128 Mass. 388. To the same effect are North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430; Spear v. Bach, 82 Wis. 192; Johnson v. Mulvy, 51 N. Y. 634. It must be admitted that at the common law shares of an incorporated company occupied much the same position as promissory notes and other mere choses in action. Indeed, it is held in Massachusetts that a promissory note is within the statute. Baldwin v. Williams, 3 Metc. (Mass.) 365. To the contrary is Vawter v. Griffin, 40 Ind. 593, which approves the rule of Humble v. Mitchell. Such shares have, however, come to be subjects of common barter and sale, are usually evidenced by certificates which, in the absence of statute provisions, operate by assignment and delivery to transfer title to the shares as between the parties. They are in this State by statute subject to levy and sale on execution. In many other respects they are treated as something more than mere choses in action. It was said by this court in Weston v. McDowell, 20 Mich. 353, 357, in considering the meaning to be given the words "goods, wares and merchandise," as employed in the common counts in assumpsit, that it has always been considered that the phrase as employed in the statute of frauds embraced animate as well as inanimate property, and that the word "goods" may well include oxen. The case is not in point here except as indicating that a broad rather than a narrow meaning should be given to the word "goods." That contracts for the sale and delivery of shares of stock are subject to the mischief aimed at by the statute, must be admitted. We are of opinion that reason and the weight of authority favor the conclusion that shares of stock in an incorporated company, the shares having been issued, are goods within the meaning of the statute of frauds. It follows that the parol contract for their sale was invalid.

3. The declaration alleged no facts to show whether the contract sued upon was or was not obnoxious to the statute. It was nevertheless a good pleading. Dayton v. Williams, 2 Doug. (Mich.) 31; Harris Photographic

Supply Co. v. Fisher, 81 Mich. 136; Stearns v. Railway Co., 112 Mich. 651; Kroll v. Diamond Match Co., 106 Mich. 127. See, also, 9 Enc. Pl. & Prac. p. 700; Seaman v. O'Hara, 29 Mich. 66, 67. The language of the statute in question here is:

"No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless," etc.

It is clear that such a contract may be valid and enforceable, although no note or memorandum in writing of the bargain be made and signed by the party to be charged therewith. The plaintiff in his declaration asserts the existence of a valid contract and upon the motion or objection of the defendant must prove such an one. The scope of the plea of the general issue is as a general rule a denial of every material averment of fact in the declaration. The precise question presented was answered adversely to plaintiff's contention in Third Nat. Bank of New York v. Steel, 129 Mich. 434 (64 L. R. A. 119).

It follows that the judgment must be, and it is, affirmed.

MONTGOMERY, HOOKER, MOORE, and MCALVAY, JJ., concurred.

A corporation cannot be held liable for the rent of a building claimed to have been rented by its agent, it not being shown that the agent had such general authority as would authorize him to make the contract, or that he was specially authorized.

2. USE AND OCCUPATION-LIABILITY-EVIDENCE-SUFFICIENCY. Liability for use and occupation does not arise from the fact that goods and fixtures belonging to defendant remained in plaintiff's building for a time, where it appears that they were there originally in possession of a third person as tenant, and there is no showing that defendant ever received possession from him.

Error to Gogebic; Shepherd, J., presiding. Submitted November 11, 1908. (Docket No. 161.) Decided November 30, 1908.

Assumpsit by Dominic Bonnazza against the Joseph Schlitz Brewing Company for rent. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed.

Herb. M. Norris and George O. Driscoll, for appellant.

George C. Foster and M. M. Riley, for appellee.

MOORE, J. In April, 1904, the plaintiff bought of Charles Leader a building in Ironwood, occupied in part as a saloon by one Marketti. Possession was to be given the plaintiff May 1, 1904. It is his claim that Mr. Fred Horn was the agent of defendant, and on the 30th of April, 1904, rented the saloon of plaintiff for defendant for one year from May 1st at a rental of $35 a month. It is also

his claim that, when he purchased the building, the saloon fixtures therein belonged to defendant, and that they remained in the building some months after the 1st of May, 1904. He sued to recover for 12 months' rent, and also claimed that, if he failed to show he was entitled to this rent, in any event, he was entitled to recover for use and occupancy during the time the fixtures were in the building. No testimony was introduced on the part of the defendant. At the close of the testimony for the plaintiff, the defendant asked the judge to direct a verdict in its favor. In response thereto the judge said:

"I fail to find in the evidence any fact that would tend to show that the defendant company had exercised actual ownership over this building in question. There is some testimony that they owned the property that remained there, but they do not seem to have disturbed its possession in any way for a long time, do not seem to have done anything actively towards taking possession of the property. The property remained, for all the testimony shows, in the legal possession of Marketti. There is no evidence to show that the possession of any of the personal property ever passed from Marketti to the defendant, and I think that would be the only ground upon which the plaintiff could go to the jury that the defendant had had the benefit of the use and occupation of the property. I think I will take the case from the jury and direct a verdict for the defendant. Gentlemen of the jury, the plaintiffs have rested their case, and it appears to the court that the evidence of any contract on the part of the defendant is deficient in the fact that there is nothing to show either that Mr. Horn had such general authority as would authorize him to enter into this alleged contract, or that he was specially authorized by the defendant company to enter into the contract. The evidence being deficient in that respect, I have concluded that there is nothing for the jury to decide. You will therefore say that you find no cause of action."

The case is brought here by writ of error.

We have read the briefs of counsel and every word of the testimony with great care. While the record does show that for some purposes Mr. Horn was the agent for

defendant company, we agree with the circuit judge that there is a failure to show that he was authorized to make the contract sued upon. See Grover & Baker Sewing Machine Co. v. Polhemus, 34 Mich. 247; Hirshfield v. Waldron, 54 Mich. 649; Bond v. Railroad Co., 62 Mich. 643; Ironwood Store Co. v. Harrison, 75 Mich. 197. It is proper to add, when plaintiff wrote defendant in July, claiming rent, that it at once denied having rented the saloon.

We also agree with the circuit judge that there is a failure to show such use and occupancy as would make defendant liable.

Judgment is affirmed.

MONTGOMERY, OSTRANDER, HOOKER, and MCALVAY, JJ., concurred.

DOWSE v. GAYNOR.

1. ACCOUNTING--PARTNERSHIP EQUITY-LACHES.

Where complainant bought a half interest in a mine in Mexico from defendant in 1887, under a partnership agreement contemplating the operation of the mine by defendant and the division of the profits with complainant, and wrote letters more or less frequently until 1901, at which time he ascertained defendant's whereabouts without difficulty, a bill for an accounting, filed subsequent to 1904, is barred by laches.

2. LIMITATION OF ACTIONS

ANCE OF PLAINTIFF.

RESIDENCE OF DEFENDANT - IGNOR

A foreign plaintiff is not relieved from the force of the statute of limitations by his ignorance of the defendant's residence in this State.