Page:North Dakota Reports (vol. 1).pdf/76

 the jurisprudence of the state of North Dakota, to uphold with a strong hand the safeguards of life and liberty which the law throws around all who invoke its protection. The judgment is reversed, and a new trial granted.

, Plaintiff and Appellant, v., Defendants and Respondents.

1. Partnership—Corporation—Parol Evidence to Vary Written Agreement.

Three parties—G., E., and H.—formed a copartnership under the name of "The Dakota Gas & Fuel Company." The copartnership articles provided that the partnership capital should be %50,000—G. to furnish $5,000, E. to furnish $10,000, and H. $10,000—the remaining $25,000 to be held by G., to be by him negotiated, and raised from outside parties; and, further, that all profits should be divided between the parties in proportion to the capital furnished and held by each, and on the basis of a capital of $50,000, and that, as soon as might be, said parties should incorporate under the same name, for the same purposes, and all the partnership effects should be assigned to the corporation, and that the capital stock should be not less than $50,000, and should be held and divided among said parties in the same proportion as the capital of said copartnership. Held, (1) that the articles contemplated that the capital to be furnished as specified should be actual capital, and that parol evidence to show that said capital was to be nominal only was properly disregarded; (2) that plaintiff H., having joined with G. and E. and two other parties in executing and filing articles of incorporation, whereby they became a body corporate under the name and for the purposes provided in the copartnership articles, as between said parties, and under the copartnership articles, the existence of the corporation worked eo instanti the dissolution of the partnership, and that, although the articles of incorporation provided for five incorporators, instead of three, and fixed the capital stock at $100,000, yet, as H. was one of the incorporators, he is conclusively held to have assented thereto, and cannot be heard to say that the corporation so formed is not the corporation provided for by the copartnership articles, particularly when such changes could in no manner affect his interest in or control over such corporation; (3) that, while H. was a necessary party to a transfer of the firm property to the corporation, yet a transfer thereof by G. and E. cannot, in equity, be avoided by H. because he wrongfully refused to join therein; (4) that, as all the capital stock of the corporation would