defendant, acting as mere custodian of funds, had no check on the actual business transactions of said creamery.”
The case was tried upon the issues framed by these pleadings. The trial court made findings and conclusions in favor of the defendant. Judgment was entered accordingly, and the plaintiff has appealed from the judgment and demanded a trial anew in this court.
The evidence shows that on or about July 3, 1911, a certain written contract was entered into between the Hastings Industrial Company of Chicago, Ill., as party of the first part and certain persons, some 46 in number, denominated as the subscribers, as parties of the second part, wherein the said Hastings Industrial Company agreed with the sub- scribers to-construct and equip a gathered cream power. butter factory at or near the town of Burnstad, in Logan county, in this state, for the sum of $4,000. Among others, the contract contained the following provisions:
“The contract is not binding unless the amount of $4,000 or more shall be subscribed, and it is understood that no subscriber is liable for a greater interest in said butter factory when same is completed than is represented by the amount of his or her individual subscription. Each subscriber agrees to pay the amount subscribed by him or her, to first party and no more.
“Payment as follows: 15 per cent. of the contract price when the foundation of the building is ready, and the material for building on ground; the balance 85 per cent. of the contract price, when the plant is completed.
“Subscriptions to this contract may be procured to any amount, and for this purpose one or more forms of this agreement may be circulated, and at any time after the subscriptions on all forms so circulated shall equal or exceed the said purchase price of said butter factory, it may be closed by the first party’s special agent signing the same, and such forms shall be attached and taken together, and shall constitute the sole contract between the parties.
“First party shall have the right first to collect from said subscriptions or notes, as the entire amount due under this contract, but all money, notes, or subscriptions remaining after first party has been fully paid is the property of second parties.
“Second parties agree to appoint an executive committee of three when this contract is closed with full power and authority in a majority
