the proposed lease. The original memorandum could not be found, but a copy of it was introduced. After securing the contract and the memorandum, the plaintiff entered into negotiations with George C. Hart, a real estate broker, who had a client named Robert Williamson, who was looking for the building. It is the claim of the plaintiff that the terms of the lease were satisfactory to Williamson, and a conference was arranged between the parties and Williamson expressed himself as satisfied with the terms and conditions as submitted, and deposited with Mr. Holden, as good faith of his intention to carry out the lease, the sum of $500, and Mr. Holden was also informed when the papers were to be prepared-October 1, 1914— and the building turned over for occupancy. Williamson was immediately permitted to occupy the premises, and he started to make certain alterations and repairs, and remained in possession about three weeks, but it does not appear under what conditions or agreement Mr. Williamson went into possession and did this work. Attorneys representing both parties set about drafting the lease. Mr. Backus, one of the witnesses connected with drafting the lease, testified as to these negotiations regarding the lease with Mr. Duffield, representing Williamson, as follows:

"The lease was agreed upon between Mr. Duffield and myself as being satisfactory in form on October 8th. There were several changes made in the draft which we had before us at that time and we decided to retypewrite it and it was retyped in my office and handed back to Mr. Duffield on October 12th, which was Monday, and would have been handed to him sooner if it had not been for an intervening holiday."

The lease was never signed, and the reason for this action is given by Mr. Holden as follows:

"I remember when the last draft or whatever it was, he (Mr. Williamson) came in and said, 'I have a draft of the lease as the attorneys have agreed upon

and I want a few days to look it over,' and the next I knew I was summoned over at a conference in Mr. Duffield's office and he said he was not satisfied because he had not been able to close it by the 1st of October."

Upon the trial of the case, after the taking of testimony had proceeded a short time, the judge dismissed the jury, stating that he thought there was nothing but a question of law involved, saying:

"I will hear all of your proofs now, then later determine whether I will call any jury to aid in the determination of the question of fact."

It is urged that, by this action of the trial judge, the plaintiff was deprived of a trial by jury. We are not impressed that there is any merit to this claim. The right to the commission here claimed is required by law to be evidenced by writing. Act No. 238, Pub. Acts 1913, § 2, subd. 5 (3 Comp. Laws 1915, § 11981); Smith v. Starke, 196 Mich. 311. Plaintiff's right of action is based upon the offer of payment in the letter above set forth, and it must be governed by the terms of that letter. It is therein expressly stated that the commission was only to be paid "if a lease is made with Robert Williamson * * * at terms and conditions satisfactory to the Capitol Square Building Company.' We think it clearly appears that plaintiff has no standing in this case because a lease was never made, nor does it appear that Mr. Williamson was ready and willing to accept a lease on terms and conditions satisfactory to the Capitol Square Building Company. In the case before us the defendant was not the prospective lessor and cannot be said to have been in any way responsible for the conduct of such a prospective lessor. If the building company had absolutely and wrongfully refused to go any further with the transaction, under the terms of this offer, the defendant, James S. Holden Company, would not have been liable

for a commission. Neither could the defendant control the making or the not making of a lease, and therefore it was a very reasonable limitation to the right of recovering a commission that a lease was to be made before such a claim could accrue. Neither one of these two conditions having been met by the plaintiff, it follows that there was no liability on the part of the defendant, and the trial judge acted properly in directing a verdict for the defendant.

The judgment is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, FELLOWS, and STONE, JJ., concurred. KUHN, J., did not

sit.

WOODWARD v. HURON IMPLEMENT CO.

1. APPEAL AND ERROR-REVIEW.

In an action for fraud, commenced by writ of attachment, where the judgment of no cause of action is sustained by the appellate court, it will be unnecessary to review the action of the court below in dissolving the writ of attachment.

2. FRAUD-EVIDENCE-CLEAR WEIGHT OF EVIDENCE – FINDINGS OF COURT REVIEW.

In an action for fraud in the transfer of plaintiff's business, evidence examined, and held, that the findings of the court below were not against the clear weight of the evidence requiring a reversal of the judgment under section 12587, 3 Comp. Laws 1915.

Error to Huron; Beach, J. Submitted January 16, 1918. (Docket No. 94.) Decided March 27, 1918.

Assumpsit by Frank L. Woodward against the Huron Implement Company upon a contract alleged to have been obtained by fraud and deceit. Judgment for defendant. Plaintiff brings error. Affirmed.

A. F. Freeman, for appellant.

W. T. Bope, for appellee.

KUHN, J. Plaintiff has brought an action of assumpsit, based on alleged fraud on the part of defendant through its agents and directors, both in omitting, in connection with a certain offer submitted to plaintiff, to disclose material facts, and also in making certain promises or representations, whereby plaintiff was induced to enter into a contract arrangement with defendant, pursuant to which he transferred to it his foundry business, stock of materials, tools, etc., and received therefor $10,000 in common stock of defendant corporation and was made general manager of the combined enterprises, as a result of which fraudulent inducement, and the subsequent conduct of defendant and its agents, plaintiff has sustained the loss of the entire property invested. Plaintiff has claimed a rescission of the contract, resigned as general manager and director, tendered back his holding of stock, and seeks to recover the value of the property which he turned over to the corporation. The suit was commenced by writ of attachment, based on the ground that defendant "fraudulently contracted the debt, or incurred the obligation respecting which the suit is brought." The declaration consists of the common counts, with notice setting up the nature of plaintiff's claim.

Upon a trial on the merits before the court without a jury, the trial judge made the following findings of fact and conclusions of law:

"That in the fall of 1915, a company of Bad Axe

persons assumed to be a corporation owning a manufacturing plant and a business in the city of Bad Axe, the business of which was the manufacture and sale of a special cultivator under a patent; that the business had not flourished and was at a standstill.

"Mr. John Ryan, a stockholder, was informed by a mutual acquaintance of Mr. Woodward and his business at Clinton, Michigan. Mr. Woodward's business was the manufacture of plows and plow repairs, and for that purpose he owned a foundry and equipment. Correspondence and negotiations followed, which resulted in a reorganization of the Huron Implement Corporation with an additional capital stock, a transfer to the new corporation of Mr. Woodward's foundry, material, matters, etc., at a valuation of $10,000, Mr. Woodward receiving thereafter $10,000 in the common stock of the reorganization.

"A contract was entered into by which Mr. Woodward became manager at a salary of $125 per month for the first year and $100 the second year, with a provision for increase if the business paid a certain per cent profit.

"During these negotiations, Mr. Ryan and Mr. Pangborn visited and inspected Mr. Woodward's property at Clinton and Mr. Woodward was given a free hand at Bad Axe for investigation and to size up the prospects of making a success of the business and to investigate the assets of the business.

"Mr. Woodward assumed management of the business. A stock of completed implements and parts and unfinished implements was on hand, and Mr. Woodward devoted his attention to getting these on the market and finishing the uncompleted implements.

"In the negotiations and meetings of the stockholders of the new corporation, there seems to be no doubt that the addition of Mr. Woodward's plow business to the corporation was to be made effective by a suitable building to house it and carry on the work, and plans were formulated for the building and estimates of cost made.

"Mr. Woodward assumed management March 1, 1916. In April, three of the directors, Mr. Ryan, Mr. Fremont, and Mr. Pangborn, had a conversation with Mr. Woodward, in which they insisted that work on