is not denied that the offer of settlement was authorized. That Smith wrote the letter importuning defendant to accept the offer without the knowledge of plaintiff, or that plaintiff finally determined to contest the case on its merits, do not make a case for equitable relief. The fact that plaintiff was not familiar with our practice, although he had reputable attorneys employed who were, is not so extraordinary as to invoke equity jurisdiction. If settlements are to be set aside because laymen do not understand the intricacies of the judicature act or the practice in this court, few, if any, settlements between business men will be free from attack.

The decree of the court below will be affirmed, with costs to defendant.

BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.

FURSTMAN v. FRANK.

1. PARTNERSHIP-NAME-CERTIFICATE-FAILURE TO FILE-VALIDITY OF CONTRACT.

In a joint action to recover upon a contract entered into by plaintiffs in the firm name, if they were actually partners when the contract was entered into and during its performance, and had filed no certificate under either Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), or Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.), the contract was void and no recovery could be had.

2. SAME-ACTION-PARTIES-JOINT ACTION-INDIVIDUAL ACTION. If one of the plaintiffs was the sole proprietor and the other only an employee, as now claimed, the action should have been brought in his individual name, and no recovery can be had in this joint action.

Error to Wayne; Murphy, J.. Submitted June 11, 1919. (Docket No. 22.) Decided July 17, 1919.

Assumpsit by Samuel Furstman and another against Joseph Frank and another on a plumbing and heating contract. Judgment for defendants on a directed verdict. Plaintiffs bring error. Affirmed.

Beckenstein & Weinner, for appellants.

Edward N. Barnard, for appellees.

FELLOWS, J. Plaintiffs bring this joint action to recover upon a contract entered into by them in the firm name of Furstman & Applebaum with defendants in the firm name of Frank & Frank for certain plumbing and heating in a building being erected by defendants. They were met with the defense among others that they had not filed the certificate required by Act No. 101 of the Public Acts of 1907 (2 Comp. Laws 1915, § 6349 et seq.), or by Act No. 164 of the Public Acts of 1913 (2 Comp. Laws 1915, § 6354 et seq.). Conceding that they had filed no certificate under either act the plaintiffs advanced the claim that they were not partners in fact at the time the contract was made or during the time that such performance as was had under it took place; that plaintiff Furstman was the owner of the business and plaintiff Applebaum his employee. Testimony was taken on this subject and it conclusively appeared that Applebaum was held out as a partner; as to whether they were partners inter se the testimony was of such a character as to make this a question of fact. The

trial judge was of the opinion that Act No. 164 of the Public Acts of 1913 applied as well to ostensible partnerships as to partnerships inter se, that both were within the purpose of the act and directed a verdict for defendants.

I do not regard it necessary to determine the correctness of the reason given by the trial judge for directing a verdict as I am persuaded that plaintiffs cannot recover in this joint action. If they were actually partners when this contract was entered into and during its performance and had filed no certificate under either of the acts above cited they could not recover. The contract was in violation of a penal statute and void. This question was finally put at rest so far as this court is concerned in the case of Maurer v. Greening Nursery Co., 199 Mich. 522, 526. On the other hand if it is admissible in this case, brought by these two plaintiffs on this contract, executed by them as partners in a partnership name, to prove that one of the named partners (Applebaum) had no interest, was but an employee, and that the business and contract were owned solely by Furstman, then a case is established, if such testimony is believed, of a several liability to plaintiff Furstman and not a joint liability to plaintiffs. Manifestly if plaintiff Applebaum was but an employee of plaintiff Furstman he has no interest in a recovery in this case. If the plaintiff Furstman was the sole proprietor of the business and was conducting it under a firm name, and this is the most favorable theory for plaintiff that may be indulged in on the state of the record, he should have brought the action in his individual name. Bjorkquest v. Wagar, 83 Mich. 226. This case was decided before either of the acts in question was enacted. It was there said:

"There is but one other question. It seems that the plaintiff was doing business on his sole account, under the name of O. D. Bjorkquest & Son. This was stated

in the affidavit attached to the account in the declaration, and the account was sued in the name of Otto D. Bjorkquest, and so stated in the declaration. There was no attempt on the part of the plaintiff to prove a partnership by the affidavit attached to the declaration, as is now claimed by the defendant's counsel, but rather a claim was made that the plaintiff was the sole proprietor of the business of O. D. Bjorkquest & Son, and was doing business under that name, at the time the account was made with the defendant. Under such circumstances, the plaintiff had the right to sue in his individual name, and in fact he could sue in no other way."

Upon this record I am unable to perceive that plaintiffs have established a case for the jury or a right to recover in this action.

The judgment should be affirmed.

BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.

KRIEG v. KAUFMAN.

1. WATERS AND WATERCOURSES-FLOWING LANDS-EVIDENCE-SUFFICIENCY.

On a bill to restrain the erection of a dam and the flooding of plaintiff's land, evidence held, sufficient to sustain the finding of the court below that plaintiff's lands were flooded by the dam as originally built and maintained, but that an additional sluiceway ordered to be built will be ample to relieve plaintiff.

2. APPEAL AND ERROR-PROPRIETY OF PERMITTING PLAINTIFF TO ELECT DAMAGES IN GROSS-REVIEW.

Where defendants did not appeal from the decree of the On the question of correlative rights of upper and lower riparian owners, generally, see note in 41 L. R. A. 737.

court below, the propriety of permitting Maintiff to elect to accept his damages in gross is not open for consideration on appeal.

3. WATERS AND WATERCOURSES-DAMAGES-MODIFICATION OF DECREE.

Evidence held, sufficient to require modification of the decree of the court below allowing plaintiff $360 damages instead of $260; conditioned on acceptance within 30 days; if not accepted, decree requiring defendants to build additional sluiceway to be entered.

Appeal from Marquette; Flannigan, J. Submitted June 13, 1919. (Docket No. 25.) Decided July 17, 1919.

Bill by Frank E. Krieg against Samuel R. Kaufman and another to enjoin the flooding of plaintiff's land. From a decree granting insufficient relief, plaintiff appeals. Modified, and affirmed.

W. S. Hill, for plaintiff.

E. A. Macdonald, for defendants.

FELLOWS, J. Sauk's Head lake, a small inland lake, is located in Marquette county. It is about threequarters of a mile long and about half that distance wide. Its outlet is Garlic river, a stream about a quarter of a mile long flowing into Lake Superior. At the head of the lake plaintiff owns 36.2 acres of land. Defendants own considerable land surrounding the lake and own the land on both sides of the outlet. Some of the plaintiff's land is high; this is light soil and does not appear to be valuable for agricultural purposes. Nearer the lake is soil of a productive quality and is the most valuable of the entire piece. It is called by the plaintiff "meadow" land and by the defendants "swamp." Some part of plaintiff's land is a cedar swamp. Defendants are using and propose to use lands owned by them located on and near the