text:
    GUTTERSON v. DILLEY.
    1. Pbincipal and Agent —Agency — Evidence — Sufficiency — Fraud. ,
    In an action for fraud and deceit in the sale of lands, where the misrepresentations sued upon were made by an alleged agent of the other defendants, the owners of the land, evidence held, insufficient to require the question of agency to be submitted to the jury.
    2. Same — Evidence—Admissibility.
    The acts and declarations of one who assumes to be acting as the agent of another are not evidence against the supposed principal until the fact of the agency is established by other evidence.
    3. Same.
    The declarations of a person assuming to act for anothei are not admissible to prove either the existence of, or the extent of, the agency.
    Error to Chippewa; Fead, J.
    Submitted April 24, 1918.
    (Docket No. 119.)
    Decided June 3, 1918.
    Assumpsit by Gilbert Gutterson against Delmar M. Dilley, Frank Weston, and Frank P. Chesbrough for fraud and deceit. Judgment for defendants Weston and Chesbrough non obstante veredicto. Plaintiff brings error.
    Affirmed.

      Larmonth & Goetz, for appellant.

      Wiley & Green, for appellees.
   Stone, J.

This is an action for damages for fraud and deceit in the sale of certain described lands in the county of Chippewa. At the time that the claimed false representations were made by defendant Dilley, the title to the lands was in the defendants Weston and Chesbrough. These lands were purchased by the plaintiff through negotiations with defendant Dilley. The first talk was had with Dilley in April, 1915, and the deal was finally closed in June, 1915. It is the claim of the plaintiff that in the transaction, Dilley. was acting as the agent of the other defendants; that at the time of the deal with Dilley he represented to plaintiff that the Norway and white pine had mostly been cut, but that there was cedar and spruce and some hardwood left, enough to pay twice over, the purchase price that they were asking for the land; that the land which Dilley had shown plaintiff, at the time they were there to look it over, had considerable timber on it, and Dilley represented that the remainder . of the land was timbered the same as that they had seen; and that they were only on the land a few hours, going where Dilley directed them to go, plaintiff taking Dilley’s word as to what was on the balance. It is also the claim that some of the land which Dilley showed the plaintiff was not the land described in the deal; that Dilley told the plaintiff at that time that the other defendants, Weston and Chesbrough, were the owners of the land, and that he would get title from them. On the same day plaintiff gave defendant Dilley a check for $150, and on June 12, 1915, sent his check to the Central Savings Bank at the Soo, payable to its order, for $8,846, with exchange. This included the balance due on the lands at $2 per acre and some other items, the deal being for 2,000 acres, less $10 for railway right of way, $6 being added for one-half of revenue stamp and recording of deed. This money was turned over to defendant Weston, and he and Chesbrough deeded and delivered title to Dilley. Plaintiff’s son was with him at the time they were looking over the land, and upon the trial the son corroborated plaintiff as to the condition of the land they saw, and as to the statements made by Dilley. The land was afterwards examined and there was no timber on a large part of it.

Upon the trial no objection was made by any of the defendants to the testimony of plaintiff, or that of his son, as to Dilley’s statements, either as to the timber on the land, the statement as to its value, the ownership of the land, and who Dilley represented, nor was there any motion to strike out such testimony. There is no dispute in the record, and, in fact, defendant Weston testified that he received the $2 an acre for the land to close the deal with defendant Dilley. Weston was the only defendant sworn upon the trial. He testified that he did not know the plaintiff and that he did not make defendant Dilley his agent, and that he and Chesbrough dealt with Dilley as a principal and as an independent purchaser. Deeds had been made early in the year from Weston and Chesbrough to Dilley and placed in the bank for delivery upon payment of the purchase price ($2 an acre), but'Dilley had been unable to raise the money to pay the purchase price. Weston’s testimony was undisputed to the following effect:

“I later sold these lands to.Mr. Dilley. The deeds were made out along about the 10th of January, if I remember right, in January anyway. They were turned over to the Central Savings Bank for collection, as that is the bank I do business with. The deeds were made out to Mr. Dilley at his request. I was getting $2 per acre for the land. * * * I heard Mr. Clark (cashier of the bank) testify that along in June these deeds were finally delivered. I saw Mr._ Dilley in June, along about the 6th of June; he came to my office or place of business over the garage, Soo Machine & Auto Company Garage. I there had conversation regarding these lands. I said: ‘You have been fooling along quite awhile on this land’; ‘Well,’ he says, T want the land still, and I will give you $150 to guarantee, as a part payment, to apply on the payment.’ He paid me $150 that time. He said he had made arrangements for the money, but did not tell me where, nor from whom. He did not tell me he was going to sell the land to Mr. Gutterson. He did not tell me he had had any talk with Gutterson regarding the land.”

Mr. Weston further testified' that at this time the deeds to Dilley, together with the abstract, were still in the bank; that he gave Dilley the abstract, but that the deeds to Dilley remained in the bank (after being in witness’ possession for a few hours), and the bank was instructed to send them wherever Dilley requested. He further testified:

“My agreement with Mr. Dilley was that he was buying those lands from me at $2.00 an acre. That was the only agreement I had with him. That was the only understanding I had with him. Up to the time I received payment for the land I had never seen Mr. Gutterson, had never heard of him. I received payment for the land along the last of June through the Central Savings Bank. I did not pay to Mr. Dilley or any one else commissions for the sale of this land. I did not agree to pay any one. At the time I talked with Mr. Dilley and made the agreement with him I agreed to furnish an abstract.”

A deed was finally delivered from the defendant Dilley to the plaintiff. The deeds from defendants Weston and Chesbrough to Dilley, which had been in the Central Savings Bank, were also delivered, and the chain of title was from Weston and Chesbrough to Dilley, and from Dilley to the plaintiff.

Upon the trial the testimony produced by the plaintiff upon the subject of Dilley’s agency, and which he claims was sufficient to sustain the verdict of the jury, consisted of the following testimony of the plaintiff:

“Q. Did he (Dilley) tell you at that time who was the owner of the land?
“A. Yes, sir.
“Q. Whom did he say was?
“A. Weston and Chesbrough. I have never met either Mr. Weston or Chesbrough. ’ After that he furnished me with an abstract of the property. * * *
“Q. What was said, if anything, at that time as to whom you were getting your title to the property from?
“A. Why, he said that he was representing Chesbrough and Weston and that they had made some arrangements with the Central Savings Bank that Dilley would be — that I could correspond with the Central Savings Bank, and if the title was satisfactory to- send the balance of the money to them, and I sent it.”

It was testified to that this statement' was made by Dilley at the time they were out looking over the land described in the decláration. Also the following:

“He (Dilley) said to me at Trout Lake when I asked him about whom I should make the first check payable to, that I might as well make that to him, and he also said that Weston and Chesbrough might want to handle the whole deal through him, so that he would give the deed instead of them, which I said was immaterial to me, and he said that the bank had it in charge, and that I was to send the balance of the money to the bank.”

At the close of the plaintiff’s case, a motion was made on behalf of defendants Weston and Chesbrough for a directed verdict in their favor, upon the ground, among others, that no agency between the defendant Dilley and the defendants Weston and Chesbrough had been shown. This motion was refused at that time, and the defendants duly excepted. At the close of all the testimony this motion was renewed for the same reason, and the court announced that the question would be reserved and disposed of under the statute. (Act No. 217, Pub. Acts 1915, 3 Comp. Laws 1915, § 14568 et seq.)

The case was submitted to the jury, and a verdict of $2,000 damages was returned against all of the defendants.

After verdict the court considered the question whether a judgment should be directed in favor of the defendants Weston and Chesbrough notwithstanding the verdict of the jury. The learned circuit judge, after listening to the arguments of counsel, reached the conclusion that there was no evidence of the agency of the defendant Dilley, and directed a judgment to be entered against the defendant Dilley, but in favor of the defendants Weston and Chesbrough.

The plaintiff has. brought the case here upon writ of error, and while there are a number of assignments of error, counsel for appellant very properly say that the questions raised under the various assignments of error may very properly be considered together, as there is really but one question, viz.:

“Was. there sufficient evidence as to Dilley’s authority to act for Weston and Chesbrough, to require the question to be submitted to the jury, and their verdict allowed to stand?”

It was. the opinion of the circuit judge that the evidence wholly failed to show a right of recovery as against the defendants Weston and Chesbrough, and he said:

“Upon the proposition of the agency of Mr. Dilley for the other defendants, the facts in this case show beyond any question that, at the time he made the misrepresentations he was not their agent. The representations were made in April, at a time when Mr. Dilley occupied the relation of vendee, or prospective vendee, to the other defendants.
“There is. absolutely no testimony of any kind which would connect Mr. Dilley with the other defendants as their agent, at the time the representations were made. The deal was not completed until June. At that time, according to the testimony of Mr. Weston, which is undisputed, Mr. Dilley was still in the relationship of vendee, and had made a payment of $150 upon the purchase price of the land. The question of whether he was acting as agent for the other defendants under an implied agency, must be determined, not by his own acts, but by the acts of the principals, and there is absolutely no testimony from which it can be inferred, so far as the acts of the principals are concerned, that Mr. Dilley was their agent. * * *
“There seems to me in this case to be an absolute lack of testimony which would connect Weston and Chesbrough with the deal as principals of Dilley, or Dilley with them as their agent, or that connects the plaintiff, Mr. Gutterson, and the defendants, Weston and Chesbrough, in any way. During the whole of the transaction he was occupying the position of vendee, not as agent, and when we view the acts of the principals, upon which the proof of agency must rest, there is no testimony upon which it can be said that they were either authorizing or ratifying Dilley’s acts as their agent.”

We have examined the record with care and fail to find any evidence of the agency of the defendant Dilley. The plaintiff purchased from Dilley and received a deed from Dilley. In his letter to the bank, of June 12, 1915, he stated that he was inclosing his check to pay for lands bought from the defendant Dilley, on which he had already paid $150.

Counsel for appellant, in their brief, state that no statute prohibits the introduction of hearsay testimony, and when it is admitted without objection, it is not an abuse of discretion on the part of the trial judge to refuse to strike it out, citing McWilliams v. Railway Co., 146 Mich. 216. The headnote of that case reads as follows:

“Where plaintiff, without objection, testifies to matters favorable to his case, which are objectionable as hearsay, and defendant on cross-examination brings out further details of the same matters, refusal by the court to strike such testimony is discretionary, it having been received without objection.”

That language was used with reference to a train conductor, and no question was raised as to his being the conductor of the train of the defendant in the case, and he was a witness in the case and testified fully.

The infirmity with the instant case is not that the testimony of the plaintiff to what was said by the defendant Dilley, as to whom he represented, was merely hearsay, but that the testimony was not supported by any further evidence of the authority of Dilley to represent the other defendants. Save in the order of proof, it would not be objectionable for the plaintiff to testify to the statements of defendant Dilley as to whom he represented, the ownership of the land, the timber, etc., if it had been followed by other evidence showing the authority of Dilley to act as the agent of the other defendants, and to represent them in the transaction. The difficulty is, that when the •testimony in the case was closed, there was no proof of the authority of the defendant Dilley as agent. It is elementary that the acts and declarations of one who assumes to be acting as the agent of another, are not evidence against the supposed principal until the fact of the agency is established by other evidence. Had there been evidence establishing the agency, such statements might have had probative force, but Dilley’s own statements cannot be received to establish his agency. The declarations of Dilley could not prove his own agency, or authority, and had no legal force to that end, so as to bind the other defendants. The declarations of a person assuming to act for another are not admissible to prove either the existence of, or the extent of, the agency. An agent cannot prove his agency or its extent by his own declarations. It is hardly necessary to cite authority upon so elementary a proposition. However, this court has frequently spoken upon the subject. Grover & Baker Sewing Mach. Co. v. Polhemus, 34 Mich. 247; Hatch v. Squires, 11 Mich. 185; Bacon v. Johnson, 56 Mich. 182, and cases cited; Bond v. Railroad Co., 62 Mich. 643, 648, 649; Ward v. Dunnebecke, 184 Mich. 703; Underwood v. Town, ante, 55.

A person certainly cannot confer authority upon himself or make himself agent, merely by saying he is one. 1 Mechem on Agency (2d Ed.), §§ 285-291; 1 R. C. L. p. 511, and cases cited; 1 Am. & Eng. Enc. Law (2d Ed.), p. 690, and cases cited in note; Southern Railway Co. v. Grant, 136 Ga. 303; Paulton v. Keith, 23 R. I. 164 (54 L. R. A. 670).

The'learned circuit judge might very properly have directed a verdict in favor of the defendants Weston and Chesbrough in the first instance. In our opinion he did not err in entering judgment in favor of those defendants upon motion.

The judgment of the circuit court is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    LUCE v. STOTT REALTY CO.
    1. Fixtures — Reservation of Title.
    Where the seller of opera chairs installed in a leased thea. tre building reserved the title as security, they did not become fixtures.
    2. Sales — Reservation of Title — Security.
    A written contract of sale of opera chairs to the lessee of a theatre building, together with the testimony of the surrounding circumstances and the intent of the parties, as gathered from the contract, held, to amount to a sale, with the reservation of the title as security for the indebtedness.
    3. Same — Contracts—Intent—Conditional Sales.
    Whether a sale of personal property is absolute or conditional depends upon the contract of the parties.

      4. Same — Landlord and Tenant — Landlord’s Rights — Lease— Notice — Constructive Notice.
    Where actual notice of the lessor’s rights under the lease was shown to have been given to the seller of opera chairs installed for the lessee in a theatre building under a written contract reserving title in the seller, the question of constructive notice became unimportant.
    5. Same — Evidence—General Issue — Statutes—Replevin.
    Evidence of actual notice was admissible, under the general issue, by virtue of section 13102, 3 Comp. Laws 1915.
    6. Same — Landlord and Tenant — Lease—Landlord’s Rights— • Notice — Lien on Personalty Installed.
    Where the seller was notified before the sale that any chairs installed would be subject to the terms of defendant’s lease, which gave defendant a lien on all equipment installed, defendant’s lien was superior to that of the seller.
    7. Same — Evidence—Admissibility—Court Piles.
    The court below was in error in admitting in evidence the files in a suit by the lessor against the lessee, since they were irrelevant and immaterial, and did not tend to show that the lessor had a lien on the chairs.
    8. Same — Replevin—Judgment — Directed Verdict — Determination of Lien.
    Where the only interest the lessor had in the chairs was a lien, the court below was in error in directing a verdict of not guilty in its favor; the lien should have been ascertained and determined and judgment entered therefor.
    Error to Wayne; Murphy, J.
    Submitted April 5, 1918.
    (Docket No. 44.)
    Decided June 3, 1918.
    Rehearing denied January 31, 1919.
    Replevin by Theodore Luce against the Stott Realty Company for the possession of certain opera chairs. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Anderson, Wilcox & Lacy, for appellant.

      Robert M. Brownson, for appellee.
   Stone, J.

This is an action in replevin to recover the possession of certain opera chairs installed in the Broadway Theatre in the city of Detroit, and damages for their detention. On January 81, 1912, and prior thereto, the Stott Realty Company was. the owner of certain vacant premises in said city on which now stands the Broadway Theatre. On that date, under the terms of a written instrument, recorded in the office of the register of deeds for the county of Wayne, on February 13, 1912, entered into by said company, designated as the lessor, and by Benjamin Jacobson and Philip Gleichman therein designated as the lessees, the Broadway Theatre was erected by the defendant, and leased to Jacobson and Gleichman for a term of 10 years from and after August 15, 1912, at an annual rental of $24,640. The material portions of this agreement and lease, which are necessary to an understanding of the issues involved herein, are as follows:

“VI. Lessor to Erect Building.
“Said lessor agrees to erect upon the said premises a theatre building of fire proof construction and so-called Type No. 1, to be 98.47 ft. front on Broadway and 110 ft. in depth, and to fully complete said building except such portions thereof as said lessees are to furnish as hereinafter set out. The said building shall be built in accordance with plans, and specifications drawn by Arland W. Johnson, architect, of Toledo, Ohio; each of the parties hereto receiving a copy of said plans and specifications, dated with even date herewith and signed by the parties hereto; the said plans and specifications are hereby made a part of this lease as though embodied herein. The said lessor shall begin the erection of said building at once and complete the same not later than the first day of October, 1912, unless prevented by strikes, riots, fires, or other causes beyond the control of the said lessor (lack of money to be no excuse), with the following exceptions which the said lessees agree to furnish at their own expense, and in accordance with the said plans and. specifications, to wit; All stage equipment and furnishing, asbestos curtain, act drop, painted curtains or velour curtain, stage braces, medallions, curtains, rugs, stage properties of every description, all dressing room furniture including rugs and mirrors, all carpets and draperies and rugs for all portions of the building, all furnishing of all rooms, all decorating, opera chairs and electric advertising signs. The foregoing parts of the said building and furnishing to be put in by said lessees shall bé furnished as soon as can reasonably be done after the building is ready for the same, and the said building shall be deemed completed in so far as the beginning of the term of. this lease and the beginning of payments of rent are concerned when said lessor shall have completed said theatre building, with the exception of the parts to be built and furnished by said lessees, as above set out. * * *
“VIII. — Liens, Etc.
“Nothing herein contained shall authorize the lessees to do any act or make any contract so as to encumber in any manner the title of said lessor to said premises or to create any liens upon its interest in said land or any buildings at any time standing thereon, it being expressly agreed that the parts of said theatre to be supplied by said lessees as in paragraph VI provided, as well as all repairs and any improvements and alterations in or to said building made by said lessees, shall be paid for in cash or its equivalent; that they will not make any contract or agreement for their part of the construction of the said building or for any additions to, improvements upon or repairs of said building, or of any building at any time standing on said premises, or for any work to be done or materials furnished, without providing in said contract or agreement that no liens shall thereby be created or arise thereunder upon or against said lessor’s interest in the premises; and it is especially agreed (notice being hereby given to that effect) that no contract, transfer, assignment, mortgage, mechanic’s lien or other lien shall in any manner affect the title of said lessor in said premises or its interest under this lease in any buildings, additions or improvements at any time standing thereon.
“XVI. — Lien on Lessees’ Interest.
“The parties hereto further agree that the whole amount of rent hereinbefore agreed to be paid, and each and every installment thereof, of all taxes, assessments, and insurance premiums paid by said lessor under the provisions hereof, shall be and they are hereby declared to be a valid and first lien upon all these parts of the said building furnished by said lessees therefor in pursuance of paragraph VI, and everything furnished in renewal thereof, and all other equipment placed in the said building or upon the said premises by the said lessees.”

Under their agreement to build and furnish certain parts of the theatre building and equipment, Jacobson and Gleichman on September 28, 1912, placed a written order with the American Seating Company of Chicago, to make, deliver and install in the Broadway Theatre 1,642 opera chairs as follows:

646 Style 1041, Main floor ..............@ ?3.80 each.
554 Style 1041, Balcony ................@ 2.80 each
442 Style 9, Gallery .................@ 1.55 each

This written order, besides reciting the terms of payment, the method of installation of the opera chairs, etc., contained the following provision:

“(5) That the title to all of said seating and merchandise and every part thereof, together with the right to possession thereof, shall remain in you until full payment therefor in cash shall have been made as herein provided. And we further agree that in the event of our failing to make payment, or settlement, of the full purchase price, or of any installment thereof, as herein stipulated, or to pay at maturity any note given in full, or part payment thereof, you may, at your election, without demand upon or notice to us, take possession of said property, in which event you may consider all payments which may have been made by us prior to such retaking as payments made for the use, wear and tear of said property and upon the final vesting of the possession of said property in you all further obligation on our part hereunder shall cease, and any notes given by us evidencing any part of the purchase price, and which, at that time may be unpaid shall be canceled and this contract dissolved. Or, in the event of any default on our part as aforesaid, you may, at your election, declare the entire unpaid balance of the purchase price due and payable, and upon the retaking of said property, and upon notice to us of such election, sell said property at public or private sale, but without further notice to us, and apply the proceeds of such sale, first in payment of all expenses and costs of such retaking and selling, and the balance, if any, together with all payments which may have been theretofore made by us, upon the purchase price of said property, paying to us the surplus, if any, and should any deficiency then exist between the purchase price of said property herein agreed by us to be paid, and the net amount so received by you, less the expense and costs of retaking and selling, we agree to pay such deficiency; but under no circumstances shall the title to, or right to possession of said property become vested in us hereunder unless the full purchase price thereof is paid prior to any retaking by you of said property as herein provided.”

Prior to the placing of this order for the opera, chairs by Jacobson and Gleichman, various seat manufacturers had been invited to make proposals for furnishing seats for the Broadway Theatre. The seats to be selected were to be approved by the architect, and with this purpose in view, the architect and David Stott, president of the Stott Realty Company, met the representative of the American Seating Company at the Pontchartrain Hotel in Detroit, where he had the samples of chairs on exhibition. Mr. Stott testified, and he was uncontradicted, that he notified the agent of the American Seating Company, of the Broadway Theatre lease; that the Stott Realty Company was the owner of the property, and that Jacobson and Gleichman were mere lessees; “that the seats as were put into that house became the property of the house according to the terms of the lease, and therefore he must look to them (Jacobson and Gleichman) for the pay.”

On October 30, 1912, by written agreement, the interest of Jacobson and Gleichman, as lessees in the Broadway Theatre lease, was transferred to the United Amusement Company. The consideration for the consent on the part of the Stott Realty Company to such assignment of the lease was the agreement on the part of the United Amusement Company to pay $2,500 per year additional rental to that stipulated in the lease. All of the other terms and conditions of the lease, except the amount of rental to be paid, were stipulated should remain in full force and effect as though the United Amusement Company had been named as the original lessee.

On December 1, 1912, the United Amusement Company placed an amended order with the American Seating Company for the opera chairs to be installed in the Broadway Theatre, by which the quantity of such chairs was to be reduced from 1,642 to 1,496, as follows:

582 Style 1041, Main floor ..............@ $3.80 each
456 Style 1041, Balcony ................@ 2.80 each
458 Style 9, Gallery .................@ 1.55 each

The terms, conditions, and provisions of the amended order are identical with the terms,' conditions, and provisions of the original order, with the exception of the number of chairs to be furnished, the terms of payment, and also with the exception of the following provisions:

“For chairs ordered under terms of contract dated September 28, 1912, and not taken by us, we agree to pay American Seating Company, as compensation therefor, the sum of $100 in addition to the amount of purchase price above specified, said payment to be made with last installment above provided. This compensation is for labor and material expended at, and by American Seating Company in connection with said chairs.
“(4) If for any reason whatsoever, we make any change reducing the quantity of chairs shown by the original seating plan, after said chairs are partially or entirely manufactured, we agree to pay you at the stipulated price, for each and every chair furnished by you in accordance with such original plan (said plan being a part of this contract), whether all of said chairs are installed in the building or not.”

On or about December 30, 1912, the American Seating Company delivered and installed 1,498 opera chairs which were billed to the United Amusement Company at the sum of $4,328.40. The invoice for these chairs recites that the following sizes and quantities of chairs' were “Sold to United Amusement Company”:

Quantity Size Description Price Amount
594 1041 Chairs for Main floor.. $3.80 $2,257.20
456 1041 Chairs for Balcony---- 2.80 1,276.80
448 9 Chairs ............... 1.55 694.40
Cost of labor and material on Balcony Chairs partly manufactured but omitted at your request................ 100.00
$4,328.40

The invoice also contained the terms and dates of payments to be made.

The record is not clear as to the amount of payments made. It was the claim of the defendant that payments were made on this bill by the United Amusement Company until September 1, 1913, when a note for $200, payable three months after date was given, as the final payment. This note bears indorsement on the back of a payment of $53.53 December 3, 1913.

The United Amusement Company occupied and operated the Broadway Theatre until on or about November 21, 1913, when, with the consent of the Stott Realty Company, it entered into a sublease with Benjamin Fay Mills. Mills paid the December rent as stipulated in the lease for the month of December, 1913, but defaulted in the January, 1914, rent, and the same was not paid by any one. No rental insurance, or indemnity insurance was ever taken out, as provided for in the lease. Fire insurance was taken out, but upon failure to pay for the same, it was canceled, and it became necessary for the Stott Realty' Company to take it out and pay for it. Some of the fixtures and furnishings, including the opera chairs involved in this suit, and put into the theatre by the United Amusement Company, in accordance with paragraph VI of the lease, were not paid for. On January 16, 1914, it was claimed that a grossly immoral show was given at the theatre, causing considerable notoriety, and on January 20, 1914, the Stott Realty Company served a notice on the United Amusement Company and Mills, declaring the lease forfeited, and stating the grounds to be the failure to pay rent, to procure rental and indemnity insurance, and the giving of an immoral show, and on the same date made a peaceable reentry into the premises and took possession of all of the property of the United Amusement Company therein contained, and asserted its lien thereon in accordance with the provisions of paragraph XVI of the said lease.

It appeared, under the objection of plaintiff, that suit was commenced on July 14, 1914, by the Stott Realty Company against the United Amusement Company. (Counsel state, but*the record is silent on the subject, that after the trial of the instant case, said suit was tried, a verdict was directed in favor of the Stott Realty Company, and judgment entered for $15,-769.26. ' The case was reviewed in this court on writ of error and the judgment was affirmed, and is reported in 195 Mich. 684.)

On January 30, 1914, the plaintiff acquired by assignment, all of the right, title, and interest of the American Seating Company in and to the so-called contract of conditional sale, and in and to the balance of the purchase price remaining unpaid thereon. On February 10, 1914, the plaintiff served on the defendant by United States mail a written notice that he had purchased the said contract, and was the holder of a $200 note given in connection with said contract, and demanded a return of the said opera chairs. Possession of the said chairs being refused by the defendant, on March 19, 1914, a writ of replevin was issued in this suit, and upon service of the writ, defendant gave a bond to the sheriff, under the statute, to retain possession of the opera chairs until the outcome of this suit. It should be stated that the defendant had no notice or knowledge that the United Amusement Company did not pay cash for the chairs installed, until receipt of the notice from the plaintiff on February 10, 1914. The declaration was in the usual form in replevin. The plea was the general issue with special notice that under the terms of the original leaser and of the written assignment, the chairs in question were installed in said opera house subject to the terms of said lease and assignment, and subject to any claim of defendant under said lease and assignment.

At the close of the evidence the trial court directed a verdict for the defendant to the effect that it was not unlawfully withholding the possession of the chairs from the plaintiff, and a judgment was entered for the defendant accordingly. The plaintiff has brought the case here for review, and by proper assignments of error it is claimed by his counsel that the following questions are raised by the facts and pleadings:

(1) Did the chairs become fixtures?

(2) Was the agreement of December 1, 1912, a contract of sale or a chattel mortgage?

(3) Did the lease of January 31, 1912, create a lien in favor of the lessor, paramount to the title lien retained by the American Seating Company under its contract of December 1, 1912?

(4) Did the court err in admitting in evidence the files in the case of the Stott Realty Co. v. Amusement Co., and in directing a general verdict for the defendant, without having determined the amount of defendant’s lien?

1. The trial court held, in accordance with the claim of the plaintiff, that the chair's did not become fixtures. We agree with the trial court in this holding.

2. What was the nature of the agreement of December 1, 1912? A careful reading of this agreement, the invoice and statement, together with the testimony of the surrounding circumstances, and of the intent of the parties, as gathered from the contract, leads us to the conclusion that the transaction amounted to a sale, with the reservation of the title as security for the indebtedness. Whether a sale of personal property is absolute or conditional depends upon the contract of the parties. Atkinson v. Japink, 186 Mich. 335; Holcomb & Hoke Manfg. Co. v. Cataldo, 199 Mich. 265. In the above cited cases we held that title was retained in the property for security merely, and such, we think, was the case here.

As was said in Chicago Railway Equipment Co. v. Merchants’ Bank, 136 U. S. 268, 280:

“The fact that, by agreement, the title is to remain in the vendor of personal property until the notes for the price are paid, does not necessarily import that the transaction was a conditional sale.”

See, also, Harkness v. Russell, 118 U. S. 663.

While the learned trial judge was of the opinion that the transaction amounted to a conditional sale, we do not disagree with his conclusion, that, under the terms of the instrument, the plaintiff would have the right to maintain replevin, were it not for the third question.

8. Upon this branch of the case the jury were charged as follows:

“It is urged, as a third ground, by the defendant, that, in any event, there has been a breach in the terms of the lease of the property in question; and indisputably under this evidence there has been a breach. The lessees failed at least in the payment of the rental of the theatre; and it is alleged they failed in other respects as well. Examining the lease of the property in this case, which is exhibit 9, and its. assignment, exhibit 10, it is found, in paragraph 16 of the lease, that lessor and lessees agree that, should any default in the terms of the lease be made on the part of the lessee, the lessor of the property would have a right to assert a lien against the improvements put by the lessees on this property; and according to paragraphs six and eight of this lease, part of the very property which the lessees were to install in the theatre were these very chairs. And paragraph eight of the lease provided that, in installing these chairs, the lessees were to pay for them in cash or its equivalent. Now, the lessees failed in observing that condition of their lease; they did not pay for these chairs in cash or its equivalent; but without any knowledge on the part of the lessor, they violated that agreement of theirs, and they bought these chairs conditionally. They furthermore committed a breach of their lease by not paying the rent. So that, under paragraph 16, the lessors, when the default on the part of the lessees occurred, had a right to assert a lien for the amounts due to the lessors, and to claim that lien on those very chairs. That is what the defendant company is doing in this case. The defendant claims that, because of the terms of the lease which had been violated by the lessees, they have a right now to assert a lien against these chairs. That clearly is their right under the very terms of the agreement, unless something has arisen to amount to a waiver of the right or a breach of good faith on the part of the lessors.
“Has there been any breach of good faith on the part of the lessors? Manifestly not. The lessors did not know that these chairs were purchased upon conditional terms of sale. The lessors had the right to presume that the lessees were obeying their contract; and, in buying and installing these chairs, were paying cash or its equivalent for them. The terms of the agreement for the sale of the chairs, exhibit 1, were private and secret, so far as the lessors were concerned, and they had no knowledge of them. What, on the contrary, was the position of the sellers of these chairs, the vendors, the American Seating Company? First, they had actual knowledge, through their agent, who came to Mr. Stott, of the rights which the lessees, who were the purchasers of the chairs, had in and to the premises. They had actual knowledge of that, gained from Mr. Stott, president of the defendant company. Furthermore, since the lease and its assignment, exhibits 9 and 10, were recorded in the office of the register of deeds, in this county, the seller of the chairs, the American Seating Company, had constructive notice of the terms under ‘which the lessees held this property. So here, gentlemen, with actual notice and with constructive notice, the American Seating Company sold, to the lessees of this theatre, these chairs upon conditions and under circumstances which disclosed to the seller the terms under which the lessees were in possession of that property.
“That being so, and the seller, in addition to that, having specific and actual knowledge of the precise use to which these chairs were to be put, namely, their installation in this very theatre, owned by the defendant company, and the defendant company having in no way waived its rights under the lease, but having acted in good faith throughout, it is now in the position to rely on the terms of the lease and to assert a lien against these chairs for the moneys due, arising out of the breach and default of the lessees.”

We agree in the main with this portion of the charge. We think, however, that, as actual notice to the seating company of the defendant’s rights, under the lease, was shown, whether there was constructive notice or not became unimportant. Plaintiff claims that defendant could not properly show actual notice under the condition of the pleadings. We cannot agree with this contention. Such evidence was admissible under the general issue by virtue of section 13102, 3 Comp. Laws 1915.

It is the claim of defendant that the principle of that part of the charge above quoted was applied by this court in Jenks v. Colwell, 66 Mich. 420, and the cases there cited. See, also, Wickes Bros. v. Hill, 115 Mich. 333, 339.

We are also of the opinion that the case does not differ in principle from that announced in American Cigar Co. v. Foster, 36 Mich. 368; Robson v. Railroad Co., 37 Mich. 70, and kindred cases.

In the Foster Case it was held that a chattel mortgage of a stock of goods, which covered expressly, not only all goods then in the store, but all other goods to be thereafter put there, was valid as between the parties, to bind goods purchased by the mortgagor and added to the stock; and was also valid as to a subsequent purchaser who had actual knowledge of the mortgage; and the same doctrine was reiterated in the Robson Case. And the plaintiff stands on no better footing than his assignor.

After the representative of the American Seating Company was expressly notified by David Stott that those chairs, if sold to the lessees and placed in the building, would be subject to the terms of defendant’s lease, that company deliberately and with full knowledge of the situation sold and installed the chairs therein; and under such circumstances it must be held that defendant’s lien became superior to any claim of the American Seating Company, or its assignee. 3

4. We are constrained to hold, however, that under the provisions, of section 13104, 3 Comp. Laws 1915, and the many cases cited and referred to in the note to that section, the trial court erred in admitting in evidence the files in the case of Stott Realty Co. v. United Amusement Co., and in directing a general verdict for the defendant. The files in that case were irrelevant and immaterial, and did not tend to show that defendant had a lien on the chairs. Under the provisions of the statute cited, it was error to direct a general verdict, and enter judgment of not guilty for the defendant. Manifestly, the only interest which the defendant had in the chairs was its lien. That lien should have been ascertained and determined and' judgment entered therefor. In our opinion this action of the court was prejudicial to the rights of the plaintiff, who had a right to know the extent and amount of defendant’s lien. What has occurred in Stott Realty Co. v. United Amusement Co., since the trial of the instant case, cannot be considered upon this record. For this error the judgment of the circuit court must be reversed and a new trial granted, with costs to appellant.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


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    DETROIT SAVINGS BANK v. HIGHLAND PARK STATE BANK OF DETROIT.
    1. Banks and Banking — Trade-Names—Corporations—Equity— Injunction.
    On a bill by the Detroit Savings Bank to enjoin the threatened use of the name “Bank of Detroit” by another banking corporation, held, that the names are so dissimilar as not to require intervention by a court of equity.
    2. Same — Confusion—Evidence.
    Where the two banks were located in the same building in the city of Detroit, evidence as to some confusion on the part of the public, held, to be due to carelessness and not to similarity of names.
    3. Same — Fictitious Names — Corporate Names — Statutes.
    Under sections 7968 and 9018, 2 Comp. Laws 1915, requiring the corporate names of banks and other corporations to be dissimilar to any other, only the corporate name will be recognized, and no rights will be acquired because of a fictitious or popular name occasionally applied by the public.
    4. Same — Geographical Term — Descriptive Name — Injunction.
    The use of the properly descriptive geographical word “Detroit” by a bank in its business name, in connection with the word “Bank,” descriptive of its business, will not be enjoined, when it is acting in good faith, in the absence of estoppel or of actual fraud.
    Appeal from Wayne; Hart, J., presiding.
    Submitted April 19, 1918.
    (Docket No. 11.)
    Decided June 3, 1918.
    Bill by the Detroit Savings Bank against the Highland Park State Bank of Detroit and others to enjoin defendant bank from changing its corporate name to Bank of Detroit. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Miller, Smith, Canfield, Paddock & Perry (Sidney T. Miller, of counsel), for plaintiff.

      Anderson, Wilcox & Lacy, for defendants.
   Stone, J.

The learned circuit judge who heard this case at the circuit, and who filed in writing his reasons for dismissing the bill of complaint, so concisely and clearly stated the issue, the facts found and the law of the case, with his conclusions thereon, which so accord with our views that we adopt the same:

“Court’s Findings of Facts.
“1. That in 1849 the Detroit Savings Fund Institute was organized and began a savings bank business in Detroit. In 1871 it was succeeded by The Detroit Savings Bank, which ever since has done both a commercial and savings bank business in Detroit under that title, now is a prosperous bank there, and is the plaintiff in this suit.
“2. On March 1, 1916, a new bank was organized under the laws of the State of Michigan, with its place of business at Detroit, known as the ‘Highland Park State Bank of Detroit’ which is. now a prosperous bank, and is the real defendant in this suit. .
“3. From the beginning the ‘Highland Park State Bank of Detroit,’ emphasized the words ‘Bank of Detroit’ on all stationery, advertisements, signs, and on all checks, by printing these words in larger letters, for the purpose of distinguishing it from the Highland Park State Bank of Highland Park. This was so prominent that it attracted the attention of the officers of the plaintiff bank, and these officers thought sooner- or later the words ‘Highland Park’ would be dropped.
“4. These banks, at least their main offices, are both located in the Penobscot building, Detroit, across the lobby from each other.
“5. Some time in September, or October, 1916, the defendant bank took steps to change its name to Bank of Detroit, and after some correspondence between •plaintiff and defendant in regard thereto, plaintiff started this suit to restrain defendant from using the name ‘Bank of Detroit’ for the reason the name was alleged to be so similar to plaintiff’s corporate name, that defendant bank had no legal right to make the proposed change. By mutual arrangement no preliminary injunction was applied for, both sides being anxious to have a final hearing and have the question there decided.
“6. Plaintiff has not shown any facts that would indicate the defendant bank has been guilty of any fraud in making the proposed change, or by its conduct should be stopped from so doing, but plaintiff by its proofs attempts to establish public confusion.
“7. The confusion which the plaintiff has shown seems to have been more from carelessness, and lack of ordinary care, than anything else. Some stress is laid upon misdelivery of letters owing to similarity of names. Mr. Garger, the postman, and a witness for plaintiff, says there was not any confusion after the words ‘Bank of Detroit’ were emphasized (R. 60-63). Three specific instances, were cited. One was a boy delivering a message, and he knew there were two banks there, and he thought he would try both, and he tried the plaintiff bank first. It would seem this confusion was due more to location than to names. Another witness did not read the name and attempt to distinguish but simply hurried into plaintiff bank to cash his check. The third, a girl, realized the mistake when she got to the window to have her check certified. Outside of these three cases the proofs are largely, on the part of plaintiff, that there was confusion, without tracing it to similarity of names, or else in the opinion of the witnesses there was liable to be confusion.
“8. The Germans use ‘Spar’ for savings and the Polish use the word ‘Oszczednosci/ so in those languages, there is a distinguishing word in the two titles, which would prevent confusion.
“Conclusions of Law.
“1. I do not find that the plaintiff has shown in this case by (sustaining the) burden of proof that there would be confusion owing to similarity of names. In a large city, where two banks are located in the same building, there would be some confusion, if names were entirely dissimilar, and I think that is what has happened here. If the three people, who were specifically mentioned, were confused, when the words Highland Park State Bank of Detroit were on the checks and windows, it would seem they would be deceived under any circumstances. This impresses me as resulting from haste and carelessness, which is always apt to occur under such conditions. All corporations, doing banking business, have the word ‘Bank’ in. A great many corporations use the word ‘Detroit’ and if no two corporations can use the word ‘Detroit’ in their title, no matter what the arrangement in the same is, or other conditions are, then there are many, many corporations- entitled to redress in the court. I do not think that a corporation, in the use of a name, has to guard against carelessness, haste, thoughtlessness, or things of that nature, but it has a right to presume people will use ordinary care to prevent confusion.
“2. I do not think mere occasional or extraordinary circumstances establish public confusion.
“3. I think, under the proofs here, the law, considering the volume of business done, would be bound to say there was no public confusion.
“4. I cannot conclude from the testimony here that the public, using ordinary care, will be misled by the alleged similarity of these names.
“5. I think the Detroit Savings Bank and Bank of Detroit are dissimilar names within the meaning of the law, both in reference to banking, and other corporations, and as far as equity would apply.
“6. The bill, therefore, should be dismissed, with costs to defendants.”

A similar question was before this court in Michigan Savings Bank v. Dime Savings Bank, reported in 162 Mich. 297. In reversing a decree for the complainant in that case, Justice Ostrander, in a unanimous opinion, used the following pertinent language:

“It is not claimed that the defendant bank has any fraudulent purpose — a design to mislead the public or to injure complainant — in changing its corporate name. No director of one bank is also a director of the other, no contract relations between the two institutions are relied upon by the complainant, and defendant bank is not estopped to use the name. But it is claimed that if two banks, with offices upon the same street, in the same city, use names so similar, confusion and injury will result; that the statute forbids the defendant bank to assume a name so similar to that of complainant bank, and that equitable principles support the decree appealed from.
“The banking law, 2 Comp. Laws, § 6091, requires persons associating to organize a bank to specify in the articles of association, among other things,—
“.‘The name assumed by such bank, which shall be, in no material respect, similar to the name of any other bank organized undei the laws of this State.’
“So Act No. 232, Pub. Acts 1903, in section 2 thereof, relating to names to be assumed by corporations, contains the proviso that—
“‘No name shall be assumed already in use by any other existing corporation of this State, or corporation lawfully carrying on. business in this State, or so nearly similar as to lead to uncertainty or confusion.’
“Courts of equity are frequently called upon to remedy conditions which grow out of the use by a corporation of a name similar to the name of another corporation, carrying on a business of the same character. In such cases it is usually, if not. always, true that relief is granted because experience has demonstrated that the public is misled, and the corporation first established is defrauded on account of the similarity of the names. We assume that the statutes referred to were intended to prevent, to some extent, the conditions which in such cases, when they arise, make a resort to the courts necessary. In this view of the legislation, in its enforcement by the .courts as a preventive measure, it is necessary to consider, in advance of a demonstration based upon experience, and in a case where neither corporation has, or can acquire, the general right to an exclusive use of the words employed in the name, whether it is likely that the public will be misled, and whether the complaining corporation is likely to be injured. It is evident that experience, not in the particular case, but in other cases, must still be employed in determining the fact, and that mere conjecture that some confusion may result is not ground for granting equitable relief. We may also consider that if relief is refused and conjecture is in actual experience made fact, the complaining corporation may have its remedy.
“We are not impressed that the testimony introduced on the part of complainant supports even the conjecture that the public, using ordinary care, will be misled by the alleged similarity of the names of these corporations. If it is true, and we assume that it is, that the public is apt to seize upon some part of the corporate name and use it as descriptive of the whole and as designating the particular bank, we may also assume that the words ‘Michigan Savings.’ in one case, and ‘the Michigan’ in the other, will be apt to be used and will be properly and sufficiently distinctive. It is the general rule that when they are properly descriptive, the use of geographical words in a business name will not be enjoined, in the absence of estoppel or of actual fraud, or'public misleading. In enforcing a statute intended to prevent some of these results, it must be made to appear that it is reasonably certain that they will follow the use of the name sought to be enjoined. The principle is the same in either case.”

The dissimilarity or unlikeness of the title “The Detroit Savings Bank” and “Bank of Detroit” are so great, and so striking, that no argument, it seems to us, is necessary.

Upon the subject of public confusion, a careful reading of the evidence leads us to the conclusion reached by the trial court. Such confusion as was shown was due to carelessness and lack of ordinary care, and not to similarity of names.

Some claim is made by plaintiff that it has come to be known, sometimes, as “The Detroit Bank,” “Detroit Bank,” or “The Detroit.” The fact, if It be a fact, that such a pseudonym, or fictitious name has been occasionally used, will not be availing here. The plaintiff must stand on its corporate name. Manifestly, both of the quoted statutes recognize the corporate name only. Nobody would doubt the right of the defendant bank to use the word “Bank,” as descriptive of its business. May it not also use the geographical word “Detroit,” in connection with the word “Bank,” as properly descriptive, when acting in good faith, and in the absence of estoppel or of actual fraud? We think so, in view of the Michigan Savings Bank Case, supra.

An examination of the record shows that the usual, abbreviated, popular name applied to the plaintiff, is “Detroit Savings,” thus rendering confusion still more unlikely. With the questions of similarity of assumed name, and public confusion disposed of, very little remains to be said.

It is claimed by plaintiff that, independently of the statute, it is entitled to relief on the general equitable principle that where a corporation has built up a business of its own, no other corporation has the right to assume a name so similar as to mislead the public, and Lamb Knit-Goods Co. v. Lamb Glove & Mitten Co., 120 Mich. 159, and other cases are cited. The cases cited turn upon the question of such similarity as to be liable to mislead the public — or to lead to confusion of the public.

Both questions of fact having been found against the plaintiff, in what has been already said, in our opinion it is not entitled to the relief prayed. The decree of the circuit court is therefore affirmed, with costs to the defendants.

Ostrander, C. J., and Bird, Moore, Steere, and Kuhn, JJ., concurred. Brooke and Fellows, JJ., did not sit.


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    DECKE v. BAKER. BAKER CLAY CO. v. DECKE.
    1. Corporations — Stock and Stockholders — Promotion Stock-Fraud — Contracts.
    On a bill by a stockholder to compel a promoter to return to a corporation shares of stock issued to him by it in pursuance of a written contract between defendant and his associates in the organization of the corporation, on the ground of fraudulent representations to plaintiff in the sale of stock to him, evidence held, insufficient to sustain the charge of fraud.
    2. Same — Blue-Sky Law — Securities.
    Whether the securities act (Act No. 143, Pub. Acts 1913) applies or not, stockholders of a corporation may not object to the issuance of stock to a promoter, in pursuance of an agreement, upon fulfillment of the service agreed upon by him, where the State does not complain.
    3. Same — Equity—Public Policy.
    If the facts be conceded to be as claimed by the corporation in its cross-bill, there would be no ground for equitable relief, and, where no principle of public policy is violated, the parties will be left in the position in which they have placed themselves.
    Appeal from Eaton; Wiest, J., presiding.
    Submitted April 16, 1918.
    (Docket No. 33.)
    Decided June 3, 1918.
    Bill by George Decke against Eugene H. Baker and the Baker Clay Company to compel the return of corporate stock to defendant company and for an accounting. Defendant company filed a cross-bill asking the same relief. From a decree dismissing both bill and cross-bill plaintiff and cross-plaintiff appeal.
    Affirmed.

      Lyon & Moinet, for plaintiff.

      Cassius Alexander, for defendant company.

      Harry H. Partlow (Elmer N. Peters, of counsel), for defendant Baker.
   Stone, J.

The original bill in this case was filed to compel the defendant Baker to return and deliver to the defendant Baker Clay Company, a corporation, certain shares of stock issued and delivered to him by said corporation, upon the theory that said stock was unlawfully issued and delivered. Also that in case said Baker had sold and transferred any of said stock that he account to the corporation for the same. The corporation was made a defendant in the original bill. It answered, admitting the allegations of the bill, and also filed a cross-bill, substantially containing the same allegations as the original bill, so that the two cases practically involve the same issues, and were heard as one case.

The plaintiff in his original bill avers that in the summer of 1914 he was solicited and induced by the defendant Baker to subscribe for ten shares of the capital stock of a corporation to be formed, and paid $1,000 therefor; that thé corporation was organized on January 5, 1915, and capitalized at $150,000; two-thirds common, and one-third preferred stock; all of the par value of $100 each. The original bill alleges that defendant Baker was the promoter of the enterprise, and induced the plaintiff to subscribe for such stock upon a representation that he, Baker, was to be connected with the management of the corporation and was to receive certain shares, to wit, $15,000 par value of the shares of stock, when the business of said corporation had become and was such that it was upon a 10 per cent, dividend paying basis; that no mention was made in said articles of association of any intention on the part of any one that Baker was to have or receive any of the shares of stock as “promotion stock”; that the attention of the proper State authorities was not called to the fact that it was intended that Baker was to receive certain shares of the stock as compensation for his services in and about the organization of the corporation, but, on the contrary, such matter was kept away from the attention of such officers, to the end that Baker might obtain from the corporation a certain large number of the shares of stock for, and as, “promotion stock,” and in fraud of the State, and of the rights of other subscribers to the shares of such stock. After alleging a preliminary organization, prior to the execution of the articles of association, it is. alleged that after the due execution of such articles, and after the election of a board of directors, and at a meeting of such board on February 1, 1915, a resolution was by unanimous vote adopted, to issue to defendant Baker $15,000 of stock, not more than 50 per cent, of which should be preferred stock; that afterwards, and at a meeting of said board of directors held on August 2, 1915, another resolution was adopted, reciting that said Baker had completed the sale of $120,000 of the stock of said corporation during the month of June, which stock had been fully settled for, and that therefore in compliance with the original agreement with said Baker, there should then and there be issued to him sufficient stock of said corporation, so that he should have been paid for his services a total of $30,000 in stock of said company; and that said stock was issued to Baker accordingly.

Defendant Baker, in his answer, denied that he ever made to the plaintiff, or to anybody, the representations alleged in the bill, but claimed that said stock was issued in accordance with the plan and statement in writing, made a part of the original stock subscription agreement, signed by all subscribers.

Upon the hearing the plaintiff testified that he never saw, or heard of the “statement,” attached to the subscription list. Referring to defendant Baker he testified:

“He said to me that the company was capitalized at the sum of $150,000, that $120,000 should be sold, and that he should receive $30,000. * * * I said to him that the amount that he received for his services seemed out of proportion to the amount for which it was capitalized, and the services which he would be liable to render on such an occasion; He said to me that he was to have $15,000 of the stock when all the stock was issued, that he was to have the balance of it when the company was upon a 10 per cent, net dividend paying basis; that he would work for the company at a hundred dollars per month until the company was also on a 10 per cent, net paying basis, if they wanted him to, and subsequently he would expect to receive more compensation. * * *
“Q. Did you' read anything beyond your subscription — the statement at the back?
“A. No, sir.”

He also testified that he relied upon the statement. It was conceded that the company has never been placed on a 10 per cent, dividend paying, basis.

The learned circuit judge, who heard and saw the witnesses testify at the hearing, filed an opinion which so fully covers the issues involved that we quote therefrom as follows:

“Mr. Decke, as a stockholder of the Baker Clay Company, claims that the company directors have exceeded their authority and violated the law of the State in granting defendant Baker $30,000 of the shares of stock of the corporation for claimed services in promoting and perfecting the incorporation; also that Baker made representation to him at the time of soliciting his subscription for stock that $15,000 of the stock was not to be issued to Baker until the corporation was on a business basis paying dividend of 10 per cent, upon its stock.
“It appears that Mr. Baker was the originator of the idea of forming the clay product company organized under the name of the Baker Clay Company.
“After preliminary examinations of the quality and quantity of clay upon a certain farm, Mr. Baker obtained a purchase option from the owner and started to get parties interested in subscriptions for stock in a corporation to be organized.
“Subscriptions for stock were solicited by Mr. Baker, and persons were asked to sign for the same upon a paper having a typewritten heading briefly describing the intended purpose of organizing a corporation.
“This heading also referred to an annexed statement, making its conditions a part of the agreement under which stock was subscribed, the heading being as follows:
“ ‘The subscribers to the stock for the purpose of providing working capital stock for the Baker Clay Company, the corporation to be organized under the laws of the State of Michigan for the purposes and on the conditions as set forth in the annexed statement hereby severally subscribe, etc.’
“The material part of the annexed statement is as follows:
‘Fourth: Said Eugene H. Baker is to it ave charge of the completion of the organization of said company and the sale of the capital stock, and for his services in making the preliminary investigations of the character and quality and extent of the clay material on said lands, and in procuring the options for the purchase of the same, which options are to inure to the benefit of said company, and for the doing of the various things incident to the formation of said company and the sale of its capital stock, said Baker is to receive twenty per cent, of the gross amount of stock issued by said company.’
“This statement also provided in substance that Baker should remain with the company until the business was on a 10 per cent, dividend paying basis on its common stock.
“Plaintiff claims that Baker came to him, solicited his subscription and informed him that he, Baker, was to have $30,000 of the stock of the company, $15,000 of which was. not to be issued until the company was on a dividend paying basis - of 10 per cent, of its common stock. He claims that he did not read the paper, but relied .upon Baker’s representation and subscribed for $1,000 of the stock, and after the organization of the company he paid $1,000 for his stock, and later learned that the board of directors authorized $30,000 of the stock to be issued to Baker for his services in promoting the corporation, and that .the corporation was not then and never has earned any dividend. Defendant Baker denies all misrepresentation.
“I am satisfied that the statement was attached to the subscription paper when it was signed by the parties agreeing to take stock, and it, therefore, became a part of the agreement under which stock was to be issued.
“The testimony relating to representations made by Baker necessarily rests upon recollections of words claimed to have been spoken some little time ago.
“The statement attached to the subscription paper provided that Baker should remain with the company until the business was on a 10 per cent, dividend paying basis on the common stock. This, however, did not make his right to have $30,000 of the stock contingent upon the business paying a 10 per cent, dividend.
“Mr. Ewing, a witness for plaintiff and a subscriber for stock, testified that Baker informed him that he, Baker, was to have $30,000 of the stock, but would not claim $15,000 of it until the company was on a 10 per cent, dividend paying basis, and he subscribed for stock believing the law would not allow Baker $30,000 of the stock.
“Mr. Shane, also a witness for plaintiff and a subscriber for stock, and one of the original directors of the company, and now its vice president, testified that Baker told him that he was to have 20 per cent, of the stock for his efforts, and he informed Baker that it was too much, but subscribed and had the subscription paper in his possession, and there was no statement attached showing stock was to be given Baker, and he never saw or heard of such statement until the day of the hearing.
“The records of the corporation show the following resolutions introduced by Mr. Shane:
‘“February 1, 1915. The following motion was offered by D. D. Shane and supported by A. E. Lambie: “I move that in view of the fact that E. H. Baker has secured cash subscribers to the Baker Clay Company’s stock amounting to more than $100,000, of which more than $87,000 has been paid in, and that as the subscription paper signed by each subscriber provided that E. H. Baker should receive 20 per cent, of the stock of the company as remuneration for his efforts, it is the sense of the directors that there should now be issued to E. IT. Baker stock to the amount of $15,000, not more than 50 per cent, of which shall be preferred stock.” Motion carried by unanimous vote of directors.
“ ‘August 2, 1915. “Moved by D. D. Shane and supported by A. E. Lambie, that as E. H. Baker has completed the sale of $120,000 of the stock of this company during the month of June, which stock has been fully settled for; therefore, in compliance with the original agreement with said E. H. Baker there should now be issued to him sufficient stock so that he shall have been paid for his services, a total of $30,000 in the stock of the company.” Motion carried.’
“The best test to apply to the conflict of the testimony in reference to the corporation and Mr. Baker and his associates in the organization thereof, and the value of Mr. Baker’s labors, and the contractual relation between all parties in the absence of fraud, is the action of the corporation itself through its proper officers, in granting Baker just exactly what he was to have under the writing and what he claims he was to get.
“Plaintiff does not seek to avoid his subscription because of fraud in inducing him to sign, neither could he do so now considering his subsequent action and ratification by way of this bill in aid of his rights as a stockholder. He does seek to have the court declare the rights of Baker to be such only as he claims Baker represented the same to him. If the other subscribers fully understood the agreement, then to hold there was a different agreement because of a representation made to plaintiff would change the contract between Baker and all others as well.
“If no principle of public policy has been violated in this matter, then I am inclined to leave the parties just where they have placed themselves. I find no principle of public policy violated by the issuance of the stock to Mr. Baker and nothing shown to Mr. Baker, and nothing shown to authorize the court to set aside the action of the directors.
“Mr. Baker, as originator and promoter of the scheme to organize and operate a clay product plant, may have for his pains whatever his associates, in the organization agreed he should have, and the corporation through its directors has given him, unless this runs counter to the securities law or he has been guilty of fraud in bringing it about.
“The value of a promoter’s services is not to be measured as upon a quantum meruit, if the persons in interest have expressly agreed to the compensation and their officers have carried the same out.
“Having in mind all of the evidence, the court is unable to find the fraudulent representation claimed.
“Section 20 of the Michigan securities act (Act No. 143, Pub. Acts 1913) provides:
“ ‘Nothing in this act shall be construed, as applicable to the issuance by a corporation of a stock dividend to its stockholders, nor to the issuance of stock by a corporation to the original subscribers to its articles of incorporation.’
“It is contended by plaintiff that this does not exempt the issuance of stock to subscribers to the capital stock who have not actually signed the articles of incorporation.
“This construction is. too narrow. If 30 persons agree in writing to take stock- in a corporation to be organized, and 10 of them execute articles of incorporation to carry out the plan and purpose of all, then the prohibition of the securities act does not extend to any of the 30, for the corporation is the creation of all.
“Subscribers are not purchasers of stock within the purview of the securities statute; they are creators of the corporation as much as are those who execute the articles of incorporation in behalf of all.
“The legislature fixed a point beyond which the securities act should apply, leaving all before that point as without the statute and the mere work of the organizers of the corporation, because such stockholders are in a position to be able to -know all about the corporation.
“The bills are dismissed.”

An examination of the record leads us to agree with the ciréuit judge in his findings of the facts, where the testimony was. conflicting.

It should be borne in mind that here the contemplated plan or agreement was carried out and fully executed by the corporation and the parties, and the stock was issued and delivered to the defendant Baker by direction of the corporation. The State authorities are not here complaining, and under the circumstances the plaintiffs are in no position to complain, whether the securities act applies or not. It is not necessary to decide whether the securities act would apply were this a timely proceeding to enforce its provisions. These bills were not even filed to set aside the scheme or plan, for fraud or violation of the statute, but were in affirmance of the same, save as to the stock issued to the defendant Baker. If'the facts were conceded to be as claimed by the cross-plaintiff, Baker Clay Company, there would be ho ground for equitable relief as to it, but the parties would be left in the position in which they have placed themselves. Walhier v. Weber, 142 Mich. 322, 325; Benson v. Bawden, 149 Mich. 584; 4 Thompson on Corporations (2d Ed.), § 3916; 9 Cyc. p. 546.

We agree with the conclusion of the circuit judge. The decree is affirmed, with costs to the defendant Baker.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.

       Repealed by Act No. 46, Pub. Acts 1915; see 3 Comp. Laws 1915, § 11947.


text:
    LARAWAY v. WILLIAMS.
    1. Drains — Unlawful Construction — Action — Trespass —Certiorari.
    In an action .against a county drain commissioner and the sureties on his official bond for damages to plaintiffs’ land by the unlawful construction of a drain, held, that certiorari was not their exclusive remedy, but that an action of trespass could be maintained.
    2. Same — County Drain Commissioner — Liability.
    Where plaintiffs’ land was omitted from the survey bill and the description of a drain about to be constructed, and no release of right of way, as required by section 4883, 1 Comp. Laws 1915, was ever obtained from plaintiffs nor any proceedings taken in the probate court to determine the necessity for such drain or for the taking of private property for the use and benefit of the public, and the just compensation to be paid therefor, and in tbe construction of such drain a watercourse on plaintiffs’ land was destroyed, the drain commissioner was liable for the damages to plaintiffs’ freehold in an action of trespass.
    3. Same — Payment of Tax — Waivek.
    The payment under protest by plaintiffs of the tax assessed against their land for the construction of said drain did not operate as a waiver by them of any damages they were entitled to recover by reason of the trespass.
    4. Same — Damages—Excessive Verdict — Gkeat Weight of Evidence.
    Where the evidence as to plaintiffs’ damage was contradictory, but a half score of witnesses, including the purchaser of the land from plaintiffs, testified that the damages for the destruction of the watercourse far exceeded the amount awarded, a verdict for $575, held, not excessive, nor against the great weight of the evidence.
    Error to Calhoun; North, J.
    Submitted April 17, 1918.
    (Docket No. 114.)
    Decided June 3, 1918.
    Case by Jerome V. Laraway and another against Lewis Chester Williams and others for trespass. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      Stewart & Jacobs and James Cleary, for appellants.

      Howard W. Cavanagh and John W. Bailey, for appellees.
   Stone, J.

This case grows out of an alleged trespass on lands owned by the plaintiffs as tenants by the entireties, and described as the north half of the southeast quarter of section 34 in the township of Battle Creek, claimed to have been committed by the defendant Williams, as drain commissioner of the county of Calhoun. The other defendants are the sureties on defendant Williams’ official bond. The alleged trespass arose in the construction of the so-called Fuller drain, which deepened and straightened a stream called Minges brook, which ran across the northwest corner of plaintiffs’ said land for a distance of from 8 to 10 rods. Defendant Williams was drain commissioner for said county from January 1, 1910, to January 1, 1916.

On the 10th day of January, 1912, an application was filed with defendant Williams, as such commissioner, for the locating and establishing of the said drain, which traversed lands in the townships of Leroy and Battle Creek. After the required notices to the clerks of the respective townships, and on the 21st day of May, 1912, the township boards of the two townships made an order determining the necessity for said drain. The drain was then surveyed, a survey bill prepared and filed, and on March 31, 1913, defendant Williams, as commissioner, filed his first order of determination. On December 15, 1914, he filed his final order of determination, and on December 31, 1914, he let the contract for the construction of the drain. Thereafter the benefits were apportioned, and while the land of the plaintiffs was in the assessment district, and was assessed for benefits in the sum of $72 which they paid under protest; by a mistake the land of the plaintiffs was omitted from the survey bill and the description of the drain. No release of right of way, as required by section 4883, 1 Comp. Laws 1915, was ever obtained or asked for from the plaintiffs, nor was any proceeding taken in the probate court of the county for the appointment of special commissioners to determine the necessity for such drain, or for the taking of private property for the use and benefit of the public, and the just compensation to be paid therefor. Minges brook was a natural stream of running water, which had for many years supplied water along its course to people who were the owners of property through which said stream ran; and the plaintiffs had the use and enjoyment of the same in the watering of their stock, etc., and it is claimed that the same was of great value, and enhanced the value of their said farm.

The particular matters complained of by the plaintiffs are that said Williams, as. such commissioner, removed from the said premises the use and enjoyment of such watercourse by causing said drain to be laid out and dredged to a great depth at a distance of about 30 feet from the west line of said premises, the right of way of which drain, as laid out and constructed, was described as 100 feet in width, being 50 feet on either side of the center thereof, 20 feet of which right of way was on the said premises of the plaintiffs, and that by reason of the digging and construction of said drain, large quantities of earth were dumped on plaintiffs’ premises destroying the fence upon the line, and entirely destroying and removing the said watercourse from the said premises of the plaintiffs, and absolutely drying the same up, and destroying its use and benefit to the plaintiffs, notwithstanding the fact that no right of way had ever been obtained from the plaintiffs, nor permission in any way given the said defendant Williams to come upon the said land, or pile large quantities of dirt thereon, or remove the natural water supply therefrom.

The drain stakes being on the center line of said drain, were not on plaintiffs’ premises, but west thereof, and if was the claim of the plaintiffs that when they learned of the location of said drain they applied to the said defendant Williams, and that he advised them that he would not change the course of said Minges brook, but would leave the supply of water upon their premises, and would change the course of said drain so as to leave the water supply on the premises of the plaintiffs. But that notwithstanding such promise and agreement said drain was unlawfully and wilfully dredged and constructed 30 feet west of the plaintiffs’ premises, to a great depth, so that the water from Minges brook was attracted thereto, and drained therein, leaving the premises of the plaintiffs barren of any water, and causing them great damage.

The plea was the general issue, with a notice that the plaintiffs agreed with the said Williams that said drain should be constructed on the line between the lands Of the plaintiffs and those of the owner immediately west of said plaintiffs, and that when the construction of said drain approached the lands of the plaintiffs they were to inform the said defendant Williams, and an arrangement was to be made whereby said ditch was to be dug upon said line, and that plaintiffs did not so inform said defendant, and he had no knowledge of’the time when the drain was constructed past the premises of the plaintiffs. .

Upon the trial there was not much conflict of testimony as to the facts, save upon the questions of what the agreement was, if any, between said plaintiffs and the defendant Williams, and the amount of damages.

The case was submitted to the jury in a very clear charge, and two special questions were also submitted to be answered, as follows:

1. “What amount, if any, do you allow the plaintiffs as damage awarded because of the dirt excavated from the Fuller drain having been thrown upon plaintiffs’ land?

2. “What amount, if any, do you allow the plaintiffs as damages awarded because of their having been wrongfully deprived of their, water rights (if you so find)?”

The jury made no answer to the first question, but answered $575 to the second question, and their general verdict being for the plaintiffs in that'sum a judgment for the plaintiffs for $575 and costs was rendered.

The defendants made a motion for a new trial based upon the following grounds:

1., That the court erred in not giving defendants’ first, second, and third requests to charge. Defendants’ first request was to the effect that the jury be instructed to return a verdict of not guilty for the reason that the plaintiffs failed to pursue their remedy by writ of certiorari, and had no right to bring this action. The second request was for a like verdict, for the reason that the undisputed testimony showed that the plaintiffs expressly requested, and consented to the construction of the drain, and granted the right or license to the drain commissioner to construct said drain, using a portion of plaintiffs’ land as a right of way, and the plaintiffs by reason of such action could not attack the validity of the drain, or the legality of its construction. The third request was for a like verdict, because plaintiffs’ declaration did not allege, nor did their proofs show, or tend to show fraud upon the part of the drain commissioner, or that he lacked jurisdiction in the locating and establishing of said drain; and that certiorari, in the proper court, and at the proper time, was the sole remedy.

2. That the court erred in instructing the jury as follows:

“In this' construction of the drain with which we are concerned in this case, since the right of way thereof extended over the west line of the plaintiff’s land and upon his land, it was clearly the duty of the drain commissioner, since the plaintiff did not give a release of the right of way and of any damages which might result to him from the construction of the drain, to have instituted in the probate court of this county statutory proceedings of the character to which your attention has just been called and thereby afford to Mr. Laraway his day in court, so that it might be determined whether there was a necessity within the terms of the statute for a drain and for taking Mr. Laraway’s land or property rights therefor; and further, for determining what amount of money would be fair compensation therefor, if his property was to be damaged or taken for such purpose.
“The undisputed evidence here shows that Mr. Williams did not do this, but on the contrary, without taking or instituting such proceedings in the probate court, he caused the drain to be constructed adjacent to the plaintiff’s property, and incident to such construction the dirt excavated from the drain was deposited upon the plaintiff’s land and the water of the creek which theretofore had flowed across plaintiff’s land was diverted from its natural course and the plaintiff deprived of his right of access thereto and his use thereof. Since the drain commissioner did not comply with the requirements of the general drain law in doing this work or in causing it to be done by the contractor, he is not protected by the fact that he was acting in the official capacity of a drain commissioner, and therefore in the eye of the law he committed a trespass, and he is liable for the damage, if any, that resulted to the plaintiff in consequence thereof, unless the plaintiff has been shown to have done something which constitutes an estoppel or a waiver of his right to recover such damages.
“As a matter of law I say to you that the plaintiff has not been shown by the evidence in this case to have estopped himself or to have waived his right to recover for any damage that he may have sustained, unless it was done by his agreeing with the drain commissioner, if he did so agree, that as the dredge which was used in the construction of this drain approached the plaintiff’s land, he, the plaintiff, would notify the drain commissioner, who would thereupon attempt to have the course of the ditch slightly varied upon the right of way of the drain, in such a way as to continue the flow of the water either upon or adjacent to the plaintiff’s land, and notwithstanding such agreement upon the part of the plaintiff he failed to say anything to the drain commissioner, and in consequence thereof the course of the ditch was not changed and the plaintiff because of his own fault was thus deprived of the use of the watercourse which had theretofore passed over his land. In such an event the plaintiff would not be entitled to recover for any damages resulting from being deprived of his former water rights. But even under these circumstances the defendant would not have had a right to have deposited the dirt excavated from the ditch upon plaintiff’s land unless he changed the course of the drain in compliance with the plaintiff’s request, and if any damage resulted to the plaintiff therefrom he is entitled to recover to the extent of such damage caused by the dirt being deposited upon his land so far as the damage is shown by the required measure of proof.”

8. That the court erred in charging the jury as follows:

“In passing upon this case you should bear in mind that there are no other circumstances shown which would justify the defendant in removing the water from the plaintiff’s land. The water right was an appurtenance which belonged to the plaintiff’s land, and to the extent of its value as such was a property right, and is as fully protected by the law as any other property right, and if wrongfully removed a right of action accrues to recover for any and all damage resulting. In other words, no one has the right to wrongfully remove a watercourse from the land of another.
“In this connection I say to you that the plaintiff, Mr. Laraway, was under no obligation to take any legal or forcible steps to prevent the drain commissioner from going upon his premises or piling the dirt thereon, or removing the water therefrom, and that the commencement of this suit to recover damages for such action on the part of the drain commissioner is a proper proceeding to bring to test out the question as to whether or not there is a liability for the acts of which the plaintiff complains. And I charge you that the payment under protest by the plaintiff, Mr. Laraway, of $72 which was taxed as the amount of benefits against his farm does, not in any way operate against him as a waiver of any damages he may be entitled to by reason of the trespass upon his land, the piling of dirt thereon, destroying his fence, and the removal of his water rights.”

4. That the court erred in submitting the question of damages to the jury.

5. That the court erred in charging the jury as follows:

“It appears in this ease that since the plaintiff started this suit he has sold the land in question and therefore he no longer has an interest in it. But I charge you as a matter of law, that his having sold the land would not affect his right to recover, if he has otherwise established such right. In other words, for the purposes of this suit, the plaintiff stands in exactly the same position as though he was still the owner of the land.”

6. That the court erred in submitting the second special question to the jury.

7. That it was error to submit to the jury any question of damages for loss of water rights, as the undisputed testimony of the purchaser showed that no reduction in price was made by reason thereof.

8. That the verdict was excessive and also against the great weight of the evidence.

The motion for a new trial was denied. Defendants excepted, and have brought the case here, and the errors assigned are substantially those raised upon the motion for a new trial.

The meritorious question presented by appellants is whether certiorari was plaintiffs’ sole remedy. The learned circuit judge in denying the motion for a new trial, filed his reasons therefor, and they so fully cover the entire case that we here insert a part thereof with approval, as follows:

“In my judgment, if the facts involved in this case give the plaintiff a right of action against these defendants, thefi there is no merit in the contention that the verdict rendered is either excessive or contrary to the weight of testimony.
“The real meritorious question now before the court is whether under the facts as presented by the' pleading and the evidence this plaintiff has a right to bring an action for trespass against the defendant Williams, who was acting in his official capacity as drain commissioner, and against the other defendants who are the sureties on the drain commissioner’s bond. It is the contention of defendants that such an action cannot be maintained by the plaintiff, but that his sole and only remedy was to have instituted proceedings in this court by a writ of certiorari. The granting or denying of this motion depends upon, the determination of this question. * * *
“A release for the right of way for this drain was secured from all the parties concerned except the plaintiff, but as to him a release was not obtained, nor were the statutory steps taken to secure the right of way across his land. The portion of the drain adjacent to plaintiff’s land was dug in the month of June, 1915. During this time the plaintiff was sick in bed. This suit was commenced by summons and the plaintiffs’ declaration filed therein on the 9th day of March, 1916. The plaintiff seeks to recover damages which he claims resulted to him by reason of a trespass of the drain commissioner committed in the construction of this drain which resulted in the plaintiff being deprived of valuable water rights and his property being damaged by the unlawful placing of the bank of dirt upon the plaintiff’s land.
“The plaintiff claims that the first he knew of the proposed construction of this drain across his land was at the time of the letting of the drain on the Blst day of December, 1914. He claims that at that time and on subsequent occasions when approached in regard to the matter, the drain commissioner assured the plaintiff that the ditch would be dug in such a manner as to leave the water therein accessible on the plaintiff’s land. * * *
“The plaintiff, Jerome V. Laraway, denies that he át any time promised or stated to the drain commissioner that he would notify the drain commissioner as the construction of the drain approached plaintiff’s premises and that it should then be arranged to change the course of the drain in such a way as not to remove the water from plaintiff’s premises. At the trial of the case testimony was given which tended to support the claim made by those respective parties as above outlined. The case was submitted to the jury upon the theory that in the event of defendant’s contention being correct the plaintiff would have waived his right to recover in this suit; but on the other hand if the plaintiff’s contention was correct he would not have waived such right, nor would he be estopped from maintaining this suit.
“I have spent a great amount of time in examining the cases bearing upon this question, and I am still of the opinion that it was the duty of the court to submit this ease to the jury. In passing upon the contention of the defendants that certiorari is the exclusive remedy available to the plaintiff, we must bear in mind that this suit was not brought for the purpose of preventing the construction of the drain, nor for the purpose of avoiding the payment of the taxes assessed incident to such construction. But it is a suit brought in trespass and the facts alleged by the plaintiff amount in law to a fraud and deceit practiced upon him by the drain commissioner which enabled him to have this drain constructed in such a way as to deprive the plaintiff of his water rights in violation of the agreement which the plaintiff alleges the drain commissioner made with him. Recent decisions of our Supreme Court plainly indicate that it is not the law that certiorari is an exclusive remedy under all circumstances, or under such circumstances as surround this case.
“The case of Hoffman v. Shell, 151 Mich. 669, holds that the plaintiff was entitled to relief in an injunction bill filed for the purpose of securing a decree which would enjoin the collection of the drain tax. The plaintiff’s right to this relief was based upon the ground that he had not received the notice provided in the statute covering the construction of drains and that he had not waived such notice.
“In Hinkley v. Bishopp, 152 Mich. 256, it was held that certain parties plaintiff were entitled to relief in equity under a bill of complaint by which an injunction was sought to restrain the levy and collection of a drain tax. The court said:
“‘These complainants were entitled to this (statutory) notice, and without it have the right to question their respective assessments by proper proceedings.’
“As to those plaintiffs who had neither had notice nor waived notice of the drain proceedings, the Supreme Court held that the assessment of the tax was null and void.
“There are earlier cases to the same effect. Wright v. Drain Commissioner, 44 Mich. 557, holds:
“ ‘Where a notice of the proceeding to lay out a drain has not been given in strict compliance with the statute, subsequent proceedings are void as to those who did not waive notice or are otherwise estopped from objecting.’
“It should be observed, however, that this ease was brought before the court upon a writ of certiorari.
“Township of Merritt v. Harp, 141 Mich. 233, is another case brought before the courts by a bill of equity seeking to restrain the defendants from flooding lands and highways by the wrongful construction or enlargement of drains and asking damages. The Supreme Court said:
“‘Those drains were cleaned out or constructed in whole or in part under the supervision of the defendant Harp (who was the drain commissioner), and as to such drains, he is liable, under our decisions, to an action at law for any damage which may have resulted from his unlawful acts, and is subject to the control of a court of equity.’ Citing Bruggink v. Thomas, 125 Mich. 9.
“Thus it seems clear that certiorari is not an exclusive remedy, but that under proper conditions either suits in equity or actions at law may be maintained.
“It has long since been decided in this State that although one is acting in an official capacity, still by reason of his misconduct as a wrongdoer he may become personally responsible. In Hempfling v. Burr, 59 Mich. 294, it was held:
“ ‘There Is no known rule of law which will exempt a person from personal responsibility for fraud committed in his official character, and while the defrauded party may have more than one wrongdoer to look to for redress, the active wrongdoer is always responsible for his own frauds.’
“Upon principle it would seem that a public officer should be held personally liable for a trespass committed by him or one committed under his direction, even though he is acting in his official capacity.”

The questions of fact were, in our opinion, properly submitted to the jury. It cannot be said that the verdiet was either excessive or against the great weight of the evidence. A half score of witnesses, including the purchaser from plaintiffs, testified that plaintiffs’ damages, by reason of being deprived • of the water right, far exceeded the amount of recovery; and while there was testimony that plaintiffs sustained no damages, the verdict should not be disturbed upon either of the grounds urged.

We need to add but little to what the circuit judge has said. In Zabel v. Harshman, 68 Mich. 273, this court held that a drain commissioner, before, proceeding to construct a drain, must obtain a release of the right of way and of damages, or a condemnation of such right of way, and that the compensation therefor must be ascertained. See, also, Duryea v. Edinger, 169 Mich. 218, where we reviewed the authorities, and held that a land owner who was not made a party to the drain proceedings, and whose property rights were affected, might have relief other than by certiorari.

These plaintiffs were not made parties to the drain proceeding; their property rights have been seriously affected by the proceeding, and it is manifest that, unless the agreement claimed by defendants was made (which question was fully submitted to the jury), the plaintiffs had a right to bring and maintain this action.

Some of the minor questions raised we have not discussed, but they have all received attention, and we are of opinion that there is no reversible error in the record, and the judgment of the circuit court is therefore affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.