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107 444 s118 621

the right to sue for the fraud will be lost by accepting or retaining the goods (i. e., affirming the contract) has been discussed, and the right sustained. It is a common practice. See Allaire v. Whitney, 1 Hill, 484, 4 Denio, 554; Carroll v. Rice, Walk. Ch. 373.

This seems to cover all points discussed in the appellant's brief, although it is there said that reliance is placed on each assignment of error. We must, however, treat as abandoned such as do not fall within the discussion of the brief, if there are any such. Judgment affirmed.

The other Justices concurred.

KUZNIAK v. KOZMINSKI.

NUISANCE-WHAT CONSTITUTES.

A coal and wood house, erected so near the premises of another
as to darken his windows, does not constitute a nuisance,
although it be so located from malicious motives.
Moran, 81 Mich. 52, distinguished.

Flaherty v.

Appeal from Kent; Adsit, J. Submitted December 3, 1895. Decided December 17, 1895.

Bill by John Kuzniak against Jacob Kozminski and Frances Kozminski to abate an alleged nuisance. From a decree for complainant, defendants appeal. Reversed.

James E. McBride, for complainant.

Thompson & Temple, for defendants.

LONG, J. The parties to this cause own adjoining lots in the city of Grand Rapids. Defendants' lot is on the

southeasterly corner of Eleventh and Muskegon streets, and upon which is a large tenement house facing both streets. The complainant owns the lot immediately south and adjoining the defendants', and upon which he has a dwelling house facing Muskegon street, and also a tenement house about 60 feet back from Muskegon street, and within 22 inches of the north line, being the line of defendants' lot. At the time this tenement house was erected, defendants had upon their lot what was called a "chicken shed;" and, after complainant's tenement house was erected, defendants moved this chicken shed upon a part of their lot directly opposite complainant's tenement house, and within 24 inches of the lot line, and converted it into a coal and wood house for the use of their tenants, who occupied the dwelling on said lot. This bill was filed by complainant for the purpose of having this coal and wood house of defendants declared a nuisance, and to compel them to remove the same. The claim made by the bill is that the defendants removed the building to that place through spite and from a malicious motive, and not because it was needed for any useful purpose. Defendants answered the bill, denying that they were actuated by malice in putting the building there, and averred that it was so placed for the use of their tenants for wood and coal. The testimony was taken in open court, and the court found that the building was a nuisance, and a decree was entered directing the defendants to remove the building within 60 days from the date of the decree, and that, in default of such removal, the sheriff of the county remove the same, at the cost and expense of defendants. The complainant was awarded the costs of the suit. Defendants appeal.

It was held in Flaherty v. Moran, 81 Mich. 52, that a fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, was a nuisance, and the decree of the court below ordering its removal was affirmed; but that decision was

placed on the ground that the fence served no useful purpose, and was erected solely from a malicious motive. In the present case the building erected by the defendants was for a useful purpose; and, while there may have been some malice displayed in putting it so near the complainant's house as to shut off some of the light, that would not be a sufficient reason upon which to found a right in complainant to have the building removed. Defendants had a right to erect a building upon their own premises, and the decisions have been quite uniform to the effect that the motives of a party in doing a legal act cannot form the basis upon which to found a remedy. In Allen v. Kinyon, 41 Mich. 282, it was held that the motive is of no consequence when the party does not violate the rights of another. In Hawkins v. Sanders, 45 Mich. 491, it was held that there was no right of prospect which would prevent the erection of an awning on a neighboring lot. The case does not fall within the rule of Flaherty v. Moran, supra, and the court below was in error in directing the removal of the building. That decree must be reversed, and a decree entered here dismissing complainant's bill, with costs of both courts to the defendants.

The other Justices concurred.

447:38 LRA 804

AMERICAN MIRROR & GLASS-BEVELING CO. v. BULKLEY.

1. EQUITY PRACTICE-CASE HEARD ON BILL AND ANSWER.
An answer to a bill in equity is to be taken as true, where the
cause is heard on bill, demurrer, and answer.

2. SAME-CONSTRUCTION OF PLEADINGS.

A general allegation in a creditor's bill against the stockholders
of an insolvent corporation, that a large number of subscrip-
tions to the capital stock were not paid at all, while some were
paid in worthless patent rights and some in goods at ficti-
tious prices, is sufficiently met by an averment in the answer of
an individual stockholder that he has fully paid for the stock
subscribed by him.

3. CORPORATIONS-LEGALITY OF ORGANIZATION-ESTOPPEL.
Where an association has been recognized by the public authori-
ties as a duly-organized corporation, and has done business
and filed its annual reports as such, creditors who have dealt
with it and brought suit against it as such corporation cannot
attack its corporate existence, and hold its stockholders liable
as partners.

4. SAME-UNISSUED STOCK-LIABILITY OF STOCKHOLDERS.

A stockholder who has paid for his stock in full is not person-
ally liable to the creditors of the corporation for its unissued
stock, in the absence of a showing that he subscribed for or
purchased his stock in furtherance or with knowledge of a
fraudulent scheme to organize and carry on an illegal corpora-
tion.

Appeal from Kent; Adsit, J. Submitted December 3, 1895. Decided December 17, 1895.

Bill by the American Mirror & Glass-Beveling Company to establish the individual liability of the stockholders in the Michigan Cabinet Company for the payment of its debts. From a decree sustaining the demurrer of the defendant Abby A. Bulkley, complainant appeals. Affirmed.

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Wesselius & Corbitt, for complainant:

A corporation, in the absence of legislative permission, has no legal right to begin its business operations and incur debts until the entire capital stock fixed by its charter has been subscribed, and, in case of failure to observe this requirement, the corporators are individually liable to the creditors of the corporation to the amount of the unsubscribed stock. Beach, Priv. Corp. § 118; Mor. Corp. §§ 408, 823, 824; Thomp. Corp. § 2969; Haslett v. Wotherspoon, 1 Strob. Eq. 209; Burns v. Beck, 83 Ga. 471; Association v. Walker, 88 Mich. 62; Hawes v. Petroleum Co., 111 Mass. 200.

Complainant did not, by obtaining judgment against the corporation, waive its claim against the defendant stockholders. Cook, Stockh. §§ 219, 222; Beach, Priv. Corp. § 698; Mor. Corp. §§ 899, 900.

Champlin & Stone, for defendant Bulkley:

At the common law, there is no individual liability of members of a corporation for corporate debts beyond the enforcement of their agreed contributions to the capital stock. Beach, Priv. Corp. § 143; Terry v. Little, 101 U. S. 216; U. S. v. Knox, 102 U. S. 422; Manufacturing Co. v. Bank, 6 Rich. Eq. 227.

A failure to comply with all of the statutory requirements in the organization of a corporation does not render the corporators liable to creditors as copartners. Fay v. Noble, 7 Cush. 188; Bank v. Almy, 117 Mass. 476; Bank v. Walker, 66 N. Y. 424; Salt Co. v. Heidenheimer, 80 Tex. 344; Stokes v. Findlay, 4 McCrary, 205; Society Perun v. Cleveland, 43 Ohio St. 481.

A subscription of the whole amount of the capital stock is not a condition precedent to the legal existence of a corporation, unless it is made such in terms by the governing statute. Thomp. Corp. §§ 246, 2988; Cook, Stockh. § 243; Johnson v. Kessler, 76 Iowa, 411; Sweney v. Talcott, 85 Iowa, 103; Thornton v. Balcom, Id. 198; Childs v. Smith, 55 Barb. 45; Manufacturing Co. v. Moring. 15 Gray, 211; Turnpike Co. v. Valentine, 10 Pick. 142; Bank v. Investment Co., 74 Tex. 421; Massey v. Building Association, 22 Kan. 624.

Complainant, having dealt with the defendant company as a corporation, is estopped to deny its legal existence. Swartwout v. Railroad Co., 24 Mich. 394; Monroe v. Railroad Co., 28 Mich. 274; Bank v. Stone, 38 Mich. 779; Manufacturing Co. v. Stuart, 46 Mich. 482; Manufacturing Co. v. Run

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