229 Ill. 581 | Ill. | 1907
delivered the opinion of the court:
That an understanding existed between appellant and Sherman and Winn that appellant had an interest in the mine all, in effect, agree. The only dispute is as to the character of the interest, appellant insisting that he had a valid contract for two hundred thousand shares of the capital stock; appellees, that his interest was a mere promise of a gift of the stock, contingent upon his services proving satisfactory to Sherman and Winn and upon his putting the company upon a dividend-paying basis. It was to this issue that all the evidence was directed. The correspondence all recognizes fully appellant’s interest in the stock of the corporation but throws very little light upon its character,— whether contingent, as claimed by appellees, or based upon a contract for the stock, as claimed by appellant. It is true that appellant was elected a director and treasurer of the company, and that he was not entitled to hold either of these positions unless he was a stockholder. Sherman also procured from appellant a proxy to vote his shares at a stockholders’ meeting, and by virtue thereof did vote two hundred thousand shares. But it is admitted the stock was never issued. Appellant’s election as director and treasurer and the voting of his stock were illegal, for he was never actually a stockholder. These acts, as well as parts of the correspondence, amount to admissions that appellant was a stockholder in the corporation to the extent of two hundred thousand shares. But it is clear that he was not such stockholder, and this evidence affords little indication of what his interest was or how it was acquired.
Appellant states in his bill that Sherman and Winn agreed that appellant should have $200,000 of the stock without condition. This is denied, and it devolved upon appellant to prove it. He testified to it. Sherman and Winn both denied it and testified to the conditional promise made, as alleged in their answer, without any consideration, after appellant had been employed as superintendent of the mine. While their acts of recognition of appellant as a stockholder, and the correspondence, tend to corroborate appellant to some extent, yet they are not, on the whole, inconsistent with the position and the testimony of Sherman and Winn. We do not think appellant proved the contract stated in his bill by a preponderance of the evidence. On the contrary, the preponderance is the other way.
The appellant had nothing to do with obtaining the charter of the company. So far as the evidence shows he had no interest in the mines which were transferred to the company in consideration of the issue of all its capital stock. He had, some months before the company was organized, gone to New Mexico, at Sherman’s request, to-examine the mines, but Sherman paid him for that. His employment as superintendent of the mines was an entirely separate matter and had nothing to do with the alleged contract for the stock. He neither gave nor agreed to give anything, neither did nor agreed to do anything as a consideration of the agreement he claims to have had for this stock. The bill contains no allegation of any consideration and none is disclosed by the evidence. It is elementary that an executory contract without consideration cannot be enforced in a court of either law or equity.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.