Mohun v. Timm

McCOMB, J.

This is an appeal upon the judgment roll alone from a judgment in favor of plaintiffs after a trial before a court without a jury.

The conceded facts are:

[138]

designing, constructing, or selling airplanes, or aircraft pursuant to the terms of said alleged agreement, or at all; and it is not true that on or about the 1st day of April, 1936, plaintiffs and defendants formed and organized a corporation for such purposes or otherwise or at all, known as ‘General Aircraft Corporation ’, or filed its articles of incorporation with the Secretary of State on said date but that it is true that the plaintiffs caused to be filed on or about said date, certain purported articles of incorporation of a corporation called ‘General Aircraft Corporation’ purporting to have been executed and acknowledged by the defendants and the plaintiffs, while in truth and in fact said articles of incorporation had not been executed by the defendants or either of them, nor acknowledged before a notary public; that the defendants had signed but not acknowledged, certain proposed articles of incorporation but that the plaintiffs subsequently and without the knowledge or consent of the defendants, or either of them, changed the terms and provisions of said articles as signed by defendants by substituting a page thereof, chang-ing the stock structure of said corporation from stock of no par value to stock having a par value of one dollar per share; that this fact was not discovered by defendants until after suit was filed herein.

[137]

A.

Pleadings.

The complaint in two separate counts alleged causes of action based upon an express contract, the substance of such contract being that on or about March 25, 1936, plaintiffs, who were lawyers, entered into a contract with defendants, airplane designers and manufacturers, to form a corporation for the purpose of. designing, constructing, and selling airplanes; and agreed to share between themselves in stated proportions any bonus or promotion stock issued by the corporation. It was further alleged that defendants refused to perform the contract as a result of which plaintiffs were damaged in a large sum of money.