it; but the able chancellor did not think so, and, if we were willing to review his action, we have not the power, under the circumstances, to do it. The creditors are the only parties who would have a right to complain, and now that the stockholders inter sese have compromised that litigation, they, being able to take care of themselves, are not here making complaint, if indeed they could make it anywhere. It has constantly suggested itself to the court, since this question was first agitated in the case, that the last consideration was an end of this branch of the defence, and that the compromise between the stockholders, after Chancellor Morgan's opinion, closed all questions arising out of the controversy, and that the company's liability to pay its share of the attorney's fees could be no longer mooted; yet the court submitted the question to the jury as if that compromise had never been made, in deference to the very cogent reasoning of the defendant's counsel that Davis's whole conduct about this business was open to investigation in this suit for his salary. But the only proper question was that submitted to the jury; and inasmuch as it abundantly appeared from the proof that the minority had not confined themselves, in their litigation, to seeking a personal liability from the directors for maladministration, but had gone further and involved the company itself, by enjoining the management from issuing bonds to pay its debts, and for other purposes of corporate enterprise, and by applying for a receiver to oust that management entirely, there could be no doubt of the company's liability to pay the lawyers for preventing those things, useful though we may now think them to have been if we think with the then minority, or disastrous as they would have been if we think with the then majority. OF STOCKHOLD COMPANY IN LITI- THEY OF EM- It was their own fault thus to involve the company in the litigation, and the minority cannot complain at the payment of the fees. True, the company was a necessary party in any view, but would have been only nominally a party if the litigation had been confined to its personal features against the directors, and in that event, of course, Davis would not have been authorized to pay WHERE MINORITY counsel fees on its account. But it was not so con- ERS INVOLVE fined, and the jury decided correctly. A question has been made that the company already had counsel PLAIN in its regular employment; but that was also submitted COUNSEL. to the jury, whether, under the circumstances of the magnitude of the case and its character, it was reasonable to associate counsel with the regular attorneys. The jury approved it, and so does the court. Again, the whole body of directors were defendants, and must have known of this employment of additional counsel, and who were representing the company. A few weeks after the suit was brought, there were some changes in the directory, and two of the new directors testified they knew of the employment of PLOYMENT Humes & Poston-one that he advised it, and the other that he approved it. This was acquiescence and ratification; and now, the fact that there has been an entire change in the control of the company does not confer the right to revoke that corporate action by disapproval and refusal to pay the compensation of the counsel. The motion for a new trial must be overruled, and a judgment entered on the special verdict for the plaintiff. So ordered. Corporation. Compensation of Office. The plaintiff was elected secretary and treasurer of the defendant railroad company at a salary fixed by by-law at a certain rate per diem, but intended to be a continuous compensation for the entire period of service. The plaintiff sued the company for salary from November, 1878, when he was elected to the office, till August 10th, 1882, when his resignation, presented May 17th, 1882, according to its terms, took effect, deducting a certain sum which had come into his hands, as treasurer, and which he had applied in payment of his salary. The company in its answer admitted the election of plaintiff to the office, but denied that he continued in the company's service up to August, averring that he ceased to act on May 17th, 1882, the day he presented his resignation, and that on that day the books and papers in his custody passed into the hands of the president. The answer also claimed that the appropriation of the money credited in plaintiff's claim was an act of official misconduct. At the trial the plaintiff failed to offer evidence to prove that he had performed the duties of the two offices during any part of the period covered in the claim, and the judge, intimating that in absence of such proof he should direct a verdict for defendant, plaintiff suffered a non-suit. Held, that the ruling of the court below was erroneous. That the answer admitted that plaintiff had performed the duties of the two offices up to May 17th, 1882, and that therefore no proof of such performance during that time was necessary, and that hence the nonsuit was improper. And where a by-law of a corporation, relating to the duties and salaries of officers, provides, in case of the president, that his salary shall be "two dollars a day, while in actual service;' and, in the case of the secretary, that his salary shall be "two dollars a day," and that the treasurer, "while acting in the capacity of secretary and treasurer, shall receive no salary aside from the salary of secretary." Held, that the insertion of the special provision that the president's salary should only be allowed for the days while he was in actual service of the company, and the omission of such provision in case of the secretary, showed that the salary of the latter was continuous during the period of service, and that this implication was strengthened by the clause relating to salary of secretary and treasurer. Abbott v. Georgia & N. C. R. R. Co.,* 90 N. C. 462. See also upon this subject note to Duncomb v. Housatonic, etc., R. R. Co., 4 Am. & Eng. R. R. Cas. 307, and Little Rock & Ft. S. R. R. Co. v. Perry, 9 Am. & Eng. R. R. Cas. 610. Usurious Loan of Money by Director to his Company is Invalid.-A director of a corporation cannot contract with his co-directors that, in consideration of a sum of money advanced by him, he should receive the company's notes for a much larger amount, bearing an excessive rate of interest, although by oral contemporaneous agreement it was provided that of the excess beyond the amount loaned, the corporation should be required to pay only the sum which the lender might pay for taxes upon the property, with interest thereon. The corporation may satisfy such notes by paying the amount actually loaned, with interest thereon at the ordinary rates. Sutter Street R. R. Co. v. Baum,* California, October 28th, 1884. SEYMOUR v. DETROIT, HILLSDALE AND SOUTHWESTERN R. R. Co. (Advance Case, Michigan. April 29, 1885.) A received a letter as follows: "We desire you to take charge of the T. & A. A. R. R. and the D., H. & S. W. R. R., as general manager, it being duly understood that your salary is to commence on March 1 next, at the rate of $5000 per annum." This was signed by the Presidents of both companies. A accepted the offer and acted under it. In a suit to recover his salary brought against both companies jointly— Held that parol evidence was admissible to show an understanding both before and after the writing of the above letter that the contract was not joint, but imposed a several liability upon the railroad companies. ERROR to Wayne. Otto Kirchner for plaintiff. Henry M. Cheever for defendant and appellant. CAMPBELL, J.-This suit was brought against two railway companies jointly, but the Toledo & Ann Arbor Railroad Company was not served, and the Detroit, Hillsdale & Southwestern Railroad Company was proceeded against alone, but as a joint debtor, and recovery was had under the rulings below for salary as general manager of both roads down to March 1, 1882, for so much of two years' salary, at $5000 a year, as remained unpaid The controversy was chiefly on two points, viz., whether plaintiff was employed jointly or severally, and how long he served. The suit was brought on what is claimed to have been a verbal acceptance on a joint request in the following terms: "NEW YORK, February 4, 1880. "J. W. Smith, Esq., Detroit.-DEAR SIR: We desire you to take charge of the Toledo & Ann Arbor R. R., and the Detroit, Hillsdale & Southwestern R. R., as general manager, as soon as convenient; it being duly understood that your salary is to commence on the first of March next, at the rate of five thousand dollars per annum. [Signed] [Signed] "J. M. ASHLEY, "President T. and A. A. R. R. "JOHN B. ALLEY, "For Detroit, Hillsdale & Southwestern R. R. Co., Director and large Stockholder, and prospective President." It is claimed that on March 1, 1880, plaintiff went into the performance of his duties, spending some time on each road. The testimony on his part tends to show that during most of the period under consideration he gave his time exclusively to the Hillsdale road. It appears further, without dispute, that at or towards the close of September, 1881, the Hillsdale road was taken in charge and operated by the Michigan Southern Railroad Company, and that after that period plaintiff had no control of the road. It appears further that during the whole period from March, 1880, to October, 1881, he drew pay at the rate of $2500 a year from the Hillsdale road, on monthly bills presented by him against that road, separately, and that he was paid in full at that rate until the time when it changed hands. Also, that he rendered bills against the Toledo & Ann Arbor Railroad at the same rate, but was only paid a few months. It does not appear that he ever presented bills for this delinquent half of the $5000 a year claimed to the Hillsdale road while he was in active charge of that road. After his active charge terminated, and some time in the latter part of 1881, he appropriated some funds of the Hillsdale road put into his hands for specific purposes, and undertook to apply them upon the salary that he claimed should have been paid him by the Toledo & Ann Arbor road, on which he insisted both roads were liable. Thereupon suit was brought against him to recover the money back. In that case, which appears in 50 Mich. 112; s. c., 11 Am. & Eng. R. R. Cas. 655, it was held by this court that he had no right to apply such funds to his own use, and that, inasmuch as the claim he set up was on the basis of a joint liability, it could not be set off against a sole claim of one of his alleged debtors. Upon the trial of the present cause below, defendant undertook to rely on the defence that there never was any joint employment, but that in fact each road employed him on its own account, and that the business was done on that basis. It was also claimed that he did not perform his duties to both or either of the roads during the time claimed. As this is a suit on a joint obligation, there can be no recovery on any other basis. And there can be none on that, for any period when he was not employed as general manager of both roads. There is no claim for anything else set forth in the declaration. The court below excluded all testimony of any verbal agreement or understanding, in advance of the letter above set out, of a concurrent but not joint employment, on the ground that the terms of this letter were inconsistent with any but a joint employment. Defendant introduced, or offered to introduce, testimony to show a subsequent understanding and course of business; that the employment was continued for the Hillsdale Company as a separate one, at $2500 a year; but the court ruled that this could not be admitted to vary the written contract. Similar testimony was offered in regard to the separate character of the Toledo & Ann Arbor employment. The court charged that the contract was joint, and that there was no legal evidence that either company had been released from the joint obligation. He also left the case on the theory that the jury could find, as they did, that he was employed two full years. EXTRINSIC EVI DENCE TO SHOW THAT A WRITTEN CONTRACT WAS The case seems to us to have been tried on a misapprehension throughout. There is no doubt that, taken as it reads, and accepted as it reads, the offer and acceptance would be presumptively a joint contract. But without admitting or waiving preliminary testimony, there could be no legal presumption that the officers of two railroads, in no way shown to be connected in business or to have joint interests, could bind them jointly by any such obligation. In this point of view we can see no reason why those preliminary matters may not have been admissible to show how it came about that such an invitation was sent. Had these been private persons there might have been force in the objection; and if any authority had been shown here to act jointly, there might be the same difficulty. But, without such authority proved otherwise to contract jointly, we are not prepared to say that such testimony might not be important. The offer was to show a previous agreement between the railroad companies; and if such agreement was made, it might, and probably would, as defendant claimed it would, show the understanding on which their agents were to act, and be the measure of their authority to sign any proposition at all. SEVERAL This proposition declared on contains no statement how long this employment was to continue; and there is nothing in the case to show that either party could not terminate it. And if it was accepted and acted upon as joint, it was clearly open to defendant to inquire, not only how far services were rendered for both roads, but also how long such services continued. The suit, as already suggested, is for services actually rendered, and not merely those which plaintiff was ready to perform in his capacity as general manager. It is difficult to see on what basis any recovery could have been had beyond October, 1881, as after that time we have discovered nothing tending to show management of either road. It was, we think, erroneous to shut out testimony offered to show that the parties acted on the idea of several and not joint employment. If this as there was some evidence to prove-began at once, it would indicate that there never was any acceptance of the joint employment; and if acted on afterwards it would tend to show a termination or change of that employment, which, under this contract,-if it was a contract,-could be had at any time by joint agreement or acquiescence, inasmuch as there was no term fixed by the letter. And it is not unlawful for a joint contract to apportion pecuniary liabilities. Larkin v. Butterfield, 29 Mich. 254. There is no rule of law which prevents parties from modifying |