ERWIN V. LAPHAM.

The defendant showed that he had received the money collected of plaintiff, as treasurer of the Holly, Wayne & Monroe company, and had paid it over to the Flint & Pere Marquette company. The judgment below was in his favor, and the plaintiff brought error.

Wilkinson & Post and Ashley Pond, for plaintiff in error.

C. I. Walker, for defendant in error.

CAMPBELL, J.

We think that when plaintiff paid over his subscription to defendant, and defendant paid it to the company for whose benefit and to whom it was expressly designed to be paid by the subscription, it was a good payment, and would exonerate him from any liability to the nominal payees in the subscription paper. They were to be mere stakeholders, and could not complain that the money did not pass through their hands, since it went where they were bound to pay it.

The judgment below was correct and should be affirmed, with costs.

The other Justices concurred.

Jacob Beller v. Charles Stange and others.

Builder: Contract: Possession. A builder cannot retain possession as against the owner of a building he is constructing under contract with such owner, to enforce payment of the contract price, after the time for performance has expired and he has ceased work, claiming that the building is completed according to the terms of the contract.

Heard and decided April 16.

Error to Wayne Circuit.

BELLER v. STANGE.

This is an action of trespass brought by Beller against defendants in error, to recover damages for being forcibly kept out of possession of certain premises belonging to him. Defendants in error had contracted with him to construct a building upon said premises, and had ceased work, claiming that the building was completed. The time limited for performance under the contract had expired some five months before. The last payment provided for by the contract had not been made, and the plaintiff refused to pay it, claiming damages for the delay in performance, and that the building was not finished in accordance with the terms of the contract. The defendants, insisting that the delay was caused by plaintiff, and that he was not entitled to the damages claimed therefor, and that the building was completed and said payment due, set up and maintained exclusive possession of the building, and forcibly prevented the plaintiff from entering the same, on the ground that they were entitled so to do under the contract, until such payment was made. The court below charged that the plaintiff was not entitled to recover, and judgment was rendered for defendants. Plaintiff brought error.

Moore & Griffin, for plaintiff in error.

Lyman Cochrane, for defendants in error.

CHRISTIANCY, CH. J.

We see no ground upon which the ruling of the court below can be sustained. The defendants in error had no right of possession as against the plaintiff, under the circumstances disclosed in the record. If any thing remained due upon the contract, the defendants, if they had performed the contract, or were prevented by the plaintiff from performance, had a clear remedy by action upon their contract, or by proceedings under the statute to enforce their

27 MICH.-40.

BELLER V. STANGE.

lien. But we are aware of no law by which they were authorized to hold possession of the property as a means of enforcing their rights.

The judgment must be reversed, with costs, and a new trial awarded.

The other Justices concurred.

JULY TERM, 1873, AT LANSING.

Frederick W. Carlisle v. The Saginaw Valley & St.. Louis Railroad Company.

Railroads: Corporations: Subscription to stock: Statute construed: By-laws; Estoppel. Under the railroad law of 1871 (Comp. L. 1871, § 2405) subscriptions to capital stock of a railroad corporation could only be made "in the manner to be provided by its by-laws." A subscription made before any by-laws were adopted gave no rights to either party; and where there had been nothing done to create an estoppel, the subscriber was held not bound by a by-law made afterwards and adopting his subscription.

Error to Saginaw Circuit.

Heard April 10. Decided July 11.

Wisner & Draper, for plaintiff in error.

Gaylord & Hanchett, for defendant in error.

CAMPBELL, J.

Carlisle, the plaintiff in error, is sued as a stockholder for assessments on stock, and defends on two grounds: first, that he never became a stockholder; and, second, that by an arrangement with another company, the defendant in error made stipulations depriving itself of the power of putting its terminus in East Saginaw, where it was to have been placed by its articles, and so destroying the chief consideration for the subscriptions made in that city.

The agreement in question was made with the Jackson, Lansing & Saginaw railroad, for the use of the track of the latter company from the Tittabawassee river to the East Saginaw depot (which was in Saginaw, and opposite the

CARLISLE V. SAGINAW VALLEY & ST. LOUIS RAILROAD Co.

city of East Saginaw), and for the use of the depots in that section. And the clause complained of is a stipulation not to construct or maintain any other track into the city of Saginaw during ten years. It is claimed this precludes the defendant from crossing the river so as to connect with the city of East Saginaw. But by a previous clause in the contract it had been stipulated that defendant might put in the necessary switches and turn the track of the other road "at any point between Farley street and East Saginaw station, for the purpose of crossing Saginaw river." The track to which defendant was to be confined included this proposed crossing as plainly as any other part of the track. The objection therefore is groundless, and we need not consider whether it would have had any effect had it been well founded.

But it is claimed that Carlisle never became a stockholder, because his subscription was not made in the manner authorized by the statute. As the case is presented, there are none of the questions raised which sometimes create estoppels by mutual dealings; and the point to be settled is simply whether his subscription was in such manner as to create the relation of share-holder.

The company was organized after the passage of the law of 1871, which changes the former method of obtaining subscriptions. By the old law, all stock not subscribed in the original articles, must be subscribed by signing the books opened by commissioners, kept in such places, and opened after such notice, as a majority of them should direct, and kept open until all the stock was subscribed. In case more than the whole amount was subscribed they were to equalize the shares.

The law of 1871, instead of continuing this mode of subscription, declares that "the persons who have subscribed such articles, and all other persons who shall, from time to time thereafter, subscribe to or become the holders of the capital stock of said corporation, in the manner to be provided by its by-laws, shall be a body corporate," etc.