with an authorized capitalization of $4,000, which he increased by 1909 to $50,000, he and his wife owning all but three shares. Subsequently they, with some other parties who had become interested, applied for and obtained permission from the Michigan railroad commission to increase their capital stock to $100,000. In 1911, Clark and one Morris T. Streeter, who was a somewhat reckless if not unscrupulous promoter, conceived the idea of organizing and promoting the defendant company to acquire and combine the three systems mentioned. Clark, his wife, and Streeter accordingly organized the defendant Onaway-Alpena Telephone Co. in October, 1911, with a capitalization of $1,000,000, and became its directors at the first stockholders' meeting, Clark being elected president, and his wife secretary and treasurer. They obtained permission from the Michigan railroad commission to sell $180,000 worth of stock, the order providing that they were to pay from the proceeds $20,000 for the Calkins property, $62,250 for the Alpena company and exchange stock of the new corporation for stock of the Onaway Telephone Co. which had been issued and sold. They then entered upon a campaign of stock selling with Streeter as the active sales agent, blank certificates signed by Clark as president and his wife as secretary being liberally turned over to him in that shape for sale and disposed of by him in various ways and amounts to numerous purchasers in different parts of the State. It is indicated that more stock was disposed of by him than the company was authorized to issue. A witness named White, an experienced bookkeeper and accountant, who succeeded Clark's wife as secretary and treasurer, testified of that phase of the situation:

"Going back into these stock transactions, the condition of the stock certificates themselves, if they wanted to find out who had bought any of them and

transferred them, when there were no transfers on the stock certificates, a man could easily put in a year and at the end of that time he would know just about as much as when he started."

It was shown, however, that the company sold and realized on stock to the amount of $162,150, of which $50,000 worth went to Clark in purchase of or exchange for his stock in the Onaway Telephone Co.

Clark, Streeter, and White, who succeeded Clark's wife, constituted the board of directors until July, 1913, when certain of the outside stockholders in different parts of the State became solicitous about their investments and actively interested themselves in the affairs of the company, which at the annual meeting of stockholders in July, 1913, resulted in a change of directors and control of the business of the corporation. The case of Clark v. Onaway-Alpena Telephone Co., 196 Mich. 168, may be referred to for further introductory matter, showing conditions and dissensions leading up to the events under consideration here.

In October, 1913, the board of directors consisted of Charles S. Davis and John W. Allen of Adrian, Charles Ruthruff of Jackson, Charles R. Henry of Alpena, and John M. Clark, who for a time continued a member of the board and was retained in the company's employ as its secretary and manager of the physical and mechanical side of the company's affairs after that board acquired control. Davis was elected president and, in addition to his duties in that capacity under the by-laws, was given, by resolution of the board, personal management of the commercial and business side of the corporation "with oversight and authority over all employees," except as delegated by him to others.

A meeting of the directors held in Alpena, on October 21, 1913, was adjourned to October 25th at Jack

son, where it was attended by four of the five members. Previous to this meeting a project to raise money by bonding had been mooted and the employment of an expert accountant to examine the books and records of the company and ascertain its true financial condition had been discussed by some of the directors. Plaintiff had been recommended to director Allen as an experienced accountant and auditor, and Allen had wired him to come over from Lansing for an interview that day and meet him in Jackson at the union depot. In response he went over to Jackson in the morning and between trains had an interview with directors Allen, Ruthruff and Davis upon the subject of his employment for the purpose proposed. He was at that time engaged on other work which he informed them he must first finish, told them that if employed his terms would be $10 per day (whether with expenses added is a matter in dispute), that he could not give them any estimate how long it would take or the approximate cost of an audit and, in reply to their suggestion that he go up to Alpena to tentatively look things over, said he would do so if they would pay his expenses. At the directors' meeting a resolution was passed authorizing the president to take up with plaintiff "the matter of examining the books, papers and accounts of the company and ascertain if his work Iwill obviate the necessity of having the same work done again when steps are taken to bond the company," and the cost of the same. Davis wrote plaintiff making inquiry along the line of the resolution as did Allen also, to which plaintiff replied telling of his experience but otherwise without answer as to the cost or results, and on November 22, 1913, went to Alpena at Davis' suggestion, returning home before Thanksgiving, and back to Alpena on November 26, 1913, where he remained working in defendant's office most of the time until April 21, 1914. He

testified that he could not and did not tell them how long it would take to make the audit or give them any estimate of the cost. For his services during that period he rendered bills for 119 days at $10 per day and expenses amounting to $387.96, making his total charge $1,577.96, upon which he received payments at different times amounting to $960.38, leaving a claimed balance of $617.58, to recover which, with interest, this action was brought.

Defendant pleaded the general issue with notices of special defense, the substance of which was that his employment was never authorized by the board of directors and no definite or express contract of hiring was ever entered into; that plaintiff never made any report or statement respecting his supposed audit of the books or statement of an accounting to defendant, for which reason his services were of little or no value, and for all services rendered by any implied contract or consent he had been paid in full, and

more.

Upon the trial but two material issues developed, though many things were in dispute. Defendant's counsel conceded that upon the record made, and especially a resolution of the board of directors passed February 24, 1914, plaintiff was entitled to pay for his services at the rate of $10 for each day he worked between December 22, 1913, and March 19, 1914, which had been paid in full, but contended that, both by the tentative terms he had stated and said resolution, he was to pay his own board and other expenses, and that his employment was definitely terminated by said resolution on March 19, 1914.

This left as the only significant issues in the case plaintiff's right to reimbursement for expenses, and to pay for the days he claimed to have been in defendant's employ after March 19, 1914.

Beyond what was said in the interview at Jackson,

nothing definite is shown to have been directly said by either party in the nature of an agreement as to what compensation he should receive. Neither he nor Davis testify to any agreement on the subject during his preliminary visit to Alpena on November 22d, or on November 26th when he returned and began work. While they do not fully agree as to what passed between them on November 22d plaintiff's only statement in regard to cost or compensation is:

"He told me somewhat more in detail than I had learned in Jackson about the family quarrel, and after listening to it I told him I thought they had rather an unpleasant mess here, but as to the real thing that they wanted me to come for, after going down to the office and meeting Mr. White and looking at the accounts and his books, I told Mr. Davis that I was satisfied Mr. White understood his business as near as I could tell, and that I refused to set any estimate on what the whole job cost because I couldn't tell and the only way I would work was as I stated in Jackson on a per diem basis of $10 per day and expenses, that is when I was away from home. There was much more talk, but it seems to me that it was the substance of it."

While Davis testified:

*

"When Mr. Humphrey was here on the 22d of November, 1913, no arrangements were made other than that he was to ascertain what it was going to cost us. He did nothing to ascertain, so far as I saw, for he spent his time with me and could have spent but a short time looking over the books, * * I talked with him about ascertaining how long it would take. He said he wasn't ready to take hold of it just yet and had to go back. * *When Mr. Humphrey left on the 22d I didn't make any arrangement with him to come back."

There is a direct issue between plaintiff and the three directors as to plaintiff's adding expenses to his per diem statement of charge in the interview at Jackson. They testified he answered to their inquiry that