ON PETITION FOR A REHEARING.
Worden, C. J.appellant has filed a petition for a.$ :rehearing in this case, claiming, as we understand the argu■ment, that as it was shown by averment and proof, that the defendant’s contract was made with an existing corporation, it should be treated as such; and therefore it was unnecessary for the plaintiff to show that the proper steps had been •taken to perfect the organization of the corporation.
In the original opinion, we set out in full the contract ‘entered into by the defendant. That contract very clearly was not with an existing corporation. It contemplated a future organization of the corporation, to which he was to 'become liable on his subscription. To treat him as having promised to pay the amount of his subscription to a corporation which then existed, would be to make a new contract for him in place of the one which he made for himself. 'There may have been a corporation of the same name, and organized for the same purpose, in existence at the time the defendant made his contract; but if so, the contract set out was not made with such existing corporation. That contract was to pay a corporation to be thereafter organized and brought into existence. The ground upon which a party who has contracted with a corporation as such is estopped, to deny its existence, is, that by his contract he has recognized the existence of the corporation.
The contract in question, instead of purporting to be made with an existing corporation, utterly excludes the idea of its present existence, but contemplates the future organization of the corporation, to which he was to pay the amount of his subscription.
*150The legal effect of a written contract cannot be thus changed by averment or parol evidence.
The petition for a rehearing is overruled.