The acts of the copartners show that the capital was nominal or to be paid by services, and the circumstances under which the partnership agreement was made should have, been taken into consideration. Lindley on Partnership, 408; Bowler v. Gleason, 2 Atl. Rep. 885; Grieb v. Cole, 27 N. W. 579; Foster v. Schmeer, 15 Pac. Rep. 626.
C. Wellington, for the respondent, argued: That there was no latent ambiguity in the contract of partnership, and that, therefore, oral testimony to explain it was inadmissible. Gove v. Gowne, 3 N. E. Rep. 463; Brady v. Cassidy, 6 Cent. Rep. 76; Norton v. Woodruff, 2 N. Y. 153; Giles v. Comstock, 4 ib. 270.
Plaintiff is estopped from demanding non-assessable stock. He induced respondents to believe that he would carry into effect the partnership agreement to organize a corporation; he joined them in the organization of it. Their money is invested on the belief that he would comply with the terms of the contract; the plaintiff does not assert his claim till the assertion will injure them. Simpson v. Pearson, 31 Ind. 1; Horn v. Cole, 51 N. H. 287; Douglas v. Scott, 5 Ohio 195; Morris Canal Co. v. Lewis, 12 N. J. Eq. 323; Chapman v. Chapman, 59 Penn. St. 214; Continental Bank v. Bank, 50N. Y. 575.
Bartholomew, J. On November 26, 1886, and as a result of certain parol negotiations theretofore had, the plaintiff, Hennessy, and the defendants Griggs and Eshelman, entered into a written agreement of copartnership, as follows: ‘This contract of copartnership, made and entered into between Alexander Griggs, J. S. Eshelman, and Thomas Hennessy, all of the city of Grand Forks, county of Grand Forks, and territory of Dakota, witnesseth: That the parties aforesaid have, and by these presents do, enter into and form a copartnership under the name and style of the ‘Dakota Gas and Fuel Company.’ The principal place of business of said copartnership shall be the city of Grand Forks; and the nature of the business to be transacted shall be the manufacture and sale of gas and coke, also dealing in and selling of fuel of all kinds. The capital of said copartnership shall consist of $50,000 Alexander Griggs to furnish $5,000; Thomas Hennessy, $10,000; and J. S. Eshelman, $10,000; the remaining $25,000 to be held by Griggs, to be by
