This suit was brought to recover the purchase price of certain stock which had not been approved for sale by the Michigan securities *Page 461 commission. The plaintiff bought the stock from the defendants who are brokers with offices in the city of Detroit. When he learned that it had not been approved for sale, he claims to have made a tender and demanded the return of his money. On refusal he brought this suit. The defendants filed notice of set-off in which they claim damages of $3,274 for failure of the plaintiff to pay for 100 shares of the stock. The case was tried by the court without a jury. Findings of fact and law were filed and a judgment of no cause of action entered. Both parties have appealed.
The following questions are involved:
1. Does the so-called "knowing" clause of Act No. 220, Pub. Acts 1923, § 20, apply both to the seller of the stock and to his agent?
2. Was the sale an interstate commerce transaction so as not to come within the provisions of the blue-sky law (2 Comp. Laws 1929, § 9769 et seq.)?
3. Was there a valid tender?
1. Does the so-called "knowing" clause of Act No. 220, Pub. Acts 1923, § 20, apply both to the seller of stock and to his agent?
Section 20 reads as follows:
"Every sale or contract for sale of any security, not accepted for filing under this act or made contrary to any order of the commission, shall be voidable at the election of the purchaser, and the person making such sale or contract for sale, and every agent of or for such seller who shall have participated or aided in any way in making such sale, knowing such sale to be in violation of this act, shall be jointly and severally liable to such purchaser, upon tender to the seller or in court of the securities sold or of the contract made, for the full amount paid by such purchaser, together with all taxable court costs in any action brought under this section: *Page 462 Provided, That no action shall be brought for the recovery of the purchase price after two years from the date of such sale or contract for sale. No purchaser otherwise entitled shall claim or have the benefit of this section, who, having knowledge of the fact that such sale was made in violation of the provisions of this act, shall have refused or failed within a reasonable time to accept the voluntary offer of the person making the sale to take back the securities in question and to refund the full amount paid by such purchaser."
It is the plaintiff's contention that the "knowing" clause of this section does not apply to the seller but applies to the agent only; that it should receive a liberal construction and when so construed it leaves the liability of the seller as it was before the enactment. There is no occasion for a construction of the language used. There is no uncertainty or ambiguity about it. We cannot construe it contrary to the plainly expressed language of the legislature. It means just what it says; and it says that the seller and agent shall be jointly and severally liable to the purchaser if they make the sale knowing it to be a violation of the blue sky law.
Prior to the enactment of 1923, the statute contained no provision like section 20, but, without such a provision, this court allowed the buyer to recover the purchase price on the theory that the sale was a violation of a penal statute and therefore void. Section 20 of the 1923 act gave him a new remedy but made it depend on the knowledge of the seller or his agent that the sale of the stock had not been approved by the commission. Section 20 was amended in Act No. 136, Pub. Acts 1929 (2 Comp. Laws 1929, § 9788), by eliminating the "knowing" clause. But that clause was in the statute when the sale of stock in this case was made. As it applies *Page 463 to the seller, in order to make a case against him, the plaintiff must prove that he knew that the sale of the stock had not been approved by the commission. There is no evidence of that in the record. It is all to the contrary. Not having established that necessary element in his case, it follows that the plaintiff cannot recover in this action. And as this is decisive of the issue, it becomes unnecessary to discuss the other questions involved.
The judgment is affirmed, with costs to the defendants.
CLARK, C.J., and POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.