I think the judgment should be affirmed. Lyon, Cook, Canning and Felter as promoters of the company agreed together immediately prior to its incorporation that plaintiff should have twenty-five shares of stock “ in payment for the amounts to become due * * * for services to be rendered * * * to the company ” to its satisfaction. On its incorporation the above-named promoters became officers and directors of the company.
Cook, vice-president, swears that after the company was incorporated plaintiff was told of the arrangement. Plaintiff confirms him, and both say that in view of this arrangement and presumably in faith thereof, plaintiff was asked to open the books of the company, which he did, and performed other services as well. This seems to me to show acceptance of the contract by the plaintiff and the adoption thereof by the company. Plaintiff performed all the services required of him, and stood ready to perform such further services as might be required, and his action is one for damages for the breach of the contract. I do not think the Stock Corporation Law has anything to do with the case. Proof that all of the stock was issued and that the company was unable to issue to plaintiff any stock would have been no defense, because in such case he would be entitled to the value of the stock at the time he became entitled to receive it. As to the extent of plaintiff’s right to *96recover it might be argued that under the peculiar form of the agreement plaintiff was not entitled to claim twenty-five shares of stock for any service he might render, however small, and that the contract might be construed as an agreement to appropriate twenty-five shares, of which he was to receive so much as might represent the value of the services he might render. But the court charged the jury as follows: “ The question is, were the services which Cook employed the plaintiff to perform with regard to the books, the services contemplated and intended in this agreement,” and this question the jury must be assumed to have answered in plaintiff’s favor. On this theory the recovery was right, and the exclusion of the testimony offered by defendant to show the value of the services actually rendered by plaintiff was correct.
Under any circumstances the complaint should not be dismissed, for plaintiff was at least entitled to recover the value of stock equal to the value of the services he actually rendered.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.