Eisenmayer v. Leonardt

McFARLAND, J.

This action is brought to recover damages from the defendants, Leonardt and Capitain, for their alleged failure to organize a eement-mánufacturing company, and to give to the plaintiff Amia M. Eisenmayer one hundred shares of the stock of such company when organized, in compliance with a certain written contract between said Anna and said defendants, set out in the complaint. The plaintiff N. P. Eisenmayer is the husband of said plaintiff Anna. The defendant Capitain was not served with summons, and did not appear, and the action was prosecuted against the defendant Leonardt alone. The court made findings and rendered judgment for defendant, and appellants appeal from the judgment and from an order denying their motion for a new trial.

On the seventh day of December, 1896, there was pending in the superior court of San Diego County an action entitled “N. P. Eisenmayer

v.

Adolph A. Nuelle et al, No. 6,332,” in which action the said Leonardt and Capitain (defendants herein) were defendants. The rights of the said Eisenmayer as plaintiff in said action had been assigned to the present plaintiff Anna, and she had control of the action. At that time the defendants herein were entertaining the project of organizing a company for the manufacture of cement out of certain deposits of rock and clay at a place called El Toro, and had issued a prospectus relating to the contemplated business. Under these circumstances the plaintiff Anna and the defendants Leonardt and Capitain, on said date—December 7, 1896—entered into the written contract out of which this litigation arises. The contract is quite long, and we will refer here only to those parts of it which are material to the consideration of this appeal. The said Anna is the party of the first part and the defendants the parties of the second part, and the first part of the contract is as follows: “That in consideration of the payment of $250.00 cash, by said second

[598]

parties to said first party, the receipt whereof is hereby acknowledged, and the further payment of $250.00 on or before June 7th 1897, by said second parties to said first party, and the issuance to said first party, and delivery to her, of one hundred shares of the par value of $100,00 per share, of fully paid up and non-assessable stock of El Toro Cement Manufacturing Company (or any other cement-manufacturing company organized by the said second parties in lieu of the said El Toro Cement Manufacturing Company) when organized, such cement company to be so organized and the said 100 shares of the said stock to be so issued and delivered to her as aforesaid on or before June 7th, 1899.” It further provides that “in consideration” that the parties of the second part shall guarantee certain dividends on the stock to be issued, to the extent of five hundred dollars and “in consideration” that they should before August 9th, 1897, pay twenty-, five dollars costs in the said action of N. P. Eisenmayer