Error
to circuit court, Richland county.
Leonard
L. Parry, defendant in error, brought action in the court of
common pleas of Richland county against A. M. Mosier, M. D.
Harter, L. F. Harrington, B. F. Platt, W. L. Leonard, M. B
Bushnell, George W. Snyder, and W. A. Van Frank, as partners
doing business under the firm name of the Mansfield
Improvement Company, and individually, to recover for an
alleged breach by them of a contract, a copy of which is as
follows:
‘Memorandum
of an agreement made this twenty-first day of September, A.
D. 1893, by and between the following named persons: A. M
Mosier, M. D. Harter, L. F. Harrington, B. F. Platt, W. L
Leonard, M. B. Bushnell, George W. Snyder, and W. A. Van
Frank, individually and as a partnership doing business under
the name of the Mansfield Improvement Company, and A. J
Twitchell and L. L. Parry, witnesseth: That whereas, the said
parties hereto desire to organize a jointstock company to be
incorporated under the laws of the state, to be located and
have its principal place of business at Mansfield, in said
state of Ohio, to be known as the Mansfield Stone and Sand
Company; said company to be organized for the purpose of
conducting the business of quarrying and selling stone and
sand, also of working deposits of shale and selling the same.
Said incorporated company is to be organized with a capital
stock of $50,000. Fifty per cent. of each dollar of stock is
to be paid up. Said incorporated company is to be organized
as soon as possible, and the business for which it is
organized is to be pushed forward as rapidly as possible
until said company is put upon a working basis. It is hereby
agreed by and between all parties hereto that the twelve-acre
tract of land now occupied by L. L. Parry, lying in the
southeast quarter of section 15, township 21, range 18
together with all the developments and improvements made
thereon by the said Parry, shall be conveyed to said
corporation by deed in fee simple. The said L. L. Parry shall
be allowed and paid for his interest therein as follows: The
sum of six thousand dollars, which is to be paid by said
company to be formed to said L. L. Parry. which he agrees to
dispose of as follows, to wit: Said $6,000 to be divided into
two sums, $3,600 thereof, which said Parry is owing on said
land, to said improvement company. Said new company shall pay
as follows: $1,400 cash down. The remaining $2,200 it is
expected the members of said improvement company will take in
stock of said company to be formed, and George W. Snyder, M.
B. Bushnell, B. F. Platt, and W. L. Leonard hereby agree to
accept their portions thereof in stock, the interest of the
other members of said improvement company in said $2,200 to
be paid in stock or money, as may be hereafter determined.
The balance of said $6,000, to wit, the sum of $2,400, said
new company is to pay in capital stock, to wit, the sum of
$4,800 in the capital stock of said company, which said Parry
hereby agrees to dispose of as follows, to wit, to turn the
same over to the several members of the said Mansfield
Improvement Company, in consideration that they make no
charge of interest against said sum of $3,600 owing said
improvement company from said Parry. Further, that the said
L. L. Parry is to be employed by said corporation to be
formed as superintendent at a salary of sixty dollars per
month for the first six months, said employment to date from
the time when said property is turned over by said Parry to
said company. It is further agreed by the parties hereto that
the said L. L. Parry is to receive and to be paid as a
compensation for the work done on said tract of land, and the
development already made by him thereon, the sum of $6,000 in
the capital stock of said new corporation to be formed.
Further, that the said L. L. Parry is to receive and be paid
for all machinery and tools owned or used by him belonging to
said quarry as per an itemized list thereof hereto attached,
marked ‘Exhibit A,’ the sum of three thousand
dollars, to be paid in cash: provided, however, that the said
Parry shall pay or cause to be paid all debts or claims owing
thereon, or liens or claims against the same or any part of
them, or, if not so paid, said company shall have the right
to pay the same, and deduct the amount so paid from said
amount to be paid Parry as aforesaid, and pay him the balance
thereof. The said incorporated company to be formed is to pay
to B. F. Platt and Charlotte Spice the sum of one thousand
dollars as consideration for right of way for switch or
railroad track across the lands of said Platt and Spice, as
contracted for by said L. L. Parry with said Platt. Said
company is also to pay to A. J. Twitchell, W. L. Leonard, and
L. L. Parry the sum of one thousand dollars as consideration
for damages to lots owned by them abutting on the north side
of Vine street, in the city of Mansfield, occasioned by the
running of said proposed switch or railroad track along the
north line of said street, or, in lieu thereof, said
corporation shall have the option of the purchase of said
lots at the agreed price of $3,142.00, with interest from the
date of this agreement. It is understood and agreed that this
contract shall not invalidate the contract for the purchase
of land by said Parry from the said Mansfield Improvement
Company until said proposed company is fully organized, and
the considerations herein stipulated for are paid according
to the terms thereof; and when so paid and performed said
Parry shall immediately turn over to said company all
property herein stipulated to be sold by him. And the making
of this contract shall not be considered in any way as an
admission of the validity or invalidity of said contract
between said Parry and said improvement company, and shall
not, in any event, be taken and considered as such. It is
further stipulated and agreed between all parties hereto that
each and every person hereto shall give his utmost personal
attention to the immediate formation of said proposed
corporation, and perfecting the organization of the same, and
for this purpose each person of this agreement pledges his
hearty co-operation. It is understood and agreed by all
parties hereto that said company shall be fully organized
within thirty days from the date of this agreement. In
testimony whereof, said parties have hereunto set their hands
on this twenty-first day of September, A. D. 1893. Mansfield
Improvement Company, by W. L. Leonard, Trustee. A. M. Mosier.
Michael D. Harter. L. F. Harrington. B. F. Platt. W. L.
Leonard. M. B. Bushnell. Geo. W. Snyder. A. J. Twitchell.
Leonard L. Parry. W. A. Van Frank.'
In his
petition, plaintiff averred that he was, at the making of the
contract, possessed of the tract of land described therein
and had opened and was working a valuable stone quarry
thereon, and had made contracts with divers parties for a
right of way for a switch from the main track of N.Y., P.
& O. Railway to said quarry; also the owner of a large
quantity of tools and machinery used in and about said
quarry; all of which property rights, contracts, and
developments defendants were desirous of being possessed of,
and to effect that purpose entered into said contract. And,
in consideration of plaintiff selling and transferring to
defendants said land, they agreed to pay him $6,000, the sum
of $3,600 to be paid to the Mansfield Improvement...
