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Maimon v. Telman

OCTOBER 18, 1967.

ARTHUR C. MAIMON, PLAINTIFF-APPELLANT,

v.

EDWARD M. TELMAN AND ADVANCE LEASING CO., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. Judgment affirmed.

GOLDENHERSH, J.

Rehearing denied November 16, 1967.

Plaintiff appeals from the judgment of the Circuit Court of Cook County, entered in plaintiff's suit for declaratory judgment and other relief.

In Count I of his amended complaint, plaintiff alleges the execution of a written agreement and prays for a declaratory judgment holding the agreement to be void by reason of its failure to provide a termination date, or in the alternative that it be declared terminable at will, and that it was terminated upon plaintiff's demand.

The agreement is captioned "Agreement for Joint Venture," and in the preamble recites that it was made and entered into on February 18, 1959, that defendant has been instrumental in organizing an Illinois corporation hereafter referred to as Advance, has subscribed for 40 shares of its capital common stock with a par value of $100 per share, for which he agreed to pay $7,500, plaintiff is desirous of acquiring an undivided one-half interest in and to said shares of stock, is willing to pay defendant the sum of $3,750 for the half interest, the parties deem it advisable that the interest of plaintiff not appear upon the books or records of the corporation or upon any stock certificates "heretofore issued" to defendant, and states further ". . . they therefore hereby elect to enter into a joint venture agreement with respect to the acquisition of said shares, the ownership thereof, the division of dividends which may hereafter be paid upon said shares, and the distribution of the proceeds in the event that said shares are hereafter sold, redeemed or otherwise disposed of";

The agreement contains the following provisions:

"1. The parties hereby form a joint venture for the acquisition and ownership of forty (40) shares of the common capital stock of Advance Auto Leasing Company, an Illinois corporation, having a par value of $100.00 per share. It is further agreed that the subscription price for said shares of stock is Seven Thousand Five Hundred Dollars ($7,500.00) and each of the parties hereto agrees to contribute the sum of Three Thousand Seven Hundred and Fifty Dollars ($3,750.00) in payment of said subscription price.

"2. All dividends, whether in stock or in cash paid upon the aforesaid shares of stock shall be divided equally between the joint venturers. In the event that Telman shall exercise his preemptive rights to acquire any additional shares of stock from said corporation, payment therefor shall be made jointly by the parties hereto and such additional shares of stock, if any, shall be held subject to the terms hereof. In the event of the sale of said shares, the parties hereto shall share equally in the proceeds derived therefrom. It is further agreed that Telman's ownership rights in and to said shares of stock are subject to the terms, covenants and conditions of a certain stock purchase agreement entered into this date by and between Telman and all of the shareholders of said corporation and Maimon hereby acknowledges that a true copy of said stock purchase agreement has been exhibited to him and he does further acknowledge that the rights of the parties hereto are subordinated to the terms of that agreement.

"3. In the event of the death of either of the parties hereto, the respective estates of the joint venturers shall succeed to the rights, privileges and conditions herein contained.

"4. The terms of this joint venture agreement shall not extend to or encompass any salaries or bonuses which Telman may hereafter receive as an employee of said corporation.

"5. This agreement shall not be deemed, held or construed as creating a partnership between the parties hereto and shall be held to apply solely to the purchase, ownership and disposition of the shares of stock hereinabove referred to and shall not include any other transactions heretofore or that may hereafter be entered into by either of the parties and shall not include any business or businesses that either of said parties are now in or that either of said parties may hereafter enter into.

"6. Telman hereby covenants and agrees that notwithstanding the fact that the said shares of stock shall be issued solely in his name, he shall hold said shares and all rights or interests emanating therefrom in trust for the benefit of the parties hereto.

"7. This agreement shall be binding upon the parties hereto, their heirs, executors, administrators and assigns."

Count II alleges repeated demands for an "accounting of the financial status" of Advance, and defendant's refusal to furnish an accounting, alleges plaintiff has no adequate remedy at law, and prays a mandatory injunction directing defendant to deliver a ...


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