out, and at that time 15 shares to the defendant. All of the money paid by the stockholders at that time was $1,500 paid by the defendant. The Grefe property was conveyed to the corporation. Teachout and Branson paid for their stock $5,500 each, by turning over their interest in the Grefe property, and the Des Moines Ice Company obligated itself to pay the $9,000 deferred payment to Grefe. The defendant had an option to increase his subscription to place him on an equality with the other two corporate members, which he afterwards did by paying the further sum of $4,000 in cash. The defendant was induced to pay in $5,500 in cash in the belief that Teachout and Branson had each paid out that sum in the purchase of the Grefe property, when in truth and fact they had paid but $5,000 in the aggregate. It thus appears from the evidence that Teachout and Branson each obtained a one-third interest in the corporation by the payment of $2,500, and the defendant paid for his one-third interest the sum of $5,500. That he was induced to do so by the representation made by Teachout that the Grefe property cost $20,000 is not only sustained by the evidence, but as the plaintiff introduced no evidence it is uncontradicted. It further appears from the evidence that before this suit was commenced the defendant had sold his stock, and he is not now a stockholder in the corporation, and that the corporation paid dividends and was prosperous in its business during defendant's connection with it, and for aught that appears it is still successfully prosecuting its business. The motion to direct a verdict for the plaintiff was in writing, and was in these words: "First. That the evidence in behalf of defendant fails to show that there were any material false representations made by plaintiff to him as set forth in his counter-claim, but does show that plaintiff agreed with him that Branson & Co. would turn in to the Des Moines Ice Company the property purchased from Grefe at $20,000, and that the same was done in accordance with said agreement. Second. That the evidence shows that if any cause of action exists in favor of any one against the plaintiff, that the same exists in favor of the Des Moines Ice Company, a corporation, and that the defendant, as a stockholder, does not show any right to maintain said action. Third. That the evidence shows that the defendant has parted with his interest in the Des Moines Ice Company; that any cause of action that exists upon the facts shown is in favor of the Des Moines Ice Company; and that the defendant has no interest therein, and can maintain no suit therefor."

The first ground of the motion is to the effect that the evidence does not show that there were any material false representations made by the plaintiff; that the defendant was deceived to his injury; and that Teachout profited by the deception is apparent from the above statement of facts. It is wholly immaterial whether the stock paid dividends or not, or what amount the defendant received from the sale of his stock. The fact remains that, by the false representations of Teachout, he and Branson each acquired an interest in the venture equal to the interest of the defendant by the payment by each of less than half the amount paid by defendant. The defendant embarked in the business in the belief that Teachout and Branson had paid dollar for dollar with him, and this belief was generated in his mind by the false representations of Teachout. It is true, as claimed by plaintiff's counsel, that the defendant agreed with plaintiff that the Grefe property and business should be turned into the Des Moines Ice Company at $20,000, and that the same was done in accordance with the agreement. But this is no answer to the complaint that the plaintiff represented that $20,000 was the cost of the property, when the real purchase price was but $14,000.

Counsel for appellee insist that the representation as to the cost of the property was not an actionable false representation, because it was a mere affirmation of a seller on which a purchaser is not authorized to rely. In other words, it is claimed that the representation is akin to the representations of the value of property which a purchaser must ascertain for himself. The fa

miliar cases of Medbury v. Watson, 6 Metc. 250, Hemmer v. Cooper, 8 Allen, 334, and other cases, are cited in support of the rule contended for by counsel. But it is apparent that the cited cases have no application to the facts in this case. It may be conceded that where parties meet on equal terms, as is said in the case of Medbury v. Watson, the "vendor of real estate affirms to the vendee that his estate is worth so much, that he gave so much for it, that he has been offered so much for it, or that he has refused such a sum for it, though known by him to be false, and though uttered with a view to deceive, are not actionable." These representations are regarded in the same light as representations of value, which are mere opinions. On the other hand, it was held in Sandford v. Handy, 23 Wend. 260, and Pendergast v. Reed, 29 Md. 398, that a false affirmation by a vendor as to the actual cost of property may amount to an actionable false representation. The evidence shows that the defendant had no knowledge of the ice business. He relied upon the plaintiff as a confidential adviser. He was enjoined by plaintiff to secrecy in reference to the enterprise. The turning over the property to the corporation was not a sale to the defendant. The parties were jointly entering into a business enterprise, trusting in the honesty of each other, and they had the right to rely upon and expect the utmost good faith from each other. The representation of the actual cost of the Grefe plant was the representation of a fact, and not a mere opinion as to the value of the property.

2. The second ground of the motion to instruct the jury to return a verdict for the plaintiff is to the effect that if a cause of action exists in favor of any one it is in behalf of the Des Moines Ice Company, and cannot be maintained by the defendant. In other words, it is claimed that as Teachout sold the property to the corporation, there was no privity between him and the defendant, and as Teachout's obligation was to convey to the corporation, he was bound to convey at the cost price, and an action would lie by the corporation for the benefit of all the stockholders. We do not think this position is sound. It is to be remembered that the fraud complained of had its inception before the corporation was organized. It was a personal transaction between individuals. In making the representations complained of the plaintiff was not acting as the agent of the corporation, but for the promotion of his own interest, and it seems that the reparation for the wrong done should be made by the wrong-doer to the person upon whom the injury was inflicted. The liability of the person who makes false representations to a purchaser of stock in a corporation is fully sustained by the following authorities: Kerr, Fraud & M. 339, 341; Cook, Stocks, §§ 354, 355, 357; Miller v. Barber, 66 N. Y. 558; Schwenck v. Naylor, 102 N. Y. 683, 7 N. E. Rep. 788; Short v. Stevenson, 63 Pa. St. 95; Paddock v. Fletcher, 42 Vt. 389; Vreeland v. Stone Co., 29 N. J. Eq. 188. The proposition that an action can only be maintained by the corporation finds a sufficient answer in the facts of this case. If a fraud was in fact perpetrated as claimed by the defendant, the profits resulting therefrom were shared by Teachout and Branson, who were the owners of two-thirds of the capital stock of the corporation. The proposition that the defendant's wrongs are to be righted by an action by the corporation against the two-stockholders who shared in the proceeds of the fraud would in effect be an invitation for the corporation to bring an action against itself. The promoters and organizers of corporations should be held to a strict accountability for their acts. They ought not to be permitted to use a corporation as a shield to protect them from personal liability for their fraudulent acts, and should be required to respond to the party injured by their frauds. As is well said in the case last above cited: "When fraud is committed in the name and under cover of a corporation by persons having the right to speak for it for their personal gain and benefit, they are bound to answer personally for their wrongful acts. Their tongues uttered the false words, and their purses should pay the damages." We do not question the rule contended for by

counsel for appellee that where the fraud consists in inducing shareholders in a corporation to enter into a contract in their collective capacity, it is an injury to the corporate interests, and the corporation is the proper party to maintain an action for a reparation of the wrong. But that rule can have no application to the case at bar. The counter-claim in this case is founded upon a personal contract prior to the organization of the corporation. The false representation was not made to any officer or agent of the corporation. It was made to the defendant to induce him to become a stockholder in a corporation to be thereafter organized. The plaintiff cannot be permitted to hide behind a corporation. He should come into open daylight, and meet the party injured by his fraud face to face. It will be remembered that we are discussing these questions upon the evidence introduced by the defendant. We do not know whether it is true or not, but for the purposes of this appeal it must be accepted as the truth.

3. The third ground of the motion is that the defendant cannot maintain his counter-claim because he has sold his stock and parted with all interest in the corporation. This is no defense to the recovery of damages for the alleged fraud. The sale of the stock did not operate as an assignment of his interest in the corporation, and that interest would have been considerably more valuable and presumably would have sold for more if Teachout and Branson had each paid $5,500 for their stock, as they were bound in good faith to do to put them on an equality with the defendant. We think the court should have overruled the motion for a verdict, and required the plain-tiff to proceed with the presentation of his side of the case. Reversed.

STATE v. CAMPBELL.

(Supreme Court of Iowa. October 30, 1888.)

1. INTOXICATING LIQUORS-TRANSPORTATION WITHOUT PERMIT.

Under Code Iowa, § 1553, providing that any express company, railway company, or any person in the employ of any express company, or any common carrier, or any person in the employ of any common carrier, or any other person, conveying intoxicating liquors without the certificate of the county auditor, shall be punished, etc., the driver of a team for one who undertakes with his own wagons to deliver the liquors is punishable; the driver being within a class of like kind with those enumerated to which the words "any other person" refer.

2. SAME.

The carrying of liquors from wholesale dealers to retail dealers in the same city, is a conveying within the meaning of such statute, imposing the penalty for conveying the liquors "from one place to another within the state.

Appeal from district court, Polk county; JOSIAH GIVEN, Judge.

The defendant, Albert Campbell, was tried before a justice of the peace on a charge of transporting intoxicating liquors without having a certificate from the auditor of the county authorizing him to engage in that business. He was found guilty, and upon an appeal to the district court he was again adjudged to be guilty. He appeals.

Cole, McVey & Clark, for appellant. A. J. Baker, Atty. Gen., for appellee.

ROTHROCK, J., (after stating the facts as above.) A jury was waived in the district court, and with the consent of the parties the court made findings of facts. As counsel for the respective parties are at variance as to the proper construction to be given to the findings, it appears to be necessary to set them out in full. They are as follows: "Between the 15th and 25th days of February, 1887, Hurlbut, Hess & Co. were a corporation under the laws of Iowa, and merchants doing business in the city of Des Moines as wholesale dealers in drugs, selling largely to druggists and others in the city. That C. H. Ward was a member of said corporation, and a registered pharmacist and

authorized dealer in intoxicating liquors in the city, and selling largely to registered pharmacists and others in the city. That said parties, for convenience, employed one Joseph Row to do their hauling under an agreement that he should not haul merchandise for any other firm or dealers; and for such service they paid him an average of about $25 a week, he using in that business two wagons, a two-horse wagon and a one-horse wagon. (2) That said Joseph Row employed the defendant, Albert Campbell, at $7 per week, to drive a team for him, and to attend to the delivering of goods for said Hurlbut, Hess & Co. and C. H. Ward. (3) That said parties, in selling goods and intoxicating liquors to merchants and others in the city, agreed to deliver the goods and intoxicating liquors sold to the purchasers; and that to deliver goods and intoxicating liquors so sold was part of the duty and employment of the said Joseph Row, and of the defendant, Albert Campbell. That between the dates named-February 15 and February 25, 1887-Albert Campbell did deliver to registered pharmacists in the city, who had permits to sell, intoxicating liquors purchased by them from C. H. Ward, knowing that the liquors being delivered were intoxicating liquors, and did so without having any certificate from the county auditor, as provided for in section 1553, as amended in the Acts of the Twenty-First General Assembly, and without the said C. H. Ward having such certificate for transportation." Section 1553 of the Code, referred to in the findings of fact, is as follows: "If any express company, railway company, or any agent or person in the employ of any express company, or if any common carrier, or any person in the employ of any common carrier, or if any other person, knowingly bring within this state for any other person or persons or corporation, or shall knowingly transport or convey between points, or from one place to another, within this state, for any other person or persons or corporation, any intoxicating liquors, without first having been furnished with a certificate from and under the seal of the county auditor of the county to which said liquor is to be transported or is consigned for transportation, or within which it is to be conveyed from place to place, certifying that the consignee or person to whom said liquor is to be transported, conveyed, or delivered is authorized to sell such intoxicating liquors in such county, such company, corporation, or person so offending, and each of them, and any agent of such company, corporation, or person so offending, shall, upon conviction thereof, be fined in the sum of one hundred dollars for each offense, and pay costs of prosecution; and the cost shall include a reasonable attorney fee, to be assessed by the court, which shall be paid into the county fund, and stand committed to the county jail until such fine and costs of prosecution are paid. The offense herein defined shall be held to be complete and shall be held to have been committed in any county of the state through or to which said intoxicating liquors are transported, or in which the same is unloaded for transportation, or in which said liquors are conveyed from place to place or delivered. It shall be the duty of the several county auditors of this state to issue the certificate herein contemplated to any person having such permit, and the certificate so issued shall be truly dated when issued, and shall specify the date at which the permit expires, as shown by the county records." Counsel for appellant contends that the defendant is not guilty of the offense charged, because he does not belong to one of the classes of persons designated and named in the statute. The statute provides that "if any express company, railway company, or any agent or person in the employ of any express company, or any common carrier, or any person in the employ of any common carrier, or if any other person, knowingly bring within this state." etc., he shall be liable. It is claimed that the words "or any other person" do not enlarge the classes which precede, but that the words "any other person" mean simply other persons of like kind, or in like employment, with those specified. The argument is that, if all persons were intended, there would have been no necessity for making special mention of the classes, and the act

would simply have prohibited any person from doing the act, without further designation. In other words, it is claimed that the words "any other person' are limited to other like persons. There can be no question that the rule of construction as claimed by counsel is correct. See State v. Stoller, 38 Iowa, 321, and authorities there cited.

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But the question remains to be determined whether the defendant belongs to the class of persons made liable by the statute; and this is to be ascertained from the findings of fact. It appears therefrom that Hurlburt, Hess & Co. is a corporation doing business under the name, and dealing in drugs. Ward was a member or stockholder in the corporation, and was a registered pharmacist, and authorized dealer in intoxicating liquors, and sold largely to registered pharmacists in the city It would seem from these facts that Ward carried on the business of selling intoxicating liquors lawfully, and separate from the general drug business carried on by the corporation. Both were wholesale dealers, and sales were made to retail druggists and pharmacists. The purchasers did not take the goods from the store-rooms, but Ward and the corporation were bound by their contracts of sale to deliver the goods purchased to the purchasers. They employed Row, not as a mere servant to drive a delivery team of their own, but as the owner of two wagons, to transport the goods sold to the purchasers. The defendant, Campbell, was an employe of Row, and the driver of one of his teams used in transporting or delivering the goods sold by Ward and the corporation. Row was therefore engaged in the business of moving, transporting, or delivering the goods for hire, just the same as a transfer company, with the exception that he could not be said to be a common carrier, because he was not a public carrier, his employment with Ward and the corporation being exclusive. We think he and his employe, Campbell, may fairly be held to belong to the classes enumerated in the statute, or, rather, to belong to a like class. We do not regard the fact that the liquors were not carried or conveyed outside of the city of Des Moines as of controlling importance in the case. Ward was a wholesale dealer, and the conveying of the liquors to the retail dealers was a conveyance from "one place to another within the state," the same as if the acts with which he was charged had been the transfer from one town to another. The statute is not to be construed with reference to the boundaries of cities, towns, townships, or counties. We do not think that the defendant should be considered as the mere servant of Ward, or his mere delivery-man. He was, it is true, in a certain sense, the delivery-man for Ward, but he was more than that; he was the employe of Row, who was a carrier for hire, and carried the goods from the seller to the purchaser. We think the judgment of the district court should be affirmed.

BYRAM v. POLK COUNTY.

(Supreme Court of Iowa. October 27, 1888.)

1. COSTS-IN CRIMINAL CASES-INTOXICATING LIQUORS-SEARCH AND SEIZURE.

Under Code Iowa, § 1546, providing that when intoxicating liquor is taken on a search-warrant, and no person is made defendant, or judgment is in favor of defendant, the costs shall be paid as in cases of criminal prosecutions where the prosecution fails; and section 3807, providing for a fee for the officer who serves the writ, the writ is served by making the search, and the officer is entitled to his fee, as provided in the former section, though no intoxicating liquor is found. 2. SAME-APPEAL-WAIVER.

Acceptance by an officer of a specific item of his account for fees awarded him by the district court is not a waiver of his right of appeal as to the others.

Appeal from district court, Polk county; W. F. CONRAD, Judge. Adam Byram is a constable, and he brought this action against Polk county to recover fees for serving certain warrants of search and seizure issued by justices of the peace, under the statute for the suppression of intemperance.