Coal Mining Co. v. Bigger et al. [Vol. 22 (N.S.) or had any interest therein, and it is very doubtful whether either had any interest in the options which could be enforced. Options were defined by our Supreme Court in Brewing Company v. Maxwell, 78 O. S., at page 63, as "merely contracts by which one party in consideration of the payment of a certain sum to the other party, acquires the privilege of buying from or otherwise acquiring, or selling to such other party an interest in specified property at a fixed price within a stated time." And in Longworth et al v. Mitchell, 26 O. S., 334. it is held that "where a party makes an offer to sell on specified terms, giving the proposed purchaser the option to accept the terms within a limited period, time is to be regarded as of the essence of the offer, and an acceptance of the terms after the period limited will not be binding." Accordingly, some authorities hold that in order to make the acceptance binding upon the optioner, it is necessary to tender the cash payment called for in the option before the expiration of the option period and thus make the contract of mutual obligation. That is to say, before the acceptance is complete, tender of the cash payment must be made. Steel v. Bond, 32 Minn., 14, 18 N. W., 830; Bostwick v. Hess, 80 Ill., 138; Coleman v. Applegrath, 68 Md., 21, 11 Atl., 284. This, however, has not been decided in Ohio, and is not in accordance with the weight of authority in this behalf. Watson v. Const et al, 35 W. Va., 463, 14 S. E., 249; Breen v. Moyne, 141 Ia., 399; 118 N. W., 441; Levy v. Lyon, 153 Cal., 213, 94 Pac., 881. There is also some question as to whether it was necessary, under the statute of frauds, that the assignment from Bertram to the Elkin Company should have been in writing. It is claimed. and it would seem reasonable to hold that if it was necessary for the owner to enter into a writing to grant an option to purchase his lands, it would also be necessary for the optionee to execute a written assignment to transfer the right to another, but I am not prepared to say that this is the law, nor is it necessary for the solution of this case. These facts, however, would ordinarily be taken into consideration by competent business men, independent of any domination or self interest, moved with an eye single to the interests of the trust which they might represent. 1920.] Coal Mining Co. v. Bigger et al. But however these two questions affecting value might be determined when directly in issue, I am quite sure that the Elkin Company could not enforce specific performance of the option contracts if for no other reason, because it was not the real party in interest. And Bertram could not because he made no effort to accept them at any time, and for the further reason that he attempted to "side step" personal responsibility by arranging to have the same done by an insolvent foreign corporation. Equity will not come to the aid of a plaintiff in specific performance of a contract, who, until after the expiration of the option period, has sought to avoid the obligation upon his part which forms the consideration essential to make the contract binding. Though promoters are entitled to compensation for necessary services rendered in the organization of a corporation, the benefit of which it has accepted, 2 Thompson on Corporations (2d Ed.), Section 89, Farmers' Bank v. Smith, 105 Ky., 816 (49 S. W., S10), Railroad Co. v. Cristy, 79 Pa. St., 54, it must be reasonable and commensurate with the services performed and paid. as such, and not by way of secret profits or excessive valuation of property turned over or sold to the corporation. And finding that the services performed by Bigger and Bertram were necessary to the organization of the corporation, and that they were rendered under such circumstances in the absence of the secret profits arranged for, as to imply an obligation upon the part of the company to pay them therefor, I am inclined to allow them the sum of $2,000 as such compensation. Whether any license issued by the Commissioner of Securities to sell the stock of a company under what is known as the "Blue Sky Law," Sections 6373-1 to 6373-24 of the General Code, is a defense against the claim of persons buying the stock relying thereon, is not involved in this case. This law is "a regulation of business, constrains conduct only to that end, the purpose being to protect the public against the imposition of unsubstantial schemes and the securities based upon them." Hall v. Geiger-Jones Co., 242 U. S., 539, 61 L. Ed., 480. It operates between the company and the state for the protection Coal Mining Co. v. Bigger et al. [Vol. 22 (N.S.) of the public and it does not extend to schemes of designing promoters who attempt to profiteer the company itself. The organization of the corporation, the issuance, manipulation, and sale of its stock, involving breaches of duty both as promoters and directors, were in accordance with and steps in the execution of the scheme by which Bigger and Bertram and their four directors were enabled to defraud the company and those who might subscribe and pay for their stock at a hundred cents on the dollar. A part of the means as well as the object was fraudulent, it amounted to a conspiracy to defraud, and the the participators therein are liable therefor, both jointly and severally, and the company is entitled to an accounting against all of them for the amount of the stock disposed of by them, or any of them, before the commencement of this action. The order will be that each of the defendants surrender to the clerk of this court the certificates of stock so held by him and that the clerk deliver the same to the secretary of the plaintiff company for cancellation. This applies to all the cases. It is further ordered in case No. 14342 that for the 93 shares disposed of by the defendant Bigger, and the 320 shares disposed of by the defendant Bertram, that the plaintiff recover from all the defendants in that case the sum of $41,300 as the value of said stock, provided, that if before the filing of the entry herein any of said stock so disposed of by said Bigger or Bertram should be surrendered for cancellation, the same shal! reduce the judgment to the extent of the par value thereof. Exceptions. Notice of appeal. 1920.] Trull v. Patrick, Executrix. ALLEGATIONS WITH REFERENCE TO A WILL AND CODICILS. Court of Common Pleas of Clark County. HAZEL G. TRULL V. MARY J. V. PATRICK, EXECUTRIX, ETC. Decided, January 19, 1920. Wills-Allegations to a Will and Two Codicils Without Reference to the Validity of a Third Codicil-To What the Verdict of the Jury Should Respond. 1. When a petition alleges that a will and two codicils of a decedent are not his valid last will and codicils, a motion to amend the petition, made more than a year after the probate, so as to attack a third codicil should be overruled. 2. Under the allegation that a will and two codicils are invalid, the validity of a third codicil, not mentioned in the petition, but which republishes the will as of the date of such last codicil, may be contested. 3. The proper issue to be submitted to the jury is whether or not the writing produced is the valid last will and codicils of the decedent and the verdict of the jury should respond to this issue in reference to the will and to each of its several republishing codicils, whether such codicils are mentioned in the petition or not. Zimmerman & Zimmerman and Chase Stewart, for the plaintiff. John M. Cole, for the defendant. GEIGER, J. The plaintiff in her petition alleges the death of Charles E. Patrick and that on the 22nd day of October, 1917, a paper writing purporting to be the last will and testament of the said Patrick, dated May 10, 1913, and two codicils dated, respectively, May 13, 1913, and April 20, 1915, were admitted to probate; that said paper writings are not the last will or the codicils of said Patrick. Plaintiff prays that an issue be made up as to whether such paper writings are the last will and codicils of said decedent. Trull v. Patrick, Executrix. [Vol. 22 (N.8.) On December 10, 1919, a motion was filed to amend the petition by inserting such facts as would disclose that there was a third codicil to said will, dated August 11, 1915, but not mentioned in the petition. The will and codicils having been probated on the 22nd of October, 1917, more than a year had elapsed before the filing of the motion to amend the petition and counsel for defendant urged that under the provisions of Sections 10531 and 12087, G. C., limiting the time in which a contest of a will may be begun, the plaintiff can not amend her petition so as to raise an issue as to a codicil not mentioned in the petition. The court overruled the motion on the ground that if it was necessary that the third codicil be mentioned in the petition before it could be attacked as invalid, the time in which such action might be taken had expired, and that if such an attack might be made under the petition as filed, it would not be necessary to amend the petition so as to mention the third codicil. Counsel now apply to the court to make up the issue, as directed by Section 12087, which provides "an issue must be made up either by pleadings, or an order on the journal, whether or not the writing produced is the last will and codicil of the testator, which shall be tried by a jury." The will of the testator, with the three codicils appended, were all written on the same sheet of paper and were probated at the same time under the following order of the court: "Whereupon, the court finds that the foregoing instruments of writing are the last will and testament and the codicils of said Charles E. Patrick, deceased. * It is therefore by the court ordered that said will and codicils be admitted to probate." The third codicil, which was not mentioned in the petition, and concerning which the controversy now arises, was dated on the 11th day of August, 1915, and is as follows, except the at testation:. "I, Charles E. Patrick, do hereby declare this paper writing to be a codicil to my last will and testament bearing date of May |