title and possession," and to rely entirely on the responsibility of Mohler. Together, these circumstances are sufficient to sustain the finding of the trial court. [7] 7. The custom on the Chamber of Commerce to resell grain in such cases over and over again before the same is weighed or paid for lends color to this view. Of course, if by the contract the sale was plainly for cash, usage could not make it a sale on credit. Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153, 158, 46 N. W. 306. Custom will not be allowed to vary or contradict the plain expressed terms of a contract, or to imply from these terms an obligation different from what the law would imply, or to imply an obligation in the absence of any contract on the subject. Paine v. Smith, 33 Minn. 495, 24 N. W. 305. But usage may be admissible to explain what is doubtful. Certain business customs and usages may become so well established and understood that men, in making their contracts, assume them, and take them for granted, and contract with reference to them. Paine v. Smith, 33 Minn. 495, 24 N. W. 305; Merchant v. Howell, 53 Minn. 295, 55 N. W. 131. Accordingly, the custom of this business was proper to be considered in determining what the parties intended by their transaction. [8] 8. Plaintiff urges that the fact that the bill of lading was not delivered negatives the idea of an unconditional delivery of the wheat. It is true that, where goods are evidenced by a bill of lading, the retention of the bill of lading by the vendor is a circumstance going to show that title was not intended to pass, because it is some evidence of retention of the control and right of disposal of the goods. But in this case the bill of lading ran to the consignee and not to its order. There is evidence that, where a bill of lading was issued on wheat shipments in this form, it was not the custom to deliver it upon a sale of the wheat. It further appears that each bill of lading in this case covered cars other than those applied to Mohler. In the nature of things it could not be delivered to the purchaser of every car. on Sales, 95; Williston on Sales, 268, 269; Martin v. Hurlbut, 9 Minn. 142 (Gil. 132); Restad v. Engemoen, 65 Minn. 148, 67 N. W. 1146; Day v. Gravel, 72 Minn. 159, 75 N. W. 1. If the goods are to be weighed by the vendee, it is held in some cases that a presumption arises that title is not to pass until this is done (Williston on Sales, 269), though there is much authority to the contrary (Cunningham v. Ashbrook, 20 Mo. 553; Sedgwick v. Cottingham, 54 Iowa, 512, 6 N. W. 738), as also in the case where the goods are to be weighed, measured or counted by a third person (Leonard v. Davis, 66 U. S. 476, 483, 17 L. Ed. 222). [10] 10. If the weighing is not to be done before delivery and the seller in fact delivers the goods to the buyer, the mere fact that the quantity is not known does not prevent the title from passing. Scott v. Wells, 6 Watts & S. (Pa.) 357, 40 Am. Dec. 568; Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42; Riddle v. Varnum, 20 Pick. (Mass.) 280; Welch v. Spies, 103 Iowa, 389, 72 N. W. 548; Wadhams v. Balfour, 32 Or. 313, 51 Pac. 642. In such case the rule applies that "a delivery, apparently unrestricted and unconditional, of goods sold for cash, is presumptive evidence of the waiver of the condition that payment should be made on delivery in order to vest the title in the purchaser." Fishback v. Van Dusen & Co., 33 Minn. 111, 117, 22 N. W. 244, 245; Upton v. Sturbridge Cotton Mills, 111 Mass. 446. But these rules are in every case merely rules of presumption. Williston on Sales, 269. The language may be such as to indicate that the parties intended that the title should pass when delivered, even though by the contract the vendor is bound to weigh or measure the goods. In Gardner v. Northern Pac. Ry. Co., 118 Minn. 275, 136 N. W. 1028, it was held that the fact that railway ties were to be inspected and counted after delivery, and that 60 per cent. was to be paid in cash when the ties were inspected, did not prevent the passing of title before inspection and payment. In Fredette v. Thomas, 57 Minn. 190, 58 N. W. 984, a sale of saw logs provided for delivery on a railroad right of way, scale to be made there by the surveyor general of [9] 9. It is contended by plaintiff that the logs for that district, price to be fixed by fact that the goods were still to be weighed such scale. These provisions were held not in order to ascertain the price indicated that inconsistent with a verdict that title pass It is clear that the fact that this wheat | fact of the station not being lighted is a cirwas not weighed at the time of its transfer cumstance which may be considered. to Mohler's account did not, as a matter of [Ed. Note.-For other cases, see Carriers, law, prevent the title and right of possession Cent. Dig. 88 1295, 1297-1305; Dec. Dig. S 317.*] from passing. It was merely one circumstance to be considered along with others in determining the intent of the parties. [1] 11. Plaintiff contends that, if it is held that if the title passed from plaintiff, there was still a right of stoppage in transit. We need not discuss the right of stoppage in transit further than to say that the right is clearly gone if the goods are not stopped in transit before actual delivery to the vendee or some one who has stepped into his shoes. In this case the court found that plaintiff notified defendant to stop unloading at some time between 11:30 a. m. and 3 p. m. on May 13th, but further found that the wheat was wholly unloaded before 11:30 a. m. There is evidence sufficient to sustain these findings. The transit had accordingly ended before this notice was given and the right of stoppage was gone. 26 Am. & Eng. Encyc. of Law (2d Ed.) 1091. Order affirmed. Evidence in an action for the killing by a train of one who had gone to a depot to take passage held to make a question for the jury on the question of negligence in the operation of the train. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315 1325; Dec. Dig. § 320.*] 2. CARRIERS (§ 347*) — KILLING PASSENGER CONTRIBUTORY NEGLIGENCE EVIDENCE. Evidence in an action for death of one who, having gone to a depot to take passage, was killed by a passing train, held, in view of the presumption that she was in the exercise of due care, to make a case for the jury on the question of contributory negligence. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. § 347.*] 3. CARRIERS (§ 320*)-KILLING PASSENGER CAUSE OF ACCIDENT-EVIDENCE. Evidence in an action for death of one who having gone to a depot to take passage was killed by some passing train held sufficient to go to the jury on the question of her having been killed by a train run by the platform in a negligent manner. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*] 4. CARRIERS (§ 317*)-KILLING PASSENGERNEGLIGENCE EVIDENCE. On the question of negligence in rapidly backing by a depot platform an engine without a headlight, on a dark night, whereby one on the platform to take passage was killed, the 5. DEATH (§ 32*)-PERSONS FOR WHOSE BEN EFIT RECOVERY MAY BE HAD. Under Comp. Laws 1897, § 6309, providing that recovery in an action for death, to be maintained by the deceased's personal repreand in the proportion provided by law in relasentatives, shall be distributed to the persons, tion to the distribution of personalty left by persons dying intestate, recovery for death of an unmarried adult, leaving as next of kin her sister, though she had been supported by deparents and a sister, may not be had for the ceased; the parents alone being under Pub. Acts 1899, No. 116, and Pub. Acts 1909, No. 286, distributees of her personal intestate es tate. [Ed. Note.-For other cases, see Death, Cent. Dig. 88 47, 48; Dec. Dig. § 32.*] 6. DEATH (§ 18*)-RECOVERY FOR PARents. Parents of an adult unmarried child who had been supported by her may recover for her death none the less because the support tion under Comp. Laws 1897, §§ 4487-4501, had been voluntary, and not compelled_by_acas to support of poor persons by their relatives. [Ed. Note.-For other cases, see Death, Cent. Dig. 20; Dec. Dig. § 18.*] Error to the Circuit Court, Arenac County; Nelson Sharpe, Judge. istrator, against the Detroit & Mackinac Action by Wallace B. Richardson, adminRailway Company. Judgment for plaintiff. Defendant brings error. Reversed, and new trial ordered. Argued before STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, STONE, and OSTRANDER, JJ. Henry, Henry & Henry, of Alpena (James McNamara, of Detroit, of counsel), for appellant. B. J. Henderson, of Standish, and Hall & De Foe, of Bay City, for appellee. STONE, J. This is an action on the case brought by the administrator of the estate of Edith I. Barhite, deceased, against the defendant to recover damages under sections 6308 and 6309, Compiled Laws of 1897. It is alleged that plaintiff's decedent met her death through the negligence of the defendant in the operation of one of its trains. From a judgment in favor of the plaintiff rendered in the circuit court for the county of Arenac, the case is brought to this court for review upon writ of error. The plaintiff's intestate was an unmarried woman 37 years old at the time of her death. For 20 years she had been teaching school in different places in Michigan. In June, 1911, she had just finished teaching a term in Maple Ridge, Arenac county, and had left intending to go to Hillman, Montmorency county. The defendant operates a railroad from Bay City on the southerly to Cheboygan its northern terminal through the village of Tur *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes ner, in Arenac county, at which place a depot | time. She first went to the depot and left a and depot grounds are maintained by the defendant. Turner at the time referred to herein was a village of between 400 and 500 inhabitants. In describing the general situation of the buildings and tracks in Turner reference is had to the attached map. trunk on the west side thereof. After visiting a store, she went to the Turner Hotel. It was her intention to take the 12:14 a. m. No. 9 train north. She was given permission to remain in the hotel until train time, and she told the proprietor that she did not was put aboard the train, and he offered to wire North Bay City in reference to it, but she said it was not necessary. He gave her the correct time, and saw that her watch was right. He offered to light the depot and leave it open for her, but she said she preferred to remain at the hotel. On the night in question passenger train No. 9 left Bay City, according to the train sheet, at 11:25. It was late, and did not arrive at Turner until 1:10 a. m. On the night in question, Engineer Gurly, then at Bay City, received orders to back up to Sagining, about 25 miles north of Bay City, and at that point to change engines with a passenger train going south drawn by engine No. 24. The engines were exchanged, and Gurly in charge of engine 24 proceeded north towards East Tawas passing through Turner. This engine had a broken back-up eccentric strap on the left side, but this in no way affected the running of the engine. Extra 24, as this train was known, comprised engine No. 24 and tender and a baggage car. The engine was headed south, and the baggage car was coupled to the front end of the engine. The train, therefore, stood so that the tender of the engine was to the north and the baggage car to the south. Extra 24 in this position backed north toward East Tawas. A red light and a white light hung on the advancing end of the tender. There was no headlight on that end. A lighted headlight shone to the south, and into the baggage car which was coupled to the engine. This train left Sagining for East Tawas about 10:45 p. m. Engine 24 carried an automatic bell, and there was testimony that it was ringing throughout the run, and as it passed through Turner. There was also testimony that as the train approached Turner the engineer blew one long whistle, and when within 500 or 600 feet of the depot he blew another crossing whistle. There was a conflict in the testimony as to the time and rate of speed at which extra 24 passed through Turner; the plaintiff claiming that it ran at from 30 to 40 miles an hour, and that it passed through there at 11:50 p. m., while the defendant claimed that it ran through Turner at a speed of from 18 to 20 miles an hour, and at 11:10 p. m. All agree that none of the crew on this train noticed anything unusual in passing through Turner, and nobody had any knowledge of running into or over any person or thing. Freight train No. 17 left North Bay City at 9:17 that evening for the north. The train was a regular one, and comprised 55 freight cars. passed through Turner that night about 12:14 a. m. at a speed of about 20 miles an hour. The headlight on this train was burning and in good condition. That train crew had no knowledge of running into any one. It The baggageman on the passenger train, which arrived at 1:10 a. m., alighted and was the first person to discover the body of Miss Barhite. A box car stood on the westerly side track, the south end of which was from 50 to 70 feet north of the north end of the depot. The baggageman jumped from a door in the baggage car, which was near the south end of the box car. The body was about three feet north of the door of the baggage car about the middle of the box car. Miss Barhite's watch first attracted the attention of the baggageman. It was at his feet as he jumped from the car. It had stopped at 11:50. The body was three or four feet north of the watch, lying about two feet from the rail of the main track between the baggage car and the box car. One limb had been carried up the track, and was four or five rods north of the body. One or two books were found north of the box car. The body was found lying face down, and parallel to, and about two feet from, the main track. There were no electric lights in Turner in the vicinity of the depot, and the station was not lighted. It had not been customary for the defendant to keep its agents at its stations along the line north of Bay City after the evening train went south, which was due to arrive in Bay City at 9:30 p. m. No one saw plaintiff's decedent at the time of the accident whereby she met her death. Upon the trial of the case the jury rendered a verdict in favor of the plaintiff for $3,000. Under the errors assigned the appellant has discussed the questions involved under the following heads: (1) No negligence can be imputed to defendant as a matter of law. (2) The negligence of plaintiff's intestate so contributed to her death as to bar any recovery as matter of law. (3) The cause of the death of the plaintiff was speculative and conjectural, and should not have been left to the jury. (4) The fact that the station was not open and lighted was not the proximate cause of the death of plaintiff's intestate, and should not have been left to the jury in connection with any question whatever. (5) The court erred in instructing the jury respecting intestate's duty to her parents and sister, and contributions to them. (6) The court erred in refusing to instruct the jury as requested by defendant's counsel. (7) The trial court erred in denying defendant's motion for a new trial. Before discussing the assignments of error, it may be well to state that three special questions were submitted to the jury by defendant's counsel. They were as follows: "(1) Was extra train with engine No. 24 going north, with Chambers, conductor, Gurly, engineer, Luce, fireman, and La Barge, brakeman, on the night of June 22, 1911, equipped with one or more lights on the northerly and advancing end of the tender as it passed through Turner?" This question was, by consent of plaintiff's counsel, answered in the affirmative. "(2) Did Engineer Gurly, of above extra, |