"Your attention is called to past due account, consisting of invoices July 6th $81.00 and August 5th, $1,224.00, with request that you favor us with remittance for same.

On September 26th, intervener wrote Chas. L. Weil & Co.:

"We will act immediately on receipt of your further advice, as we are very anxious to close the deal and make collection of the amount due us."

On September 30th, Mr. Bardol wrote the Glazier Stove Company as follows:

"Your account amounting to $1,326.34 is past due. These bills were sold on 30 days, and this time has long since expired. We must ask you, therefore, to let us have prompt remittance for the same.

On October 2, 1907, the F. Bissell Company wrote the Glazier Stove Company:

66

'While this matter is still pending, don't you think we are at least entitled to a portion of the amount due us. Usually in such cases about ten per cent. is withheld, to cover any defective work, omissions or changes necessary."

On the same day, in reply to this letter, the Glazier Stove Company said that they would not pay for the apparatus until it had been O. K.'d by Messrs. Weil & Co., and that had not yet been done. On or about October 22d, Mr. Walker, on behalf of the intervener, made an arrangement with Mr. Weil to allow $25 for the misplaced apparatus, and on November 7th Mr. Bardol wrote the Glazier Stove Company as follows:

"Will you kindly favor us with a reply to our Mr. Gray's letter of November 1st regarding account. This matter is very old, and as we feel entitled to the money we must urge you not to neglect the matter longer. Å statement is herewith inclosed, showing balance $1,342.14 all averaging past due."

Under the facts disclosed by the foregoing correspondence, it is the claim of the intervening petitioner that the switchboard in question was personal property, that title

to it never passed to the Glazier Stove Company, that it was never accepted by the Glazier Stove Company, and that, therefore, the Glazier Stove Company having become insolvent and passed into the hands of a receiver, it (the intervener) now has the right to repossess itself of the board in question. It is quite apparent to us that this view of its rights in the premises only presented itself to the intervener after the Glazier Stove Company became insolvent. It is evident that the contract under which the board was manufactured and erected did not contemplate the retention of title in the vendor. The billing of the same to the Glazier Stove Company as goods sold and delivered and the reiterated demands on the part of the petitioner for the settlement of its account alleged to be "due and past due" clearly indicate that the petitioner believed that it had made a sale and delivery of personal property for which it was entitled to receive present compensation in full. It will further be noted that, although the Glazier Stove Company continually objected to a settlement of the account until the adjustment of the differences arising from the misplacement of the circuit breakers and switches by the petitioner, it never either by any act of its own or by Chas. L. Weil & Co., its engineers, indicated an intention to refuse to accept the board. On the contrary, the board was placed in commission on August 22d, very shortly after its erection was completed, and continued in service up to the date of the insolvency. Under the circumstances disclosed by the record, we are therefore of the opinion that the learned circuit judge reached a proper conclusion in the premises.

We do not discuss the question as to whether or not the switchboard when erected became a fixture, as our foregoing conclusions render such discussion unnecessary. The decree is affirmed.

GRANT, C. J., and BLAIR, MONTGOMERY, and OSTRANDER, JJ., concurred.

VILLAGE OF JONESVILLE v. SOUTHERN MICHIGAN TELEPHONE CO.

1. TELEGRAPHS AND TELEPHONES-USE OF STREETS-REGULATION -MUNICIPAL CORPORATIONS-POWERS.

A village corporation authorized by its charter to prevent the incumbering of streets, etc., in any manner whatever, has power to prohibit by resolution a telephone company organized under chapter 177, 2 Comp. Laws, as amended by Act No. 16, Pub. Acts 1899, from erecting its line upon the main business street of the village between certain points, where such regulation will not prevent access to the company's patrons, though it renders such access less convenient and more expensive.

2. SAME-REGULATION-MUNICIPAL CORPORATIONS-POWERS. Where a municipality, in the exercise of its inherent police power, adopts an ordinance reasonably regulating the manner, character, or place of construction of a contemplated line, the telephone company must comply with such regulations and exercise its right of entry under the general powers conferred by the State subject to them.

Appeal from Hillsdale; Chester, J. Submitted November 17, 1908. (Docket No. 110.) Decided December 14, 1908.

Bill by the village of Jonesville against the Southern Michigan Telephone Company to restrain the erection of poles in certain streets. From a decree for complainant, defendant appeals. Affirmed.

Victor Hawkins, for complainant.

H. P. Stewart, for defendant.

BROOKE, J. Complainant in this cause filed its bill to restrain the Southern Michigan Telephone Company from setting a line of poles upon Chicago street, the main thoroughfare of the village, in the block between West and

Maumee streets. After a full hearing the court perpetually enjoined the defendant from the erection of poles upon Chicago street, in said village, between West and Maumee streets.

The material facts in the case are in brief as follows: The defendant company is organized under chapter 177 of the Compiled Laws of 1897, as amended by Act No. 16 of the Public Acts of 1899. Complainant is a municipal corporation organized under Act No. 60, Laws of 1855, and Act No. 27, Laws 1857, as amended by Act No. 408, Laws 1869. Chapter 5, § 2, subd. 8, defining the powers of the common council, provides:

"To prevent the incumbering of streets, sidewalks, crosswalks, lanes, alleys, bridges, or other public places in any manner whatever."

The defendant was, at the time the injunction was issued, engaged in the construction of a telephone line extending through the county of Hillsdale and several other counties in the southern part of the State, and was establishing stations in the several cities and villages along its line of construction. Among other villages which it sought to enter and establish an exchange was the village of Jonesville in the county of Hillsdale. In constructing said line it approached said village from the west, and, without undertaking to secure any ordinance permitting it to enter the village of Jonesville under proper regulation, proceeded to construct its lines through the village. Some discussion between the street commissioner, the president of the village, and the foreman in control of the construction, seems to have been had. But no formal action was taken by the village until after the trouble had occurred, when the village by its council passed a resolution providing that "no poles of any description shall be set in the streets of the village of Jonesville, nor any excavations made therefor, excepting under the direction of the council of said village." And the street committee of said council has been vested with authority to permit such excavations and the erection of poles at the places selected

by them, provided same are not located on Chicago street between a point 75 feet east of the St. Joseph river and Maumee street. On the day on which the trouble arose, the defendant company was undertaking, against the protest of officers of the village and without any authority from the village, to erect its poles and lines upon Chicago street between West and Maumee streets. The protest of the officers not being heeded, the village authorities called out the fire department, hose was attached to a hydrant, and the workmen employed by the defendant company were driven from their work by means of a stream of water. Some of them were subsequently arrested, the cases against them being still pending. The bill of complaint in the case before us was then filed, a preliminary injunction secured, and upon full hearing the injunction above recited was made permanent.

It is the defendant's claim that the village of Jonesville has no right whatever to prohibit it from erecting its line upon any street in the village it may choose for that purpose. It claims further that when, in the construction of its line, it reached the village of Jonesville, it found there no ordinance regulating the method by which it should construct its line through said village. It therefore claims that it had the right to proceed to the erection of its line, and it avers that the character of the proposed construction was such as could not have been prevented by any reasonable regulation which might have been adopted by the village.

There is only one question raised by the record in this case. Assuming that the council of said village had a right to impose such reasonable regulations as it saw fit, as a condition precedent to the entry of the defendant company, whether or not it could, as one of such reasonable regulations, absolutely prohibit the defendant company from going upon a particular street-in this case Chicago street, between West and Maumee streets. Both parties to this controversy have cited and seem to rely upon the case of Michigan Telephone Co. v. City of