(dissenting). There is no dispute about the facts in this case. The question, therefore, becomes one of law. Was there an implied contract between the plaintiff and the defendant by which he rendered services for which the defendant is legally bound to pay? When this service was performed, it is clear that the plaintiff did not understand that he was entitled to any compensation therefor other than what he received, but that he understood that the compensation he received from the defendant covered all the mail service at Niles, except that on the Michigan Central main line, for which the government paid him. The plaintiff understood that the *317contracts made \Vith the defendant and with the government included the carriage of all the mails that arrived at Niles over the defendant’s road. The defendant also understood that the services for which plaintiff was paid included the carrying of all the mails for it. The government did not pay the defendant any specific sum for the carrying of the mail which came over the Michigan Central Air Line-from its depot to the post-office. It appears to have been included in _ the general contract with the defendant for carrying the mails, by which it was required to take the mails from, and deliver them into, all terminal post-offices. It appears now to be conceded that, as to the Air Line Branch, Niles was one ' of its termini; but whether it was so understood during the years for which the plaintiff now seeks to recover does not appear. < Plaintiff received every month $5 for carrying the mails for the defendant at-Niles, and signed the receipts therefor. How can there be any privity of contract where neither party understands a contract to exist? During the seven years for which the plaintiff now seeks to recover, he did not understand that he was rendering services for which he was not paid. Neither did the defendant. Under such circumstances, the law does not, in my judgment, -imply a contract.
The - judgment should therefore be reversed, and a new trial ordered.
Montgomery, J., did not sit.