
    COMBS v KENNEDY
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1906.
    Decided Feb 26, 1931
    F. S. Monnett, Columbus, for Combs.
    George R. Hedges and Charles Case, Columbus, for Kennedy.
   KUNKLE, J:

We have considered the petition of the plaintiff in error and also the briefs filed by counsel. Upon such consideration, we are of opinion that the demurrer was properly sustained by the lower court and that the petition of plaintiff in error fails to state a cause of action. .

We think the case of Copin v Greenlees, 38 Oh St 275, is controlling. The syllabus of this case is as follows:

“An executory agreement between a manufacturing corporation of this state and one of its stockholders, for the purchase of the stock of such corporation, by the former from the letter, cannot be enforced either by action for specific performance or for damages.”

Other Ohio decisions are to the same effect, Counsel for plaintiff in error, among other authorities, stress the decision of the Circuit Court of this district in the case of Siders v The Gem City Concrete Company, 13 O. C. C. N. S., 481. We are of opinion that this case can be distinguished from the case at bar. A study of this case satisfies us that it really turned upon paragraph 6 of the syllabus, namely:

“A corporation which has purchased its own stock and given a note in payment, and thereafter sells, the stock, is estopped from setting up the defense of want of power to make süch purchase.”

The principle of estoppal is not present in the case at bar as in the above cited case. We do -not think the petition discloses a trust as to the funds in question.

Finding no error in the record which we consider prejudicial to plaintiff in error the judgment of the lower court will be affirmed.

AI UREAL, PJ, concurs, (HORNBECK, J, concurs in judgment.)  