text:
    POWERS v. HOUGHTON.
    Malicious Prosecution — Civil Action — Abuse oe Process.
    The defendant in an action of replevin, in whose favor the action was decided, cannot maintain case for malicious prosecution of the civil action where he had sold the property previously to its seizure under the writ of replevin, and had no property interest in the chattels taken.
    Error to Shiawassee; Miner, J.
    Submitted November 19, 1909.
    (Docket No. 30.)
    Decided December 30, 1909.
    Case by Joseph Powers against James D. Houghton and John D. Haskins for malicious prosecution. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed.

      Samuel G. Houghton and Chandler & Friegel, for appellants.

      Odell Chapman (Kilpatrick & Pierpont, of counsel), for appellee.
   Brooke, J.

On October 6, 1905, defendants herein sued out a writ of replevin against the plaintiff herein, before a justice of the peace for Shiawassee county, under which 16 lambs were, by the officer, taken and turned over to defendants. That action resulted in a verdict in favor of plaintiff herein, and the lambs in question were returned to him, the costs were paid by defendants herein, and no appeal was taken. In December, 1906, plaintiff brought suit against defendants, in an action of trespass on the case, for malicious prosecution. Upon the trial, plaintiff herein testified that he had sold the lambs in question on October 3, 1905, to one Collister, receiving from Collister $5 upon the purchase price thereof. This was three days before the writ of replevin was issued. The lambs were taken from him under the writ, when he was in the act of delivering them to Collister. Plaintiff recovered a judgment, and defendants have sued out a writ of error.

We have, then, in the case at bar, this situation: The plaintiff seeks to recover damages for the malicious prosecution of a civil action, by which he was deprived of neither his liberty, reputation, nor property, but simply of the possession of property belonging to another. Pollock, in his work on Torts (8th Ed.), at page 316, states the rule as follows:

“ Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For, in contemplation of law, the defendant, who is unreasonably sued, is sufficiently indemnified by a judgment in his favor, which gives him his costs against the plaintiff.”

See, also, Quartz Hill Gold Mining Co. v. Eyre, L. R. 11 Q. B. Div. 674, 52 L. J. Q. B. (N. S.) 488, where it said:

“ In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.”

This is the English rule, which has been somewhat modified in America. In 1 Cooley on Torts (3d Ed.), at page 345, the rule is stated to be that:

“ In some cases an action may be maintained for the malicious institution of a civil suit, but the authorities are not entirely agreed what cases are embraced within the rule.”

Among those malicious civil suits giving a right of action, he enumerates arrest, attachment, garnishment, insanity cases, injunctions, receivers, and other suits that interfere with person or property. Under the last class of cases, he says (page 348):

“ So a suit for malicious prosecution will lie where the plaintiff’s property or business has been interfered with, by the appointment of a receiver, the granting of an injunction, or by writ of replevin.”

As supporting the text touching writs of replevin, he cites Brounstein v. Sahlein, 65 Hun, 365 (20 N. Y. Supp. 213); McPherson v. Runyon, 41 Minn. 524 (43 N. W. 392, 16 Am. St. Rep. 727). Both of these cases have been examined. In the first, not only was the plaintiff’s property interfered with, but his business was largely injured. In the second, property of the plaintiff had been taken on the writ.

In our own State, the ease of Brand v. Hinchman, 68 Mich. 590 (36 N. W. 664, 13 Am. St. Rep. 362), is to some extent applicable. There, an attachment was sworn out by defendant, Hinchman, and placed in the sheriff’s hands for service. A deputy visited Brand’s store, but made no actual levy, the subject-matter of the suit being adjusted. This court found, however, that there was at least a technical taking and possession of Brand’s property, and the proofs showed that damage resulted to his business as a result of the swearing out of the writ ( without probable cause).

The case of Antcliff v. June, 81 Mich. 477 (45 N. W. 1019, 10 L. R. A. 621, 21 Am. St. Rep. 533), is authority for the proposition that a gross and fraudulent abuse of the process of the court, resulting in damage, gives a right of action to the person sustaining the damage.

But we have been unable to find a single adjudicated case (and counsel for plaintiff has called our attention to none), where it is held that the defendant in a replevin suit, having no property in the goods taken, may maintain an action for malicious prosecution against the unsuccessful plaintiff in the original action. The authorities are not harmonious upon the question, where the property of the defendant in the original action is taken, and upon that question we express no opinion.

The judgment is reversed and a new trial ordered.

Blair, C. J., and Hooker, Moore, and MoAlvav, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    PRATT v. BROADWELL.
    Limitation of Actions — Receivers—Insurance—Corporations —Liability of Stockholders — Assessments.
    The statute of limitations begins to run against an assessment of stockholders in a mutual insurance company, assessed by the receiver under an order of the court, from the date when notice of the assessment was served, not from the end of the period named therein for payment although the notice stated that suit would be brought after thirty days from such service.
    Error to Van Burén; Des Voignes, J.
    Submitted November 17, 1909.
    (Docket No. 53.)
    Decided December 30, 1909.
    Assumpsit by Frank S. Pratt, receiver of tbe Michigan Manufacturers’ Mutual Fire Insurance Company, against William M. Broadwell for the amount of an assessment on a policy of insurance. A judgment for defendant is reviewed by plaintiff on writ of error.
    Affirmed.

      David Anderson and Glenn E. Warner (Frank 8. Pratt, of counsel), for appellant.

      Bussell M. Chase, for appellee.
   Brooke, J.

The facts in this case are stipulated as follows:

“The Michigan Manufacturers’ Mutual Fire Insurance Company was organized under sections 7,317 to 7,336 of the Compiled Laws of Michigan of 1897. On the 13th day of February, 1901, Chester L. Collins, of Bay City, Michigan, was, upon the petition and motion of the commissioner of insurance of the State of Michigan, by an order made and entered in the circuit court for the county of Bay, State of Michigan, in chancery, in cause No. 3,177, duly appointed receiver of said insurance company, with full power to levy and collect by suit, if necessary, any legal assessments made against the members and policy holders of said insurance company.
“On the 27th day of July, 1901, the said Chester L. Collins, receiver, was, by an order of the circuit court, in chancery, for the county of Bay, State of Michigan, directed to levy an assessment of $50,000, or thereabouts, against the members and policy holders of the said insurance company.
“On the 27th day of August, 1901, said Chester L. Collins, receiver, levied an assessment against the policy holders and members, and the proportionate part of said assessment of $50,000 against the defendant and his policy was $33.82. Such sum is conceded to be correct.
“Section 10 of the articles of association provides for the levying and collection of assessments upon the policy holders, a copy of which said articles of association and section 10 is hereto annexed, marked ‘ Exhibit A,’ and made a part of this stipulation.
“Paragraph 6 of the order of the said circuit court, in chancery, of Bay county, making the assessment, to collect defendant’s portion, of which this suit was commenced, reads as follows:
“ ‘It is further directed, ordered, and deoreed that said Chester L. Collins, receiver as aforesaid, do, and he is hereby, ordered and commanded, after said assessment shall have been made as above directed, to notify the policy holders of said company, being the members of said company, and each of them, of the amount of the assessment against such member and make a demand therefor, and proceed to the collection of the amount assessed against each of said members of said company for the amount so assessed with all possible dispatch, and if the member or members of said company shall fail or refuse to pay the amount of his, her or their assessment within thirty days after the mailing of such notice and demand of said receiver, he shall thereupon proceed to collect from such member or members the whole amount of each member’s liability under the policy issued to said members respectively. Said receiver is hereby authorized and directed to resort to such legal measures and proceedings as may be necessary for that purpose.’
“ The said Chester L. Collins resigned as receiver and was discharged, and on the 16th day of December, 1905, Frank S. Pratt was by an order of the circuit court for the county of Bay, in chancery, duly appointed receiver of the said Michigan Manufacturers’ Mutual Fire Insurance Company, and duly qualified, and at the time this suit was commenced was and still is acting as receiver of said company.
“The defendant, William M. Broad well, became a member of the Michigan Manufacturers’ Mutual Fire Insurance Company on the 6th day of June, 1899, and policy No. 1,890 was issued to him. Said policy was a Michigan standard policy, containing a mutual clause, a copy of which is hereto annexed, marked ‘ Exhibit B ’ and made a part of this stipulation. Said policy was canceled on the 7th day of December, 1900, at which time the defendant withdrew from said company, paid to said company the sum of $10.46, it being all claims at that time made upon the defendant, and severed his connection with said company. The amount sought to be recovered in this suit represents the amount assessed against the defendant for losses which accrued from the time the defendant became a member of said company until he withdrew and his policy was canceled. Schedule of losses is hereto attached, marked ‘ Exhibit C ’ and made a part of this stipulation.
“ On the 29th day of August, 1901, a notice of the assessment levied against this defendant was duly mailed to him, which notice was received by the defendant and is hereto attached, marked, ‘ Exhibit D ’ and made a part of this stipulation. Payment of the sight draft mentioned in said notice of assessment was refused by said defendant.
“ This cause was commenced in justice’s court by summons issued on the 26th day of September, A. D. 1907. The summons was personally served on the defendant on the 27th day of September, A. D. 1907.
“ It is further stipulated that, if plaintiff is entitled to recover at all in this action, the judgment should be for the sum of $44.48, with interest at the rate of 5% per annum from the 6th day of December, 1907, with costs. The pleadings in justice’s court were in writing, and are hereby made a part of this stipulation.”

The material part of Exhibit A, referred to in the stipulated facts, is as follows:

“All assessments shall be made pro rata upon all the deposit notes owned by the company. Notice of such assessment shall be sent by mail, to each member, and if any member shall fail to pay such assessment within thirty days from the receipt of such notice, or within thirty days from the mailing of such notice, addressed postpaid, to his last postoffice address, judgment may be taken for the full amount of such notes, but execution shall not issue, except for the amount of assessment regularly levied.”

There is but one disputed question of law. The defendant claims that; the debt or demand sued upon is barred by the statute of limitations. The plaintiff urges the contrary.

It is apparent that the notice of the assessment, made by the receiver, under order of the court, was mailed August 29, 1901, and that suit for the collection of said assessment was not commenced until September 26, 1907.

Plaintiff claims that he had until September 29, 1907, to start suit, by reason of the fact that the order of the court, under which the assessment was made, provided that “if the member or members of said company shall fail or refuse to pay the amount of his, her or their assessment, within thirty days after the mailing of such notice and demand of said receiver, he shall thereupon proceed to collect,” etc. He also points to the provision in section 10 of the articles of association to the same effect, and argues from both of these provisions that, although notice of the assessment was mailed on August 29, 1901, the assessment was not due and payable until 30 days after that date, and therefore that the statute did not commence to run until September 29, 1901.

We are unable to agree with plaintiff’s contention. While it is true that, both in the order of the court and in section 10, it is provided that suit shall be brought after the expiration of 30 days from the date of the.mailing of the notice, there is nothing in the language of either, which indicates that the assessment was not due the moment notice thereof was mailed. Indeed, this is apparently the construction entertained by the receiver, the officer of the court, for, at the time he mailed the notice of assessment, he attached thereto a sight draft for the amount thereof. In any event, we are of opinion that the case is ruled by decisions of this court.

In the case of Wardle v. Hudson, 96 Mich. 432 (55 N. W. 992), the assessment was made on May 25, 1885. It became due and payable, for some reason not pointed out in the opinion, July 15, 1885. Suit was commenced thereon February 24,1892. This was more than six years after the last above-named date, and the claim was held to be barred by the statute. Whether it would have been barred had it been commenced less than six years after July 15, 1885, but more than six years after May 25,1885, is not, in terms, determined by this case as it was not necessary. The language of the decision, however, and the authorities cited, seem to indicate that it would have been so held, had that question been in issue. At page 436 the court says:

" The rule seems to be well settled that the statute of limitations does not begin to run on a deposit note, given by a member of a mutual insurance company, whereby he agrees to pay a sum certain, or any part thereof, when required, and which by its terms is part of the absolute funds of the company, until an assessment is laid. In the present case, the assessment had been made more than six years prior to suit brought.”

Again, in Peake v. Fuller, 123 Mich. 684 (82 N. W. 847), the court said: “The statute did not begin to run until the time the assessment was made” — holding the question to be controlled by Wardle v. Hudson, supra. In both of these cases, the case of Smith v. Bell, 107 Pa. 352, is cited and relied upon. There, the court held:

‘ ‘ A sufficient answer to the plea of the statute of limitations is that the note was not payable at once, or on demand, but is payable by installments, upon the happening of a loss and assessment therefor; and so, until an assessment is made, the statute does not begin to run” — citing several cases.

We think a fair complement to the statement “The statute did not begin to run until the time the assessment was made ” is, from that time, it did commence to run.

The judgment is affirmed, with costs.

Blair, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    WEIDMAN v. PHILLIPS.
    1. Sales — Fraud—Intent Not to Pat Price.
    That the purchasers of lumber represented it was a cash deal, but did not pay for the merchandise, and were hopelessly insolvent, that the lumber was immediately turned over to a creditor of the purchaser, at a price lower than cost, and that the purchaser had no reasonable expectation of being able to pay, tends to show a fraudulent intent which gives the seller a right to rescind and recover the property.
    2. Same — Fraud—Rescission—Instructions to Jury.
    A charge to the jury that to constitute fraud the buyer must have had no reasonable expectation of being able to pay the price within the lifetime of the account, is not error and is unduly favorable to the defendants when coupled with further instructions that an intention not to pay, or to cheat and defraud the owner, must have existed.
    3. Same — Trial—Instructions to Jury — Requests.
    It was not error for the trial court to refuse a request to instruct the jury that the defendants’ contention was correct, and that if they, in good faith, intended to continue in business, such intention would legally rebut any inference that they did not intend to pay for the lumber.
    4. Same — Maturity of Account.
    Under a contract of sale providing that the purchaser should have “two per cent, off within ten days” or “two per cent. off net bill for cash on arrival of car ” the question of the time when the account matured, was not a question of fact for the jury.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted November 19, 1909.
    (Docket No. 96.)
    Decided December 30, 1909.
    Replevin by John S. Weidman against John T. Phillips and Arthur W. Seeley, copartners as Phillips & Seeley. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Davitt & Davitt, for appellants.

      Beach, O’Keefe & Bockwith (Frank McNamara, of counsel), for appellee.
   Hooker, J.

The defendants have appealed from a judgment against them, based on an alleged wrongful conversion of certain lumber.

The plaintiff owned and operated a sawmill and lumbering business at Weidman, Isabella county, Mich. The Ross Bros., consisting of William and Ronald Ross, were engaged in a similar business at Beaverton, Gladwin county. Defendants are lumber dealers, with offices at Saginaw. The plaintiff’s claim is based on the following testimony, which we find it necessary to give somewhat at length, in order that the case be well understood. The plaintiff testified that on the 23d day of October, A. D. 1907, his bookkeeper, one Green, informed him that he (Green) had had a telephone communication from Ross Bros., who were at the time dealers in lumber at Beaverton, Gladwin county, Mich.; that Mr. Green’s talk with Ross Bros, took place about 3:30 p. m., and that about 5:30 o’clock p. m. the plaintiff called up Ross Bros, by telephone, and talked with William Ross, one of the firm.

“Q. Now, the talk between yourself and Ross Bros.— state what talk you had with him.
“A. Well, I called Ross at 5:30, I think, and he asked me some questions about hemlock — if we had some dry hemlock — and I told him we had. He said he had some nice hemlock orders he could not fill, and he wanted to know if I could fill them. He gave me the different kinds of lumber he wanted, and I told him we could fill them. Now,’ he says, ‘ I want spot cash price on this bill stuff, your lowest cash price,’ because, he says, ‘ This is a cash deal.’ He said he had been figuring on coming over to see me. He said we had been neighbors for years and doing business pretty close, and never seen each other, and he was often thinking of coming over to see us, but he hadn’t time, so he called me up to see if we had this stuff. He said: ‘ I want you to make this just as close as you can, because it is a spot cash price.’ So he gave me the stuff over the telephone, and he said he would confirm that the next day by the order. He sent the order over, and we commenced shipping the lumber out to different points.”

Referring to those orders, on cross-examination, plaintiff testified:

“Q: What did he say the orders were ?
“A. Hemlock boards and bill stuff. Also that bill stuff is lumber; that is, two inches thick. ‘ Now,’ he says, ‘ I want your spot cash price on this lumber, your best prices on this lumber, for this is spot cash.’
Q. What more was said, if anything ?
“A. Nothing more; only it was to be spot cash on arrival of car; to be spot cash.
“Q. That was his suggestion?
“A. And I turned around to Mr. Green, and said: ‘ That is the kind of men we want to deal with; they are cash fellows.’
“Q. Well, what was said? Iam asking you to give me a statement, if anything was said in the conversation about bill stuff, in connection with your spot cash price.
“A. Why, he gave me a bill. He told me what he wanted. He wanted this bill stuff and boards, but he wanted a spot cash price on both bill stuff and boards; that is, what he shipped him. Also, that this was the only talk he had with Ross Bros, with reference to the sale of this, lumber, and it was the first business and the first conversation he ever had with them.”

Plaintiff then put in evidence a letter he received from Ross Bros., which was marked Exhibit M, and reads as follows:

“Beaverton, Michigan, 10-33-07.
“Mr. John S. Weidman,
“Weidman, Michigan.
Dear Sir: Please find inclosed confirmation of 6 car loads lumber as per conversation by telephone today. You will please send us the invoices and shipping bills here to Beaverton, and do the best you can as to price less 3 per cent. 10 days from shipment. Perhaps we will need some more lumber, if so will let you know the first of next week.
“ Thanking you, we are,
“Yours very truly,
“Ross Brothers.
“ P. S. Kindly acknowledge receipt of these orders and advise about how soon you will be able to ship same, and oblige,
“ Yours truly,
“Ross Bros.”

Inclosed with Exhibit M were orders for 6 cars of lumber, two of which were returned unfilled. The orders that were filled were put in evidence, and numbered Exhibits 4, 5, 6, and 7. But no part of that lumber came into the hands of the defendants, and recovery against them therefor was not sought.

Plaintiff also put in evidence the following letter to him from Ross Bros., which was marked Exhibit N, and reads as follows:

“ Beaverton, Michigan — 10—36—07.
“Mr. John Weidman,
“Weidman, Mich.
“Dear Sir: We inclose you herewith three orders for lumber to be shipped rough to Ross Brothers, Saginaw, Mich., which, we hope, you will be able to get out soon; of course Gondola cars are scarce now on account of sugar beets, but these orders can be loaded on fiat cars, as they are small loads and are to be shipped only to Saginaw. Please acknowledge receipt of these orders and about how soon you will make shipment, and oblige,
“Yours very truly,
“Ross Brothers.
“ P. S. Please send us the shipping bill’ and invoice as soon as cars are loaded so we can have these ears taken care of as soon as they reach Saginaw.”

Plaintiff also gave evidence tending to show that these orders were filled as directed, and put in evidence the shipping bills; Plaintiff also gave evidence tending to show that the lumber described in Exhibits A, B, and C was shipped according to orders, and after its arrival in Saginaw was transferred by Ross Bros, to the defendants, Phillips & Seeley. And, further, that Ross Bros, did not pay the plaintiff any part of the purchase price of said lumber. Neither did the defendants, Phillips & Seeley, pay Ross Bros, any present consideration, but they were given credit on notes that were made and discounted at the bank, which were taken up by Phillips & Seeley, which notes were all made and discounted at the bank prior to the purchasing of the lumber from the plaintiff in this suit. Evidence was given tending to show the value of lumber shipped by the plaintiff on those orders; that that lumber came into the hands of the defendants, and that it was worth the amount specified in Exhibts A, B, and C, to wit, $906.8?, and further, that the plaintiff first learned that this lumber came into the hands of the defendants about November 30, 1907.

Plaintiff also gave testimony tending to show that, in addition to the lumber which so came into defendants’ hands, Ross Bros, ordered of plaintiff, and he shipped accordingly, at intervals between November 2, and November 16, 1907, inclusive, other lumber, which went into the hands of persons other than defendants, of the value of $2,846.19. That that lumber was shipped according to Ross Bros.’ orders, on shipping bills containing the same terms and conditions as Exhibits A, B, and C. The shipping bills of this lumber were marked Exhibits D, E, E, G, H, I, J, and K. "When these were offered in evidence, counsel for defendants objected, on the ground that they were not material, which objection was overruled and exception duly taken.

‘ ‘ Judge Beach: Why, if the court please, this is lumber that was shipped to Ross Bros, under the arrangement that was had over the telephone. Now, the whole transaction that they had with them with reference to their dealing is perfectly competent here for the purpose of showing the condition that Ross Bros, was in at the time.
“The Court: If I understand you right, the telephone conversation related, not only to this particular lot of lumber, but referred to other lots of lumber, too ?
“Judge Beach: Yes, sir.
“The Court: And what you desire to show is that Mr. Weidman fulfilled his part by shipping all of the order to somebody ?
“Judge Beach: To Ross Bros.; yes.
“The Court: And that none was paid for?
“Judge Beach: None of it was paid for.”

Plaintiff, in company with his attorneys, Prank Dodds and John P. O’Keefe, before commencement of this suit, went to the office of Phillips & Seeley, in the city of Saginaw, and demanded the lumber, and offered to pay the defendants any money that they had paid for freight, and asked him how much money he had paid. Defendant refused to state to him how much he had paid, and said he would not accept it anyway, and when demand was made for the lumber, he then stated that he didn’t have it, and wouldn’t pay for it unless he was compelled to, and gave his reason because Ross Bros, owed him a great deal of money.

To further maintain the issue on his part, plaintiff offered evidence tending to show that on the 2d of December, 1907, an involuntary petition in bankruptcy was filed in the United States district court for the eastern district of Michigan, northern division, against Ross Bros, as a firm and as individuals; that on December 27th they were adjudicated bankrupts, and a receiver of their property appointed, and that on January 17, 1908, a trustee was appointed, Miles J. Purcell, Esq., of Saginaw, being appointed receiver, and later trustee, and that he as such had taken possession of the property and assets of Ross Bros.

It was also shown that Ross Bros, were deeply in debt to defendants; that the lumber was sent to them to apply on their debt, at the price of $15.50 per M. ft., which was $3 per M ft. less than price charged Ross Bros, by plaintiff. It was plaintiff’s claim that the purchase by Ross Bros, was fraudulent, and gave him the right to rescind, which he claims that he did, as hereinbefore stated, as soon as he ascertained that the purchase was fraudulent.

This cause is much like Skinner v. Hoop Co., 119 Mich. 467 (78 N. W. 547, 75 Am. St. Rep. 413). There, as here, one alleged to be insolvent bought property, and sold it to others. There, as here, he promised to pay for it at once, and did not. There we held that, under the facts shown, the cause should have gone to the jury to determine whether the purchaser had at the time a preconceived intention not to pay, or no reasonable expectation of being able to do so. In the present cause there was abundant proof of insolvency, and the situation was such that a juror might legitimately find that the purchaser had no reasonable expectation of being able to pay, even if it should be thought that he may have had any such expectation. It follows that the court did not err in refusing to direct a verdict for defendants, if the case must turn on the question of fraud.

Counsel say that “ Ross Bros, may be censurable for not knowing that their efforts to pull the business through and prevent an ultimate wreck were hopeless, but such conduct on their part was not fraudulentand that, “Concealing their insolvent condition, if they were insolvent and concealed it, was not such fraudulent conduct as would warrant rescinding the sale.” This all depends on the circumstances. It cannot be said that a party may continue to try to keep his business going by buying goods on credit to pay overdue obligations with, under any and all circumstances, and not be guilty of fraud, for the expectation of successfully weathering the storm may be such a forlorn hope as to exclude all reasonable expectation, and then such a purchase as this is fraudulent. We think counsel are wrong in saying that there was no evidence that Boss Bros, did not intend to pay, except their possible inability to pay. The circumstances of their insolvency and its degree of hopelessness, their own knowledge of such circumstances, the immediate transfer of the lumber at a loss, are all circumstances which bear upon the question one way or the other, and it is. for the jury to say, viewing the purchase in the light of all of them, whether they did expect to pay, or whether they had no such reasonable expectations.

Error is assigned upon the following charge:

“For the purposes of this case, if a party is insolvent or in failing circumstances — one or the other, or both — at the time he purchases property, and has no reasonable expectation of receiving money from some source that he has a right to receive it from to meet the obligations, and does not intend to pay for it, under such circumstances the buyer would have a right to rescind the contract, and take the property into his own possession and treat the sale as void, although he may have delivered the property to the buyer. Insolvency alone is not sufficient. It is not the law that because a man is insolvent he cannot do business. It sometimes occurs that a man may be insolvent, yet he may be doing business while in a state of insolvency — that is, his assets may be less than his liabilities — and yet he may continue business and continue the struggle to maintain himself and his credit and his business; and from the very fact that he continues with the struggle, and finally he emerges from it successfully, it is not the law that because a man is insolvent he must lie down and do nothing, so that that (insolvency) alone is not sufficient to warrant the seller in rescinding a contract of this character; but this is an important circumstance to be taken into consideration by the jury relative to other facts that are necessary to be found by the jury, before a sale can lawfully be rescinded. Those other facts must be these in addition to insolvency. He must have at the time he makes the order no reasonable expectation of receiving money to pay for the goods so purchased within the lifetime of the account. He must also have no reasonable expectation of receiving it. That additional circumstance must appear; and then in addition to that— that this is the central or main purpose of the law — he must at that time have in his own mind that intention not to pay for it; in other words, to cheat and defraud the owner of the property.”

It is said that this indicated to the jury that they might base fraud upon a finding that the purchaser had no reasonable expectation of being able to pay during the lifetime of the account. But this is not so, for in the next few lines he speaks of what he calls the “central fact,” viz., “an intention not to pay,” and he adds, “in other words, to cheat and defraud the owner of the property.”

It is urged also that the charge was too restrictive, in that it states that a right to rescind would exist if an insolvent had no reasonable expectation of receiving money from some source that he has a right to receive it from, to meet the obligations, and does not intend to pay for it. It is said that the implication is that, unless they had a reasonable expectation of getting the money so that they could pay at maturity, there would be a right to rescind, and that this excluded the possible receipt of money from a prospective sale of land regarding which negotiations were pending.

We are of the opinion that there is no such implication as that mentioned, and that the language is broad enough to give the jury to understand that a reasonable expectation of getting money from any source was contemplated. But, further, the learned circuit judge coupled with this want of expectation to receive money the want of intention to pay for it (i. e., the lumber) which, in another place in the same portion of the charge, he calls the “ central or main purpose of the law” an intention not to pay— i. e., an “intent to cheat and defraud the owner of the property” — and he couples them again in his recapitulation on page 74 of the record. This was a more favorable instruction than was necessary, as it in each instance coupled an actual intention to cheat with the absence of expectation to be able to pay, while the former would be sufficient ground for rescission without the latter.

Our attention is challenged to several of defendants’ requests to charge. Of these we may say that they were in the main covered by the charge, and the judge so told counsel, who thereupon made some suggestions, to which the court acceded. Particular stress is given on an alleged failure to give requests VII and A-8. VII was given in substance, while we think A-8 was properly refused.

Upon this record the court did not err in failing to submit to the jury the time when payment was due.

We have endeavored to make a critical examination of each point raised, and have found no error.

The judgment is affirmed.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


author: Montgomery, J.

text:
    BREEN v. BREEN.
    Divorce —Alimony and Expense Money — Appeal and Error.
    An allowance may be made by the Supreme Court for solicitors’ fees and expenses in an appeal from a decree refusing complainant a divorce, after tbe filing of a claim of appeal, although the testimony has not been settled or the return made. Act No. 299, Pub. Acts 1909.
    Bill by Adelia M. Breen against William J. Breen for a divorce: On motion of complainant for an allowance of alimony for the purpose of defraying the expense of appealing from a decree dismissing the bill.
    Submitted December 14, 1909.
    (Calendar No. 23,795.)
    Motion granted December 30, 1909.

      C. G. Turner, for the motion.

      Clqpperton & Owen, contra.

   Montgomery, J.

This is an application for an allowance of alimony. It appears that the case has proceeded to a decree in the court below and a claim of appeal to this court has been filed with the register of the court, and a showing is now made for the purpose of securing an allowance for a transcript of the stenographer’s report of the testimony, for printing the brief, services of counsel, registry fee, etc.

. It is objected by the defendant that this court has no jurisdiction of the case for the purpose of allowing this motion. The statute authorizing appeal (Act No. 299, Pub. Acts 1909, § 2) provides:

“Any party desiring to appeal from the order or decree of the circuit court in chancery shall, within forty days after the entry of such order or decree, or, in cases where the cause is heard upon proofs and pleadings taken in open court, or before a circuit court commissioner, or by deposition, then within forty days after the settlement of the case upon such appeal, file or cause to be filed a claim of appeal in writing with the register of the court where such decree or order was entered, and shall also within the said forty days pay a fee of five dollars to the register in chancery.”

It is contended that until the case is settled it may not be appealed to this court.

Under a statute entirely similar (2 How. Stat. § 6647), it was held that, although the time for taking an appeal begins to run from the settlement of the case, the fact that the appeal was taken prior to the settlement of the case is not necessarily a ground for the dismissal of the appeal. Simons v. Simons, 47 Mich. 645 (10 N. W. 360). And in Van Voorhis v. Van Voorhis, 90 Mich. 276 (51 N. W. 281), we entertained jurisdiction to grant alimony in a case in which there had been no settlement of the testimony so far as the record discloses.

The showing before us is that the complainant is occupying a homestead owned by the parties; that she is receiving $18 a month rental for the lower story and living in the second story; that, in addition to this, the defendant is furnishing her an allowance of $35 a month, and the petitioner does not ask for any allowance for her own support. She does ask for $1,186, which consists of an estimated expense of $540 for the transcript of the record and for printing the same and printing the brief, $11 for clerk’s and register’s fees, and $635 for counsel’s services and expenses. In a case in which the complainant has had a hearing in the circuit and been denied relief, there is no such presumption that she is entitled to maintain a bill of this character as to justify an extravagant allowance of counsel’s fees for the preparation and submission of the case. The same counsel is engaged who was employed in the court below. Presumably he is familiar with the testimony, and it is not believed that at any reasonable per diem his services will amount to the sum stated for preparing and submitting this case.

We limit the allowance of counsel’s fees to $200, and, as to any further allowance for services, the parties must be content to await a determination at the hearing. In addition to this, there will be an allowance of $200 for the transcript to be paid within ten days, $300 for the printing of the record, or, in lieu thereof, the defendant is at liberty himself to secure the printing of the record, $40 for printing the brief, and $11 to cover the register’s fee and the fee of the clerk of this court, making a total allowance of $751.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    MURPHY v. MONTMORENCY CIRCUIT JUDGE.
    Mandamus — Public Officers — Elections—Injunction.
    Tbs issuance of a temporary injunction restraining a claimant to tbe office of township clerk from interfering with the officer in possession, and holding over under a claim of right after an alleged tie vote at tbe election, is not such an improper exercise of discretion that the writ will be dissolved by mandamus.
    Mandamus by William W. Murphy to compel Frank Emerick, circuit judge of Montmorency county, to dissolve a temporary injunction.
    Submitted December 14, 1909.
    (Calendar No. 23,504.)
    Writ denied December 30, 1909.

      O’Brien & Francis, for relator.

      Charles B. Henry, for respondent.
   Ostrander, J.

The return of the circuit judge to the order to show cause contains a statement of facts, not traversed, sufficient for the purposes of decision. Upon the authority of Stenglein v. Saginaw Circuit Judge, 128 Mich. 440 (87 N. W. 449), and Blain v. Chippewa Circuit Judge, 145 Mich. 59 (108 N. W. 440), we decline to interfere by mandamus to compel the dissolution of the injunction.

“At the annual township meeting held in the township of Hillman, in said county, on Monday, April 5, 1909, relator and said McNichol were opposing candidates for the office of township clerk. There was only one ticket for the several township offices printed upon the official ballot at such election, and McNichol was the candidate thereon, while relator was running as a slip candidate.
“At the close of the polls on the afternoon of April 5th the inspectors counted the ballots cast for township officers, and found the number to be 141, which agreed with the number of electors voting for township officers as shown by the poll list and tally sheets. The board then canvassed the votes cast for each of said township offices, and, after rejecting imperfectly marked and illegal ballots, found, determined, and declared that, for the office of township clerk, relator and said McNichol had each received 64 votes, and that the result of the ballots for that office was a tie. Thereupon said board adjourned until the next day.
“ On April 6th the board of election inspectors reconvened, and made out and signed in duplicate a statement of the number of votes cast for the several candidates for township offices, and the names of the persons elected thereto, and also showing that, for the office of clerk, the result was a tie between relator and said McNichol, which duplicate statements were then sent, one to the chairman of the board of county canvassers, and one, with the original tally sheets, to the county clerk. The board then proceeded to open the box containing the ballots for State officers and count the same. The electors of this township at this election had also voted, upon a small separate ballot, upon the question of the establishment of a county normal institute. No separate box had been provided for receiving the ballots upon this question, but the same had been deposited in the State box.
“ In counting the votes upon this question, there was found, rolled up inside of a ballot on the normal question, a township ticket upon which the elector had voted for relator for clerk. Relator at once made claim to the board that such ballot should be counted as a vote for him. McNichol disputed this claim, and asserted his own election upon the ballots already counted which the board had decided showed a tie. The board were in doubt upon their right to count this ballot, but marked and preserved the same. Relator then asked the board to ‘ give him the time which the law required ’ to look up the law upon the matter. No formal action was taken upon this request, but it was, at least tacitly, understood by the members of the board that time should be given relator to ascertain his right to have such ballot counted for himself. No definite time for such purpose was either fixed upon or mentioned. While McNichol" was present at this time, it is a disputed question whether he made public opposition. Formally, and upon their record, the board of election inspectors adjourned without day. Upon Wednesday, April 7th, the township board met and allowed and paid the bills of the members of the board of election inspectors for their services. Upon Friday, April 9th, the members of the board of election inspectors came together and demanded of McNichol the box containing the township ballots. Mr. McNichol had possession of such box because of his appointment on March 29, 1909, as township clerk, by the township board, under section 2328, 1 Comp. Laws. This section is as follows:
“ ‘ Section 3338. Whenever there shall be a vacancy, * * * in either of the township offices, except that of justice of the peace and township treasurer, the township board may make temporary appointments of suitable persons to discharge the duties of such offices respectively; and such persons, so appointed, shall take the oath of office, or file the notice of acceptance required by law, and shall continue to discharge such duties until the office is filled by election or until the disability aforesaid be removed.’
“At this time there was an entire vacancy in the office of clerk of Hillman township by reason of the removal of the clerk, Mr. George J. Crawford, from the State, and the resignation of L. W. Ostrander, his deputy. The resolution appointing Mr. McNichol as township clerk is as follows:
“ ‘Hillman, Michigan, March 39, 1909.
“ ‘At a township board meeting held -in the clerk’s office in the township of Hillman, Montmorency county, Michigan, on the above date. Meeting was called to order by the chairman of said board. Roll called and the following officers were present: Supervisor, Robert Rea; Justices, H. Stevens and John H. Gohl. Moved by H. Stevens and supported by John Gohl that George A. Mc-Nichol be appointed as deputy clerk for the office of clerk for the township of Hillman until there is one elected and qualified. All voting in favor, motion carried.’
“ Under such appointment Mr. McNichol had performed all the duties of township clerk, including the keeping of records, signing of orders, and filing of mortgages, both before and after election up to said 9th day of April. Upon said April 9th, upon the members of the board of election inspectors asking Mr. McNichol for the box of township ballots for the purpose of recounting the same, he protested against any such action, and made the claim that it was then too late to recount the ballots or take further action in the matter; that if he had not been himself elected, then there had been no election, and he would hold over under his appointment. Nevertheless the board did recount the township ballots. They first took the township ticket found on April 6th, in the State box, upon which relator’s name appeared for clerk, and put it with the other ballots. And as this made 142, or one more than the number of electors voting for township officers, as shown by the poll and tally sheets, after mixing the ballots, they proceeded to draw out one. The ballot so drawn out was one for McNichol. The board then proceeded to recount the remaining ballots for clerk. And the result was again a tie. The board then informed relator and McNichol they must draw lots for the office of clerk. Mr. McNichol again refused to participate in these latter proceedings for the same reason as before, and again asserted his own election, or if that be found wanting, then no election had been had, and his own incumbency by reason of holding over under his appointment. The board then, upon Mr. McNichol’s refusal to draw lots for the office, themselves drew for relator and Mr. McNichol, and the choice came to relator. The board then sent the following notice:
“‘Hillman, Michigan, April9th, 1909.
“‘County Clerk of Montmorency County.
“ ‘ Dear Sir: The tie between William W. Murphy and George A. McNichol was decided by the election board in favor of William W. Murphy.
“ ‘Respectfully yours,
“‘William H. Draper,
“ ‘John H. Gohl,
“‘George B. Gohl,
“‘Byron Wixson,
“ ‘ Daniel De Geer,
“ ‘ Inspectors.’
“Thereupon relator filed his oath of office, and on April 10th his bond was approved by the township board. On the morning of Saturday, April 10th, the township board held a meeting in the village of Hillman. This meeting was held in the office of one Gorman, and not in the office of the township clerk in the town. hall. This was because Mr. McNichol, who was then publicly, notoriously, and to the knowledge of the relator and the township board claiming to be township clerk, and to be in possession of such office, had gone to Alpena to take legal steps to protect himself in such possession, and had taken the keys to the office of the township clerk with him. Mr. Harry Stevens, a member of the township board, and a defendant in the chancery suit, testified:
“ ‘That at 12 o’clock of that day (April 10th) relator showed me that the door of the clerk’s office had been, broken in and the lock smashed.’
“ Thereupon said Stevens procured a new lock, at the instance of the board, and placed it on the door, and the supervisor gave the key to relator. Relator says he does not know who broke in the door, but I believe it was done in his interest and by some of his partisans. The combination lock on the clerk’s safe in this office had been out of order and not used for some time before this, and relator says he found the inner doors of the safe unlocked, and in this way took possession of the books, papers, and records. Mr. McNichol says that, when he went away in the morning, he left such inner doors securely locked and took the keys with him. I believe if, when relator secured entrance to this office in the manner aforesaid, he found the doors of the safe open, the same had been opened in some manner by the same person or persons who broke open the door of the office. But it was sworn by Mr. Mc-Nichol and practically admitted by relator that on Sunday afternoon, April 11th, relator had asked him [McNichol] for the keys to the safe, and on being refused said he would have to break the safe doors, if McNichol did not give him the keys. Mr. McNichol did not succeed in obtaining the fiat for an injunction upon his bill filed herein upon Saturday, April 10th, but did on Monday, April 12th, and on Tuesday, April 13th, such injunction was duly served upon relator and the other defendants. On April 12th Mr. McNichol took and filed his oath of office and also filed with the township board a bond in the sum of $1,000, with sureties whom the supervisor testified were perfectly good. On Wednesday, April 14th, Mr. Mc-Nichol went to the clerk’s office with some chattel mortgages which had been placed in his hands as clerk for filing, and attempted to file the same and enter them on the proper books. Relator by force ejected him from the office. From that time on relator utterly refused to recognize such injunction, and openly and defiantly disobeyed the same. Upon cause shown, an order issued requiring relator to show cause at the last- May term of court why he should not be punished for a violation of such injunction. A hearing was had upon relator’s answer to such petition, and testimony taken at considerable length in open court.
“ Upon the conclusion of such hearing, and the arguments of counsel, I did adjudge and determine that relator was guilty of the violation of said injunction, and was in contempt of court therefor; but I deferred the imposition of any penalty thereon until the next term of court, because, at the request of both counsel, I had deferred said arguments until after the final adjournment of said May term. The condensation of, and conclusions from, certain testimony attached to relator’s petition for mandamus herein, are taken from a small part of such testimony so taken upon such application to punish for contempt. The relator never moved to dissolve such injunction until after he had been so cited for contempt in disobeying the same. The foregoing statement of the facts, and of all the material facts, as I view them, are my findings and conclusions from the bill of complaint and all of the testimony taken at said hearing.
“ I further find that relator now, as sworn by himself, has no keys to any of the doors of the safe, but the same are still in the possession of McNichol. The case made by the bill, in my judgment at the time, presented the case of a de facto officer seeking the aid of the court in protecting himself, in his incumbency of an office, against violent and forcible dispossession, and from door and lock breakers. When this injunction issued, in my opinion and belief, complainant was still in possession of the books, papers, and records of the office, and had the same locked in the office safe. He had been dispossessed of the mere room in which the business of the office had been carried on, so far as a mere trespass can effect dispossession. But—
“ ‘ Certainly the question of who is really the defacto officer cannot depend alone upon the ability of one to forcibly exclude an officer from his place of business, and while holding him out by force perform its duties to the extent of doing such business as is presented.’ Blain v. Chippewa Circuit Judge, 145 Mich. 59, 66 (108 N. W. 440).
“And the testimony subsequently taken in the contempt proceedings has only strengthened my first opinion.
“ The case presented by the bill justified the issuing of the injunction in the first instance, and hence there was no lack of jurisdiction which would justify relator in ignoring and violating it. And the facts subsequently developed amply sustained maintaining the writ until the rights of the parties could be settled in an orderly manner in a proper suit at law, where alone the title to this office can be tried and determined. And to that end, and for that purpose, it was expressly provided in the order, overruling the motion of relator to dissolve, that such trial at law should be had at once, and without the usual or any delay whatever.- Such order was only made upon such terms, namely:
“ ‘But upon this condition, that, if said defendant Murphy elects to file an information in the nature of quo warranto to test the title to the office of clerk of Hillman township, the complainant plead issuably thereto instanter, and thereafter join issue with the relator upon the merits on or before July 5, 1909. And, further, that upon such issues being joined as aforesaid the said complainant stipulate in writing to try the issues of fact and law so joined, upon the preference of said relator, either in the county of Alpena or in the county of Montmorency, out of term time, on or before the 20th day of July next, and to abide by and perform the judgment of the court thereon. ’

Writ denied, with costs to the complainant in the chancery suit.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    MICHIGAN UNITED RAILWAYS CO. v. KALAMAZOO CIRCUIT JUDGE.
    Mandamus — Injunction—Street Railways — Interurban Cars in Cities.
    On mandamus to compel a circuit judge to dissolve a temporary injunction restraining a street railway company from operating interurban cars on the street railway tracks in the city of Kalamazoo, under a franchise that the company claimed authorized such user, the right to a final restraining order not being clear, and the public sustaining no injury from continued operation of the car, the injunction is ordered dissolved.
    Mandamus by the Michigan United Railways Company' to compel Frank E. Knappen, circuit judge of Kalamazoo-county, to dissolve an injunction.
    Submitted November 16, 1909.
    (Calendar No. 23,675.)
    Writ granted December 30, 1909.

      Sanford W. Ladd (Alfred J. Mills, of counsel), for relator.

      William L. Fitzgerald, for respondent.
   Ostrander, J.

The city of Kalamazoo on October 16, 1909, filed its bill of complaint in the circuit court, in chancery, for Kalamazoo county, against the Michigan United Railways Company, and prayed:

“That a temporary injunction may issue from this court, ordering and directing the said Michigan United Railways Company, its successors, agents, servants, motormen, conductors, and employes, to refrain from operating interurban cars from and off its interurban railroad onto the street railway tracks on Washington avenue and Portage street, in the city of Kalamazoo, and to desist and refrain from turning, reversing, and switching said interurban cars at the intersection of Main street and Portage street in the city of Kalamazoo.
“ That it may be decreed by this court that the operation and running of interurban cars by the Michigan United Railways Company upon Washington avenue and Portage street, and the switching and turning and reversing of the same at the intersection of Portage street and Main street in the city of Kalamazoo, is unnecessary in the operation and management of the street car system operated and conducted by the said Michigan United Railways Company, under its franchise known as Ordinance No. 101, and the amendment thereto, in the city of Kalamazoo, and that the same constitute a nuisance.
“That the said Michigan United Railways Company, its officers, agents, servants, motormen, conductors, and employes, be perpetually enjoined and restrained from operating interurban cars from and off its interurban railroad onto the street railway tracks on Washington avenue, and Portage street, and from turning, reversing, and switching the same at the intersection of Portage and Main streets in the city of Kalamazoo, and that a permanent injunction may issue in the premises.”

On the same day, without notice to defendant, an injunction was issued commanding the said defendant to—

“ Absolutely desist and refrain from operating and running interurban cars from and off your interurban railway on the street railway tracks on Washington avenue and Portage street, in the city of Kalamazoo, and that you desist and refrain from turning, reversing, and switching said interurban cars at the intersection of Portage and Main streets in the city of Kalamazoo, until the further order of this court.”

Thereafter the defendant answered the bill of complaint, and on or about November 1, 1909, moved the court upon the bill and answer to dissolve the injunction. The motion, coming on to be heard, was, by an order of court entered November 19, 1909, denied. Upon the petition of defendant this court issued its order to the circuit judge to show cause why the injunction should not be dissolved. An answer to the petition has been filed, no issues have been framed, and the cause stands for decision upon the petition and answer.

It appears that defendant is owner of the tracks and equipment of an electric railway operated in the streets of the city of Kalamazoo under an ordinance. It is owner, also, of the tracks and equipment by which it operates cars from Kalamazoo to Battle Creek and beyond. The defendant and its immediate assignor have operated cars from points without the city to points within the city, over and upon the streets mentioned in the injunction, and have turned or reversed the large interurban cars by means of a Y in the streets since May, 1900. It operates its cars beyond the city by virtue of franchises granted by the townships and cities through which its line of road extends. It is said on the part of the city that defendant has no right to operate cars from without the city in the streets of the city under the franchise referred to, and that therefore it has no right to operate such cars within the city. It is further contended that the use made of the streets in turning the cars constitutes a nuisance.

On the other hand, the defendant contends: That by the very force of its franchise rights in the city, and the statute, it has authority to operate its cars into the surrounding country; that the original ordinance and its amendments, fairly construed, give it the express consent of the city to do precisely what it and its assignor has for 10 years been doing; that in any event the city is estopped to deprive it in this manner of its use of its property installed without protest on the part of the city and used, as indicated, without objection. The writ, which was granted without considering the question of nusiance, operates to give to complainant all the rights which it seeks to secure by a final decree. It deprives the defendant of the use of its property and interferes with its established business as a common carrier of passengers. No bond appears to have been required of the city to indemnify the defendant. There is no exigency which demands the use of the temporary writ of injunction. It does not appear that complainant, or its citizens, will suffer if the cars are operated, as they have been, until such time as a final hearing and decree may be had. The learned circuit judge was of opinion that, inasmuch as it is admitted that defendant used the streets in the manner indicated, no questions of fact were involved, and the question of right is one of law properly presented upon the application for a temporary injunction.

We do not pass upon the merits of the controversy beyond this: The final right to the writ is not so clear that we should refuse to interfere. In this view of the case, the governing rule is a familiar one. We do not feel called upon to determine, no question of the proper remedy having been raised, whether the order granting the injunction is so far a final order that an appeal would lie. See State Road Bridge Co. v. Saginaw Circuit Judge, 143 Mich. 337 (106 N. W. 394); Schmelzer v. Illuminating Co., 142 Mich. 133 (105 N. W. 129).

The writ of mandamus is granted, with costs against the city of Kalamazoo.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Moore, J. McAlvay, J. Montgomery, J.

text:
    THOMAN v. MILLS.
    Corporations — Accounting — Wrongful Sale of Corporate Assets — Damages.
    Where complainants, who were minority stockholders in an insolvent railroad company whose assets were sold by defendants to a corporation in which they were principal stockholders, without observing the due formalities of law, and without the consent of complainants, bring an action for an accounting, and for damages based on the wrongful sale, and, on the trial, it was shown that at the time of the transfer the liabilities of the railroad company, which were assumed by the purchaser as the consideration, largely exceeded the assets, and the sale was made in good faith, and the result would have been the same if the legal formalities had been observed, a judgment for nominal damages only will be affirmed. MoAlvay and Montgomery, JJ., dissenting.
    Appeal from Ingham; Wiest, J.
    Submitted November 18, 1908.
    (Docket No. 13.)
    Reargued October 11, 1909.
    Decided December 31, 1909.
    Bill by Frederick Thoman and Jacob Stahl against Myron W. Mills and David Mills, executors of the last will and testament of Nelson Mills, deceased, and others, for an accounting. From a decree for complainants for nominal damages only, they appeal.
    Affirmed.

      B. H. Person and Black, Beasoner & Hayden, for complainants.

      Sanford W. Ladd (Walbridge & Kelley, of counsel), for defendants.
   Moore, J.

This proceeding was commenced in April, 1905. The bill of complaint is filed to compel the defendants to account, as for a trust fund, for the assets and property of the Lansing, St. Johns & St. Louis Railway Company, which, it is claimed by complainants, they have attempted to secure for themselves, as officers and directors, and for all profits which accrued to the defendants by reason of their use of the property. The complainants were stockholders in the Lansing, St. Johns & St. Louis Railway Company, and it is claimed that their equitable rights in the property owned by that company have never been cut off by any proceeding authorized by law. ,

The important portions of the prayer for relief read:

“ That the aforesaid Myron W. Mills and David Mills, executors of the estate of Nelson Mills, the said Myron W. Mills, James R. Elliott, and David Mills, and the said Lansing & Suburban Traction Company may be by the court required to account to your orators for the due value and proportion of the interest of your orators in the property as hereinbefore described of the said Lansing, St. Johns & St. Louis Railway Company, and for the profits, advantages, and benefits obtained as herein alleged.”

The case was heard in open court. The circuit judge said (we quote from his opinion):

“ I am satisfied that the defendants must account for the value of the stock held by the complainants in the Lansing, St. Johns & St. Louis Railway Company as of the date it was converted by way of resolution transferring the assets of that company to the defendants’ company, the Lansing & Suburban Traction Co. Creditors of a corporation must proceed to have their claims satisfied in the usual way, and, if they occupy the dual position of creditors and majority stockholders, they must yet observe the rights of the minority stockholders when taking measures to satisfy their claims as creditors. The way adopted may have been a short cut to the inevitable result; but the law does not recognize such short cuts when it deprives any one interested of the right to have due process of law observed. I am not certain whether complainants are entitled to substantial damages, and the question of the amount, if any, they should recover from defendants, is left open for further argument by counsel and further determination by the court. The defendants, having received the assets of the Lansing, St. Johns & St. Louis Railway Company on the 8d day of March, 1904, must account for the value of the stock of the complainants in that company as of that day. * * * I say this now, to indicate that upon the reargument of the question of damages the stock held by complainants will be treated as converted on the 3d day of March, 1904, and the court will fix its value as of that day, and not follow it into other companies, and the question will have to be considered the same as any other conversion of specific property.”

After the reargument the circuit judge expressed himself as'follows:

This court in an opinion filed February 21,1907, held defendant guilty of the conversion of the complainants’ stock in the Lansing, St. Johns & St. Louis Railway Company as of March 3d, 1904, and the matter now for'determination is the value of such stock on that date. To make this determination requires a consideration of the condition of the company on that date, what it had by way of tangible property and prospects capable of being depended upon, and what its obligations amounted to, and its ability to meet the same then or at any future date.
“ Complainants insist the court, in determining the value of their stock, should consider the use made of the assets of the company by the defendants. An objection to this way of figuring value for complainants lies in the fact that the assets in defendants’ hands could be used untrammeled by the indebtedness they were subject to, in the use the company could make of them. In the hands of the company, its property and prospects were so loaded down with its obligations that no substantial value can be placed upon them. They were worth, if anything at all over and above the obligations, only the amount that, under the most favorable circumstances, might have been realized out of their management by the company. The Lansing, St. Johns & St. Louis Railway Company had no funds, or any way to obtain funds. Its property was mortgaged for $500,000 for the construction of the road. It owed nearly $100,000 besides to the contractors for construction, and it owed other debts. Its contract for the construction of the road compelled it for lack of funds to practically give everything to the contractors. It could not meet its obligations. The bonus subscriptions fell flat. Its treasury was empty, and it is safe to say that no one could have been found willing to pay its obligations for all its property and prospects.
“ Complainants had put in the venture in money about $300 each, and for that and their time and efforts had each received stock in the company of the par value of $7,300. I very much doubt, had there been an assessment of $50 on their holdings in February, 1904, whether either one of them would have put that sum into the venture, for, had the mortgage securing the bonds held by the contractors been foreclosed, the contractors would have had to bid the property in, for no bid could have been expected large enough to have paid the contract obligation. The best way I know to determine what the defendants took belonging to complainants is to determine what the complainants had of value in the company on the 3d day of March, 1904. These complainants, together with Frank L. Dodge, filed a bill of complaint against the Lansing, St. Johns & St. Louis Railway Company in March, 1902, asking this court to permit them to withhold the subscription stock from the company, on the ground, among others, that the company was insolvent. The company in its answer denied its insolvency. It was not necessary in that case to decide whether the company was solvent or insolvent; but the position then assumed by these complainants militates against them now upon the question of the value of their holdings in that company.
“Frank L. Dodge sued the purchasers of the Lansing, St. Johns & St. Louis Railway Company in this court for the debt due him from the latter company for services performed by him for it, and these complainants were witnesses for him in that case, and it is a grave question whether they are not now estopped from claiming there was no sale to the Lansing & Suburban Traction Company, for Mr. Dodge’s suit was upon the theory that there was a sale, and therefore an assumption of the debts of the Lansing, St. Johns & St. Louis Railway Company.
“Having in mind what it owed, its prospects and condition, I am unable to say the stock of the Lansing, St. Johns & St. Louis Railway Company was of any substantial value the day defendants converted the same. I quite agree with the counsel upon the rule that, when it cannot be determined with certainty just the extent of damage arising from a conversion, the court should see the innocent saved from loss; but this case does not fall within such rule, for the reason that, before the rule can be invoked, some substantial damage must appear. The defendants being guilty, however, of the conversion of complainants’ stock in the company, and the damages of the complainants being only nominal, the decree will fix the damages at six cents, and no costs will be awarded either party.”

The complainants appealed from the decree in the lower court. The defendants did not appeal. The oral arguments and the briefs of counsel indicate a good deal of bitterness toward each other on the part of the litigants, who say very hard things of each other. "We shall endeavor to make no further reference to that feature of the case.

The first Lansing, St. Johns & St. Louis Railway Company was organized in 1897. Its capital stock was $250,000. Of this stock each of the complainants had 36 shares, of the par value of $100 a share. This company proposed to build a line of electric road from Lansing to St. Johns, and then to St. Louis in this State. It succeeded in securing certain franchises and rights of way and attempted to get some one to construct the line, in April,’ 1900, another company of the same name was organized with a capital stock of $500,000. .Each of the complainants had 72 shares of stock in this company, which they received in exchange for the stock in the former company. Each of the complainants was a director in both of these companies. In January, 1901, for the purpose of paying a debt of the company of $140, each of the seven directors of the company paid in $20 in cash, and each received therefor one share of stock. Shortly after the second company was formed, the work of construction was entered upon by Messrs. Mills, Percival, and Norris, who had a contract with the company, the details of which it is not necessary to relate here, further than to say they were given $500,000 in bonds of the company, secured by mortgage, and $300,000 of its capital stock. At the same time the two complainants placed their written resignations as directors in the hands of Mr. Mills to take effect at any time that he might designate. Later the resignations were accepted and new directors elected in the place of complainants.

In 1902 the litigation arose to which reference was made by the circuit judge in his opinion. Before the sale was made which gave rise to the present litigation, nearly $400,000 had been put into the enterprise by John E. Mills through the assistance of his father, Nelson Mills. The complainants did some work in securing bonuses and right of way. Their cash contribution did not exceed $320 each. It was expected to run the road as an electric road by a method which was in an experimental stage and did not prove to be a success. The road was never built farther than St. Johns. The contractors were not paid according to the terms of their contract. The sums secured in the way of bonuses were small. The affairs of the company were in a bad way. The stock standing in the name of John E. Mills was, by unanimous vote of the directors, after the death of John E. Mills, transferred to Nelson Mills, as was all the unissued stock. This was done because of reasons that were stated in detail in the resolutions, which reasons were proper ones. In March, 1904, a stockholders’ meeting was held. Defendants claim due notice was given of this meeting. Complainants claim they had no legal notice of if. Upwards of 4,000 shares of the 5,000 shares of the capital stock were represented. At this meeting it was voted to transfer the Lansing, St. Johns & St. Louis Railway Company to the Lansing & Suburban Traction Company, if the latter company would assume the debts and liabilities of the former company. This was soon thereafter done. The complainants within a day or two learned of what was done. Later, in March, the action of the stockholders was ratified by the board of directors; but one of them voting against it. The Lansing & Suburban Traction Company also acquired by purchase the Lansing City Electric Railway Company, paying therefor $65,000, and assuming debts amounting to $100,000 or upwards. Later the Lansing & Suburban Traction Company, with many other properties in the central part of the State, became the property of the Michigan United Railways Company. There is nothing in the record to indicate a want of good faith in the sale of the company in which complainants were stockholders; but it is insisted by complainants there was a lack of good faith, and further that, even if there was not, as the forms of law were not followed, a constructive fraud was perpetrated upon them.

We quote from the brief of counsel:

“By becoming officers and directors of the Lansing, St. Johns & St. Louis Railway Company, the defendants became trustees for the benefit of all the stockholders interested in that company. As majority stockholders in the Lansing, St. Johns & St. Louis Railway Company, the defendants also owed a duty to the complainants as the minority stockholders to manage the affairs of the concern for the best interests and profit of all the stockholders.
“ ‘ The directors of a corporation are ordinarily invested with the most extensive powers of management. They are empowered to represent the company in all its business transactions and ventures; and the entire corporate affairs are placed in their charge, upon the trust and confidence that they shall be cared for and managed for the common benefit of the shareholders, and in accordance with the provisions of the charter agreement. It is manifest therefore that the directors of the corporation occupy a position of the highest trust and confidence, and that the utmost good faith is required in the exercise of the powers conferred upon them.’ 1 Morawetz on Private Corporations (2d Ed.), § 516.
“ Directors occupy the position of trustees towards the stockholders. 2 Cook on Corporations (4th Ed.), p. 1262, § 648, note 3. And it has been frequently held that, even though the directors may be acting in good faith in transferring the property of the corporation to themselves, the transaction is fraudulent in law. It was held in the case of Ervin v. Navigation Co., 27 Fed. 625, that the rights of stockholders could not be thus cut off, where a majority of the stockholders attempted to transfer all its assets to another company of which they were owners.
“ ‘Among the disabilities imposed by courts of equity upon those who occupy fiduciary relations towards others, respecting property which is to be administered for beneficiaries is that which precludes the fiduciary from purchasing the property on his own account.’ Ervin v. Navigation Co., 27 Fed. 625.
“ ‘Aside from the want of legal power already referred to, a court of equity will not permit the directors of a corporation, who are not only trustees for the stockholders of the corporation, but for its creditors as well, to thus dispose of the corporate property to themselves, or for their individual benefit. However in fact intended, equity treats such transactions as fraudulent because it operates as fraud upon cestuis que trustent.’ Farmers’ Loan & Trust Co. v. San Diego St. Car Co., 45 Fed. 527.
“ 2 Cook on Corporations (4th Ed.), p. 1288, § 653; Goddard v. Importing Co., 9 Colo. App. 306 (48 Pac. 279); Fishel v. Goddard, 30 Colo. 147 (69 Pac. 607); Eaton on Equity, p. 430, § 205; 1 Beach on Trusts & Trustees, p. 207, § 100; Hindman v. O’Connor, 54 Ark. 627 (16 S. W. 1052, 13 L. R. A. 492, and note) ” — citing, also, Smith v. Smith, Sturgeon & Co., 125 Mich. 234 (84 N. W. 144); Sparrow v. E. Bement & Sons, 142 Mich. 441 (105 N. W. 881, 10 L. R. A. [N. S.] 725).

It is their further claim that the circuit judge was wrong in giving them only nominal damages. They assert that defendants made large sums of money as the result of their conduct. We do not think the questions of law are troublesome, in view of the record as we find it. It will be observed that the complainants do not pray in their bill to be allowed stock in the Lansing & Suburban Traction Company, in lieu of their stock in the former company. A reference to the prayer for relief already quoted will show that complainants seek to recover the value the property of the Lansing, St. Johns & St. Louis Company has been to the Lansing & Suburban Traction Company and to the individuals named as defendants who are stockholders in that company. Counsel for complainants make a computation of values based upon the relations of the Lansing & Suburban Company and two of the stockholders in the prior company and also based upon an entry appearing in- the books of the Lansing & Suburban Company which it is said is an admission of values, though the person who made the entry testified it was a mere matter of bookkeeping and was not based at all upon actual values. A careful examination of the record compels the conclusion that the computation is too chimerical to be accepted as a basis for a decree in favor of the complainants.

The record does not leave the question of values in the field of conjecture. It discloses that in March, 1904, the affairs of the Lansing, St. Johns & St. Louis Company had reached an acute stage. The original purpose to operate the road as an electric road had proven a dismal failure. The receipts from bonuses were very small. The road had no arrangement by which its cars could run into the city of Lansing. Its dummy train was drawn by a steam locomotive. The entire receipts of the road from the beginning of running its cars until March, 1904, a period of 26 months, were less than $8,000. This did not take any account of the interest charge on its debts, which was in excess of $50,000. The company was hopelessly in debt, and the debts constantly increasing, with no relief in sight. Unless conditions soon changed for the better, it could not continue as a going concern. Mr. Mills had invested about $400,000 in money in the undertaking. If he had resorted to the courts to enforce his claim, the road would not have sold for enough to pay it, and the stockholders would have received nothing. We have already recited what was done. There was a failure to literally comply with the law in making the sale; but it was made for an adequate consideration, and for the full value of the property. If all the formalities of the law had been followed, the result would have been the same, and the stockholders would have no reason to complain. The road at this time was insolvent, and the stock was worthless. After the road was sold and the Lansing & Suburban Traction Company had also taken over the Lansing city lines, the Suburban Traction Company was able to borrow, with the aid of Mr. Mills’ indorsement— Mr. Mills was regarded as a very wealthy man — about $400,000. This money was expended in betterments, and the cars were run into the city of Lansing. The gross earnings of the two lines were kept separate, and, while they were operated as an entity, it is not difficult to determine from the record what charge should be made against the St. Johns line as its just share of the cost of operation. These figures show that from the time the sale was made up to the time when the proofs were closed, the net earnings of the line at no time reached the sum of $10,000 a year. This was exclusive of the charge for interest on the debts and some other proper charges. The debts assumed by the Lansing & Suburban Traction Company, as the consideration for the purchase, were in excess of $600,000. The interest charge, of course, would be in excess of $30,000. Not only does the record fail to show that defendants have profited by failing to literally follow the law in making the sale and in taking over the property, but it shows affirmatively that at no time has the property taken possessed any value in excess of its just liabilities.

The cases cited by counsel for complainants have been examined. A reference to them will show that they are easily distinguishable from the case under consideration. It is not believed a case can be found where relief was granted to a stockholder in a prior corporation which was sold to a later corporation under the circumstances disclosed by this record.

The decree is affirmed, with costs.

Blair, C. J., and'GRANT, Hooker, and Brooke, JJ., concurred with Moore, J.

McAlvay, J.

(dissenting). There is no dispute as to facts in this case, and no claim made by any one that the disposition made by the defendants of the stock of complainants in the corporation of which they were officers and directors was lawful or justifiable. Upon this proposition the opinion of Mr. Justice Moore agrees with that of the learned circuit judge who tried the case. There can be no doubt but that both are as to that proposition absolutely correct.

It appears to me the conclusion of Mr. Justice Moore, that it cannot be ascertained what was the actual value of this stock, or that it, in the then condition of the corporation, was of any market value, and therefore complainants are entitled to recover only nominal damages, is not supported by the record, or the principles of law which I think should be applied to this case. The relation between complainants and the officers and directors of this corporation who unlawfully appropriated complainants’ property was a fiduciary relation. They were trustees and bound to care for and protect complainants’ interests, and were strictly accountable to them in case of breach of trust. The manipulation by the defendants, who were active in making the unlawful sale, was not in the interests of complainants; but their property was appropriated and used by them in such a manner as can leave no possible doubt as to the character of these acts, nor as to the intent of these defendants. Defendants have never denied their conduct or intentions. Upon this record they are confessedly guilty, but interpose the defense that the damages on account of the wrong committed are nominal. I do not agree that the record shows the damages complainants have suffered in this case, for the wrongful appropriation of this property, are merely nominal, and, in considering the case, its cost to complainants, or what they may have considered it worth, should not be considered. It was their property and considered by defendants of sufficient value to acquire its control and possession by the means adopted, and presumably necessary to carry out the scheme which they had devised, and which eventually was successfully consummated by the use of this and other stock of this corporation. The record shows that defendants did profit by this transaction. The books also show the same thing. These are admissions by them, and the stock excuse that this showing was a mere matter of bookkeeping deceives nobody. It would be grossly inequitable to allow them to profit by this unlawful appropriation. They are estopped in law and morals from denying accountability for such value as this property has been and is to them. This is a case where complainants are entitled to follow this property into whatsoever form or situation it may be shown to be, and have it restored to them, or recover its fair value in the condition they find it.

“As between cestui que trust and trustee, and all parties claiming under the trustee, otherwise than by purchase for a valuable consideration without notice, all property belonging to a trust, however much it may be changed or altered in its nature or character, and all the fruit of such property, whether in its original or altered state, continues to be subject to or affected by the trust.” 28 Am. & Eng. Enc. Law (2d Ed.), p. 1108, note 10, citing Board of Fire & Water Com’rs of Marquette v. Wil kinson, 119 Mich. 655 (78 N. W. 893, 44 L. R. A. 493), and other cases.

The special prayers of the bill of complaint, and the general prayer for relief therein contained, are in my opinion sufficient to warrant the relief to which complainants are entitled. The powers of a court of equity are broad, and where, as in this case, the acts done are admitted, and the result has been of the nature and extent herein stated, such court does not hesitate to grant relief to parties appealing for the exercise of its equitable powers. The property of complainants appropriated by defendants was impressed with a trust to be followed in their hands or the hands of others with notice, and its value recovered by complainants in whatsoever form found. The clear conception of the equities of the case have been purposely clouded by defendants, whose argument is that complainants’ interest was worth nothing at the time of appropriation, and consequently a decree for a nominal amount was equitable. It would appear that defendants have overlooked the fact that the decree from which they have not appealed decides that there was an unlawful taking, and therefore under the law which we think applies to the case the increased value, if any can be shown was given to it by the activities of defendants, belongs to complainants. The record does not warrant the conclusion that this taking was simply an oversight in service of a notice of the meeting when the action was taken. On the contrary, the record shows the express intention to cut off such of these stockholders as they desired, and leave them to their legal remedy. This active fraud was followed by acts which clearly indicate the intention that, to aseertain their legal rights and interests in this property, stockholders who had been shut out would have no easy task.

An examination into the actual indebtedness of the Lansing & St. Johns Railway Company will, perhaps, be instructive and helpful in solving the difficulties of this case. It was capitalized for $500,000, and bonds of that amount were issued. The construction contract was given to John E. Mills and others to construct this road for its entire length for $100,000 cash, to be paid as follows: $35,000 to be paid on the completion of the first 10 miles, $35,000 when second 10 miles were completed; and the balance when a total of 95 miles was completed; also to issue to them 60 per cent, of the total capital stock on demand, at any time after the contract was executed; and, as a further consideration, to bond the road at $95,000 per mile, and deliver the bonds to the contractors. $500,000 bonds of an authorized issue of $1,750,000 were issued, certified by the Detroit Trust Company, trustee, and delivered to John E. Mills. These bonds were secured by a mortgage. No other bonds were then issued. John E. Mills negotiated a loan of $175,000 secured by a pledge of the bonds and the indorsement of Nelson Mills. The contract entered into was never completed by the contractors. John E. Mills became sick. His father, Nelson Mills, paid the $175,000 note given to the Detroit Trust Company. The. bonds pledged as security were then turned over to him.. No statutory foreclosure and sale of the pledged property was had. In 1909 complainants were voted out of office as directors. Later defendants became directors, and, voting this stock which had been issued to them, controlled the organization. In order to make them eligible, some of them had been given a share of stock each. In. 1903 defendant Myron W. Mills became president and James R. Elliott vice president. Then, for a claimed consideration that rights of way between Lansing and St. Johns had been procured and paid for by John E. Mills, the balance of the treasury stock, being all the remaining unissued stock of the corporation, and all subscription stock issued but not paid for, was voted to be issued to Nelson Mills, successor to all the rights of John E. Mills, giving him control or actual possession of 3,980 shares of the 5,000 shares of stock. This was done without any showing in the record of the amount actually involved. The record shows that the Mills stock was all voted at all of the meetings in favor of these different propositions above stated. The record does not show that any of the defendants except the interest now represented by Myron W. Mills ever paid any consideration for any of. the stock in this company, or invested any money in any of the transactions involved. Defendants claim that this corporation was at that time indebted as follows: Bonded indebtedness and interest, $571,000; balance unpaid on contract for construction, $60,000; total, $631,000. This is the construction contract which John E. Mills and others undertook to perform, but never completed further than .St. Johns, and we do not find in the record that this balance was a valid subsisting indebtedness, nor do we find that more than $175,000 of indebtedness existed at this time against the bonds, which were held by the Mills interest as security for practically all of the indebtedness.

About this time another corporation, called the "Lansing & Suburban Traction Company,” was organized by these defendants for the purpose of taking over the Lansing & St. Johns Company and the Lansing City Electric Railway Company. This last-named road the Mills Company and defendants Elliott and Moore had acquired for $65,000, which was paid by a note of the Mills Company for that amount. In this transaction also none of the defendants except the Mills interest paid any consideration. The transfer of the Lansing & St. Johns Company was made in consideration of the assumption of its indebtedness by the new corporation, when the Mills interest voted the majority of the stock. The Lansing City Electric Railway Company was transferred for $65,000 and the assumption of $100,000 indebtedness. These transfers occurred in March, 1904. John E. Mills had died in July, 1903. Nelson Mills became ill, and, for the purpose of carrying on these transactions, the Nelson Mills Company was organized, which included all of these individual defendants ; Moore and Elliott holding one share of stock each. The articles of incorporation of the Lansing & Suburban Traction Company were filed March 9, 1904. The incorporators were Nelson Mills, Myron Mills, James R. Elliott, and George G. Moore, who were named as directors and officers. Elliott and Moore put no money into the deal. It was capitalized for $1,000,000, of which $10,000 was issued to each of the above named. Nelson Mills died March 15, 1904.

The book value put upon these properties combined in this was $1,727,515.92. This is the evidence defendants claim was only a matter of bookkeeping. Whatever they may call it, it was the basis used from which was deducted all bonds and indebtedness, leaving $1,000,000 credit, upon which the entire stock was treated as fully paid, and the majority part of it issued to and held by defendants as such. At this time some of the original stockholders of the Lansing & St. Johns Company, who were identically interested as these complainants, were given, for their 73 shares, 100 shares of the Lansing & Suburban as fully paid and nonassessable. Defendants Mills and Elliott represented that this stock was worth about par. The rights of these original stockholders were explicitly recognized. A bond issue of the new company was negotiated for $750,000 for the purpose of taking up and canceling the outstanding bonds of the two old companies, and for making extensions and additions to the properties. $300,000 of the bonds of the Lansing & St. Johns Company held by Nelson Mills to secure $175,000, which he had paid as before stated, were at this time canceled, leaving but $200,000 of said bonds outstanding as such security. This was done with the consent of the Detroit Trust Company and Mr. Mills. It will be understood that this cancellation wiped out $300,000 of the claimed indebtedness of the Lansing & St. Johns Company, which defendants insist must be considered in this case as part of its indebtedness. This clearly shows that these bonds of this company were merely security for the indebtedness to Mills. A sufficient amount ($175,000) of the Lansing & Suburban bonds were issued to take up the old bonds of the two roads merged and take care of extensions, etc. All of these bonds were in fact placed in the hands of the Mills Company, which hypothecated them with the Knickerbocker Trust Company for a loan of $450,000. Later another trust deed was made for $1,000,000 to provide for the retirement of the $750,000. The balance of which ($250,000) was used as collateral to loans.

The next step taken by these defendants was a project to merge the Lansing & Suburban Traction Company with several other properties which they had acquired, or intended to acquire, into a corporation called the “ Michigan United Railways Company.” This corporation was organized with a capital of $5,000,000. It made a trust mortgage for $7,500,000 for the purpose of acquiring and paying for the properties to be merged. Defendant Myron W. Mills was president of this corporation, and defendants Elliott and Moore directors. The Lansing & Suburban Traction Company was sold to the new corporation for $1,000,000 of its common stock. Provision was made in the trust mortgage that, of the bonds to be issued, $1,600,000 should be delivered to the president, Mills, or the vice president, Elliott, for which they were not to be accountable to anybody. This was done, and out of the proceeds the Mills Company was paid in full for all claims of every nature which arose out of the transactions had with the Lansing & St. Johns road, and $240,000 were paid in profits to defendants. A more extended statement of the history of this transaction will be found in Dodge v. Mills, 150 Mich. 394 (113 N. W. 1123).

These facts relative to the Michigan United Railways are material as showing that the claim, as above stated, of the Mills Company, was satisfied. This is in fact the culmination of this chapter in high finance. All the facts herein narrated show that a deliberate plan was conceived and carried out to absolutely ignore the rights of complainants in this property. The record shows a strained effort to inflate the indebtedness of the Lansing & St. Johns Company contrary to the facts. It shows that this. property and its prospects were valuable, and so known to be by defendants; that they paid for it about twice as much as for the Lansing City Electric Railway property; that they recieved for it from the Lansing & Suburban par value for all its stock; that they recognized the same rights these complainants are here contending for in others who owned equal stock, and paid them in full in stock, share for share, with an addition, called “a gift,” of 27 shares, making $10,000 to each. The Mills people were simply the bankers of this combination. They were at no time without security which they considered good, and the result shows that their judgment was good. Not only have they been paid in full, but have taken their share of 'the balance of $1,600,000 in profits which have been divided between them, and of the $1,000,000 in stock in the Michigan United Railways, which was distributed to them. As said earlier in this opinion, complainants are entitled to the value this stock acquired in the hands of defendants, which they recognized, and upon which they repeatedly acted, and that was its par value. There is nothing chimerical or speculative about this. It is the application of equitable principles which are fundamental to facts which are not in dispute. Defendants relegated these parties to such rights as the law afforded them, and this court finds that each is entitled to the sum of $7,300, with interest from March 9, 1904.

A decree should be entered in favor of complainants modifying the decree of the circuit court in accordance with this opinion, and with costs of both courts.

Montgomery, J.

I concur in the view that complainants are entitled to recover substantial damages, but am not prepared to say that the amount should be that stated in the opinion of Mr. Justice McAlvay.