Opinión by
Mb. Justice Gbeen,
By the terms of the agreement between the plaintiff and the defendants, the latter agreed that in consideration of the plain*495tiff investing with them $5,000 in a company to be formed by them for the manufacture of patented carpet lining and bottle wrappers, they, the defendants, would issue to him $10,000 of the stock of the company. The defendants further agreed that they would give the plaintiff a receipt for the $5,000 as the money was paid in and would issue proper certificates of stock when the company was properly formed, “ which will not be until we are ready to put the goods on the market later.” The plaintiff paid in his $5,000 to the defendants shortly after the agreement was made, which was dated April 16, 1892, the payments being completed by June 14, 1892. The company was not formed during 1892 and in September of that year the plaintiff wrote to the defendant Lockwood about the delay, and received a reply that they would commence operations the fol lowing spring. Nothing was done in the spring of 1898, and other correspondence followed which resulted in a meeting of the parties in New York in January, 1894. At that meeting the defendants agreed to refund to the plaintiff his $5,000, and, until it was paid, they agreed to pay interest on the money. On February 3, 1894, they paid him $100 on account of the interest, and in December, 1894, a further payment on account of interest of $145.15 was made, and after that nothing more was paid of either interest or principal. More correspondence ensued during the years 1894,1896 and 1897, with promises to pay on the part of the defendants, but which promises were never fulfilled, and finally the plaintiff brought the present action in 1897. West was the only defendant served with process, as the others resided out of the state. Nearly five years had then elapsed since the agreement was made, and no company was formed, no stock was given to the plaintiffs; there was indeed no stock in existence, and no money was paid back to the plaintiff except the two small payments on account of interest. We think the court below was entirely correct in charging the jury that the question for them was, why should not the plaintiff have back his money? The court further charged the jury that as no time was fixed in the agreement for completing the organization of the company it must be done in a reasonable time, which was quite right. We do not discover any error in the charge nor in the rejection of the offers of testimony. The question seems to be of the simplest char*496acter. There was no pretense of any compliance on the part of the defendants with the terms of the contract. They received the plaintiff’s money in consideration that they would form a company and give him stock therein to the amount of $10,000, and they did nothing of the kind. They certainly cannot keep the plaintiff’s money in those circumstances. Their want of success in the formation of the company is no concern of the plaintiff, and it is no defense in this action.
Nor is it of any account that the money was properly applied in the development of patents and in other expenses. That was not a contingency in which the defendants would be relieved of their liability. Nor was it of any consequence who should have control of the patents when issued, and hence the offer of proof on that subject was properly rejected. Mr. Lockwood was allowed to testify fully on these subjects, but his testimony did not change the legal aspects of the matter in the least. The assignments of error are all dismissed.
Judgment affirmed.