Herkner

This is an action to recover the sum of $3,000 upon an agreement for the purchase of certain preferred capital stock of Lubin Inc., a corporation.

The corporation became insolvent, and certain of its creditors procured judgment against it, upon which executions issued. These were returned wholly unsatisfied, and the claims were subsequently assigned to plaintiff, who is also a judgment creditor.

The subscription agreement reads as follows:

According to the findings Lubin Inc. was incorporated under the laws of California on August 16, 1926, and the above agreement was executed on the day it bears date. On August 18, 1926, the corporation for the first time applied to the commissioner of corporations for permission to issue to the defendant for cash the stock called for in the agreement. A permit to do so in accordance with, the application was issued on September 7, 1926, upon the condition that the stock was escrowed in conformity with the terms of the permit. It was also found that the corporation at no time pursuant to the terms of the permit issued said stock to defendant. The articles of incorporation filed did not contain defendant’s name as a subscriber for the stock.…