Franey vs. Warner and others. the realty, as between the parties to the action. The principle is well settled that parties may treat as personal property machinery which would otherwise be part of the realty, and thus convert it into personal property as between themselves. Smith v. Waggoner, 50 Wis. 155; Fitzgerald v. Anderson, 81 Wis. 342. It seems very clear that this is just what has been done here. By the agreement of division of property, and the lease executed by Keefe and Sammond and Stephens in July, 1890, all of the machinery in question was treated as personalty, and in fact conveyed as such to Sammond and Stephens. The defendant here traces title to such property directly from Sammond and Stephens. He was rightfully in possession when this action was commenced, and had a perfect right to sell and remove the articles in question. By the Court.-Judgment affirmed. FRANEY, Respondent, vs. WARNER and others, imp., Appellants. Corporations: Stock subscriptions: False representations of promoters: Rescission: Restoring consideration: Accounting for profits: Equity: Practice. 1. A written instrument by which the signers "subscribe to the amount set opposite of our [their] respective names in a corporation to be formed" for the purchase of certain land at a specified price, is not a contract between the signers to join in buying the land, but is a mere proposal to take stock, not binding on anybody until accepted by the corporation. When so accepted the subscribers become liable to the corporation to pay for stock to the amount set opposite their names respectively, and the contract cannot there. after be rescinded for any fraud for which the corporation was not liable. Franey vs. Warner and others. 2. In an action by one of such subscribers against the corporation to which the land had been conveyed and certain other stockholders who had been its promoters, to rescind the contract and recover the amount paid on the stock on the ground that plaintiff's subscription had been obtained by false representations as to the ownership of the land and the purchase price to be paid, a determination by the trial court acquitting the corporation of all wrong and dismissing the action as to it, left the contract of subscription in full force. A judgment, therefore, which in effect rescinded the contract as to the promoters and awarded a recovery from them of the entire amount paid thereon, was erroneous both because the money had been paid to the corporation on the contract of subscription made with it, and because the plaintiff could not restore the defendants to their former position. 3. An assignment to defendants of plaintiff's stock which they had never owned would not so restore them to their former position as to warrant a rescission. 4. If a person in good faith brings an action in equity alleging facts sufficient to constitute a good cause of action within some recognized principle of equity jurisprudence, but fails to establish some fact essential thereto, yet does establish a state of facts entitling him to some relief by way of damages or otherwise, the court will not dismiss the bill and thereby render further litigation necessary, but will retain it and render such judgment as will do complete justice between the parties. 5. Where a person has been induced to subscribe for stock in a corporation to be formed to purchase a certain tract of land by false representations of the promoters that the land was to be purchased of a third person at a certain price, when such promoters had already actually purchased the land at a much less price, he may maintain an action in equity against the promoters for an accounting and a recovery of his proportionate share of the profits retained by them. APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed. Action to rescind a transaction whereby plaintiff was induced by fraudulent representations made by defendants Warner, Warner, and Wambold to join with them in the formation of a corporation to purchase certain land for $45,000, said defendants pretending that said land was to be bought of an outside party, who was the owner, and that all who Franey vs. Warner and others. united in the scheme would share in proportion to their respective subscriptions in the actual cost of the land and the profits of the enterprise, when in fact such defendants had obtained the right to purchase the property for $32,727, and secretly purposed making the difference between that and the selling price to the corporation of $45,000. The complaint contained allegations to the effect of the foregoing, and that the scheme was consummated by the formation of the corporation, said defendants procuring the transfer of the land to it by an outside party, one Siegert, ostensibly at the purchase price of $45,000, but at an actual cost to said defendants of $32,727, they dividing the difference between themselves as profits, without the knowledge of plaintiff and others similarly situated. The action was commenced against the promoters, Warner, Warner, and Wambold, and the corporation as well, and proper allegations made in the complaint to charge the latter as a party to the fraud. The relief prayed for was a rescission of the whole transaction, and a judgment against the defendants for the money paid by plaintiff upon the subscription to the stock of the corporation. The defendants demurred generally to the complaint. The demurrer was stricken out as frivolous, and defendants excepted. Thereafter answers were put in, and the issues thus formed tried and determined by findings and conclusions of law in substance as follows: (1) That January 1, 1892, defendants Warner, Warner, and Wambold formed a fraudulent combination to cheat plaintiff and others by selling to a corporation, of which said defendants were promoters, certain lands for $15,000, which they had secretly obtained the right to purchase for $32,727; and that in furtherance of their fraudulent scheme they represented to plaintiff and others, who, with him, were induced to unite in the enterprise, that the cost price of the land was $15,000, when in fact it was $32,727. Franey vs. Warner and others. (2) That plaintiff, relying upon such representations, and not otherwise, by a $3,000 subscription united with such defendants and others, who in the aggregate made up the entire subscription of $45,000 called for, the subscribers agreeing to take interests in the enterprise of purchasing the land corresponding to their respective subscriptions, such interests to be evidenced by stock in the proposed corporation; and that plaintiff became, by signing the agreement, an actual subscriber to the stock of the corporation to the extent of $3,000. (3) That after the corporation was organized certificates of stock to the whole amount were issued, and payment made therefor by plaintiff and those similarly situated, as required by the plan of organization, plaintiff paying on his $3,000 of stock, $1,120; that $7,200 of full-paid stock was issued to the said defendants Warner, Warner, and Wambold without any consideration being paid therefor. (4) That after the corporation was organized the said promoters, pretending that Siegert owned the land, caused themselves to be appointed by the corporation, at a meeting of stockholders, a committee to purchase the same from said Siegert for $45,000, upon the pretense on the part of said defendants, relied upon by plaintiff and others similarly situated, that he owned the land, and that such was his price; that in furtherance of the scheme said defendants caused Siegert to convey the land to the corporation by a deed expressing as the consideration one dollar and other valuable considerations, and represented that the true consideration was $15,000, part cash and part mortgage back on the premises, when in fact it was but $32,727, of which one third was paid down out of the corporation funds paid in by the bona fide stockholders, and the balance covered by a mortgage back to Siegert; and that the balance of the funds of the corporation paid in by such bona fide stockholders, aggregating in all $23,700, was kept by said defend VOL. 96-15 Franey vs. Warner and others. ants Warner, Warner, and Wambold as profits, without the knowledge of plaintiff or others similarly situated. (5) That before the commencement of this action plaintiff notified defendants that he elected to rescind the contract to purchase the land and to take stock in the corporation, on the ground of fraud, and demanded a return of the $1,120 paid to the corporation, with interest thereon; also a return to plaintiff of his contract of subscription; and that he offered at the same time to turn over to defendants his certificates of stock; and that his demands were refused. (6) That the corporation, though a proper party, in no way participated in the fraud upon plaintiff, or is responsible therefor. Upon such facts the court concluded: (1) That Warner, Warner, and Wambold were promoters of the corporation, and its agents in the purchase of the land, and occupied such relation to it that they had no right to make any profit out of the purchase of the land, and that all profits made by them in such purchase were in breach of the trust, and contrary to equity. (2) That the plaintiff is entitled to judgment rescinding the suscription to the purchase of the land and to the stock of the corporation upon reassigning to the promoters the certificates of stock in the corporation, and depositing the same with the clerk of the court for such promoters; and that plaintiff is entitled to judgment against said defendants Warner, Warner, and Wambold for the money paid to the corporation, $1,120, and interest thereon from the time it was so paid, with costs and disbursements; and that the defendant corporation is entitled to a dismissal of the action as to it, with costs. Exceptions were duly filed on behalf of defendants Warner, Warner, and Wambold, and they, after rendition of the judgment, appealed therefrom to this court. Orren T. Williams, for the appellants. For the respondent there was a brief by N. S. Murphey, |