Richards

This is an appeal by the defendant from a judgment rendered against him on two promissory notes, one for $5,000 and the other for $1,000. The notes were executed to the Latham Square Corporation and by it assigned to the plaintiff. Defendant alleged that the notes were conditional obligations payable only in the event that certain units of the stock of the corporation were sold by him, which was not done. The same contention is made on appeal, and, further, that the trial court erroneously permitted the plaintiff to amend his complaint to conform to the proof.

The facts are as follows: The commissioner of corporations on June 19, 1925, granted the corporation a permit to sell and issue 6,000 shares of its preferred capital stock and 6,000 shares of its common stock in units of one share of preferred and one share of common stock for the price of $120 per unit. On August 20, 1925, the corporation entered into an agreement with defendant by which he was appointed its sole and exclusive agent for the sale of the units mentioned, it being provided therein “that all expenses in connection with the sale of said stock, including advertising and circularization as well as salaries or…