(dissenting). In support of his claim to establish the bailment of his automobile with defendant, plaintiff Eckerle showed that he pulled his car onto a paved lot adjacent to the establishment of the defendant, and that someone came up, took his keys and car and gave him a receipt which bore the name of no operator in exchange therefor.
During this presentation of plaintiff’s case, no evidence was introduced to show any marking’s to indicate the ownership of the lot or operator of this lot. No evidence was introduced to show that any specific charge for parking was indicated, or that any charge for parking was made. No evidence was presented from the financial records of the defend*11ant. No evidence was presented to show any uniform on the attendants or other indication that would denote a relationship between the attendants and the defendant.
At the conclusion of the plaintiff’s case, defendant moved for a directed verdict of no cause of action which was denied.
A reading of the record discloses that at the point at which plaintiff rested his case, he had failed to establish that the defendant had any real or apparent responsibility for the lot onto which plaintiff drove his automobile, or that any of the persons around the building’ or on the parking lot were employees or agents of the defendant.
On the record made in the presentation of the plaintiff’s case, the trial court erred in not granting defendant’s motion for directed verdict of no cause of action. While sufficient evidence had been presented at this point to establish a bailment, the plaintiff failed to establish the most important fact: that the bailment was with the defendant.
By his own testimony, plaintiff did not rely on any signs on the premises to determine who operated the lot. The record discloses that he did nothing to determine the identity or employment of the person to whom he was entrusting his automobile.
Plaintiff’s complaint was brought in assumpsit. In the second count thereof, the allegation is made that the defendant “held itself out.” This is the only usage of words indicative of any intention to rely on an estoppel theory.1 However, it is apparent that if the claim of an express contract between the plaintiff and defendant fails, this must be *12the essence of plaintiffs legal theory. Plaintiffs second argument and citations therein in its appellate brief confirms this reasoning. Extensive research has failed to reveal any reported case involving a parking lot bailment with a similar factual background where the plaintiff has chosen the vehicle of estoppel as a basis for establishing the defendant’s liability.
Among cases found involving estoppel, it is clear that the court looked to what the defendant did, failed to do, or suffered to be done that gave rise to liability. Generally these cases deal with operations within a principal operation such as in Manning v. Leavitt Company (1939), 90 NH 167 (5 A2d 667), where a hotel permitted a beauty shop housed on its premises to use the hotel name for advertising to the public. See Santise v. Martins, Inc. (1940), 258 App Div 663 (17 NYS2d 741); Grishman v. The Lincoln, Inc. (1941), 28 NYS2d 488; Rubbo v. Hughes Provision Co. (1941), 138 Ohio St 178 (34 NE2d 202); Stuyvesant Corp. v. Stahl (Fla, 1952), 62 So 2d 18; Adelphia Hotel Co. v. Providence Stock Co. (CA3, 1922), 277 F 905.
The doctrine of equitable estoppel arises “where a person, against whom it is pleaded, by his conduct induces another person relying on such conduct to believe in'the existence of a particular state of .facts and to act thereon to his prejudice.” 31 CJS, Estoppel, § 59, p 374. Nothing in the plaintiff’s case, as pleaded or presented below, showed the initial requisite in the above-cited definition. Defendant’s conduct was not shown to have induced plaintiff’s reliance.
Twenty Grand defended on the theory that it did not operate the parking lot either through agents, servants, or employees. Further, it answered .that none of its agents, servants, or employees accepted plaintiff’s automobile under a bailment for gain *13and sufficient consideration given to the defendant; that the garage keeper’s liability statute2 through which plaintiff sought to fix its liability, did not apply to the transaction in question; and that defendant in fact was not liable under any common-law bailment theory. Defendant further relied on the affirmative defense that said lot was leased to another person for purposes of operating a parking lot and that it did not have any control, care, custody, or possession of any lot on which Eckerle could have relinquished possession of his automobile.
Defendant, through its president, Martin Eisner, testified relative to the existence of a lease providing for the leasing of the lot, upon which plaintiff delivered his car to an attendant, to one Willie Anderson, for purposes of operating a parking lot, which lease purported to be in effect at the time of the Eckerle transaction. The lease was allowed into evidence.3 Mr. Eisner denied that either the Twenty Grand or anyone acting on its behalf engaged employees that worked on the lot. He denied that the Twenty Grand paid any of the parking lot employees. He denied that Twenty Grand exercised any care or control whatsoever over the employees. He testified to the existence of a shanty upon the parking lot for the use of the parking attendants. He testified as to the existence of a sign 3' x 7' on the lot which bore the name “Andy’s Parking Lot,” which was located above the shanty. He testified that there was no sign on the lot in question which stated “entrance.” He testified the lot was leased to Willie Anderson at that time and that the purpose of the lot was so customers could park, and that other *14than Twenty Grand customers could use the lot. He testified that the area was not fenced, but was lighted with floodlights located above the shanty. He testified to the existence of an “attraction panel” indicating the attraction playing at the Twenty Grand on Warren avenue, with the word “entrance” upon it. (This is not the entrance nor the lot that was used by plaintiff.) Mr. Eisner denied having any employees immediately inside or outside the entrance to the Twenty Grand.
An exhibit numbered “Defendant’s Exhibit 2” was introduced which was a picture of the sign which bore the legend, “Sorry we cannot be responsible for loss or damage to cars. Please do not leave valuables in cars. Glenn’s Parking Lot Inc.” Mr. Eisner testified that it was a picture of the sign that was upon the shanty on the parking lot at the time of the Eckerle transaction and that the only difference was that “Andy’s” before “Parking-Lot” was painted out and the new name substituted upon change of tenants.
After the testimony of Mr. Eisner, one John Albert Glenn, called by the defendant, testified that he was an employee on the lot on January 5, 1962, employed and hired by Willie Anderson. Mr. Glenn testified that he worked for tips; that he never received moneys from the Twenty Grand; that he is now the lessee of this parking lot; that neither the Twenty Grand nor any of its personnel ever supervised or controlled the work on the lot; that if there was any disturbance on the lot, as during January of 1962, he would go to Willie Anderson; that the parking lot in question was 20' or 25' wide. Mr. Glenn’s testimony indicated that the lot in question, though used for parking, was previously a receiving-lot and that the cars were parked in other lots, on the street and even on a school construction site; that no charge was made for parking and that the at*15tendants relied solely on tips for their service; that for the right to work on said lot, attendants paid Anderson from $4 to $5 per night ont of the tips they received; and that Mr. Anderson paid the Twenty Grand rent. The lease provided for a $50 a month rental.
"When the defense rested its case, plaintiff Eckerle was recalled for rebuttal and testified that he could not say if the attendants had uniforms; that they were dressed in dark clothing and quite similar; and that he did not have his keys returned on the night in question.
Based on the evidence substantially presented above, the trial court found that a bailment relationship existed between Eckerle and the defendant; that it was a benefit to the defendant to have Eckerle patronize its establishment and as an inducement defendant offered handy parking facilities; and that the purported leasing of this valuable asset of defendant’s business for $50 per month to one who is able to realize $5 per night per attendant is a simple ruse designed to escape liability for losses such as suffered by Eckerle.
The trial court entered judgment for the plaintiff in the amount of $689.13 with $7 costs and $25 attorney fee and denied defendant’s motion to set aside the judgment entered.
On appeal defendant asserts that the trial court erred in nullifying the lease in question and in finding a bailment relationship between Eckerle and the defendant, and that notwithstanding the lease, the trial court erred in holding the loss of bailed property by theft created a presumption or fact of negligence chargeable to the bailee.
The uncontradicted record reveals the fact that a 3' x 7' sign was located above the shanty on the 20' to 25' wide lot which indicated the lot was oper*16ated as “Andy’s Parking Lot.” The conclusion of the trial court that this was an obscure sign.is unwarranted as it is unsupported by any facts in the record that would allow for such an inference to be drawn.
On the vital question of whose employees, agents, or servants were operating the lot, i.e., who entered into a bailment relationship with the plaintiff, no greater evidence was introduced during the defendant’s case. Only on what was termed rebuttal evidence, which was timely objected to by the defendant and erroneously permitted by the trial court, was there evidence to the effect that plaintiff could not say the attendants were in uniform, but that all were dressed in dark, quite similar clothing. The issue of dress of the attendants was never raised during the plaintiff’s or defendant’s case. On the question of who actually took the bailment stands the uncontroverted testimony of one of the parking attendants that, on the night in question, he acted as one of the parking attendants under the direction of one Willie Anderson with whom he shared his tips on an agreed basis for being allowed to act on the lot and accept tips for the handling of cars.
The validity of the lease also stands uncontradicted. No evidence was presented to show that the parties to the lease did not act in accord with its terms or that the lease was fictitious. The plaintiff and the trial court, on the facts presented herein, are not allowed to delve into the reasons for the existence of the lease or into the economic benefits that might accrue to any of the parties thereto from its existence. No evidence was presented to show any • fraudulent action by the parties td the lease to the detriment of the plaintiff. The fact that there is no evidence relative to the recording of the lease has no effect on the outcome of this matter as there is no showing that plaintiff relied on the recorded *17title to the lot in entering into his relationship with the person to whom he entrusted his automobile.
It is well settled that as between the parties to a written agreement, where the language of the agreement is plain, complete and unambiguous, the rights and obligations of the parties under the agreement must be gathered from the instrument itself, absent a showing of fraud in the making or inducement. See -32 Am Jur, Landlord and Tenant, § 127, p 130; Hoose v. Prescott Insurance Company of Boston (1890), 84 Mich 309. We fail to see how a greater right to attack the validity of a written agreement such as the lease involved herein can be given a third'party not privy to the agreement.
The trial court in its written opinion spoke of the lease as a simple ruse designed to escape liability for losses such as we have in this case. The trial court by its own statement, was moved by the fact that the operator of the lot apparently made a very substantial profit over the monthly rental for which the lease provided. The reasonableness of the financial arrangements between the lessor and lessee is not an issue in this lawsuit.
This writer can find no statute or case law that would preclude the arrangement between the lessor and the lessee in this cause. It is within the rights of the defendant, if he does not desire to engage in a parking operation, to remove himself from it. His motives, be they that he does not want the exposure to the liability that such an operation involves, or the personnel problems that such an operation entails, are not controlling. It is the defendant’s action or what he suffers others to do in relation to the transaction in question that is controlling. The trial court in determining the relationship of plaintiff and defendant must look to the conduct of the party sought to be charged. In cases such as this, it is not enough to show what plaintiff believed, but what *18defendant did or failed to do that he should have done to give rise to this belief. In this case no evidence was presented to show that defendant in anyway through its agents, servants, or employees, misled plaintiff into believing he dealt with anyone other than the person to whom he entrusted his automobile or the operator whose sign was displayed on the lot. We find no evidence to show that the operator of the parking lot held out to plaintiff or the public, by way of the ticket used, or uniform of the attendants, or sign on the lot, that this was an operation of the Twenty Grand and that the defendant allowed him to so do.
Evidence that this lot was adjacent to defendant’s premises, that there was an entrance or exit onto the lot from defendant’s premises, or that the parking attendant took Eckerle’s car, is not sufficient to sustain the conclusions drawn by the trial court herein to establish the necessary relationship of the defendant to make defendant a bailee of Eekerle’s property. The actions of one of the defendant’s employees, called from within the defendant’s establishment after the bailment and apparent loss, in helping to search for the automobile after it was found missing, and the calling of the police, does not allow the inference that the interest of a bailee existed, for it can equally be inferred from these acts that the person was acting as a good Samaritan coming to the assistance of one in difficulty.
The record does not support the finding made by the trial court that a bailor-bailee relationship-existed between plaintiff and the defendant. The trial court’s judgment was clearly erroneous.
The writer would reverse.
In view of our determination here, it is not necessary for us to determine whether, under our present practice, prior ease law requiring that where an estoppel is an element of a cause of action it must be specially pleaded (see Pearson v. Hardin [1893], 95 Mich 360) would be applicable where such is not one of those matters specified in GCR 1963, 112, “Pleading Special Matters.”
CL 1948, § 256.541 (Stat Ann 1960 Kev §9.1721).
The lease on its face indicates it was entered into on a Sunday; however, this issue was not properly raised either at the trial level or on appeal.