Olds

As assignee of Leon A. Kutner, the plaintiff commenced an action against the defendant for moneys had and received. The defendant answered and a trial was had before the trial court sitting without a jury. The trial court made findings in favor of the plaintiff, and from the judgment entered thereon the defendant has appealed and has brought up a typewritten record.

Heretofore the plaintiff's assignor and the defendant executed a written instrument which is as follows:

It should be. noted that Simmons agrees to form a corporation having 1,000 shares of class A stock and 100,000 shares of class B stock. Nothing to the contrary appearing, the entire block of stock will belong to Simmons. The inventor, Todt, will get no stock, as he has been paid $1,000 for “an interest in said lotion and the right to commercialize” it. The instrument provides that Kutner will advance moneys up to the sum of $5,000 but it is silent about the repayment of said moneys in any manner except as we shall recite. It is provided that 5,000 shares of class B stock will later be issued to Kutner, but no consideration therefor is mentioned, and the only conclusion one can draw is that the advancements, $5,000…