Upon the trial below evidence for plaintiff tended to show that the number of shares to be subscribed, upon which defendant’s subscription was conditioned, had not been subscribed either when the corporation was organized in 1931, or on the date of the institution of this action. And on argument here counsel for plaintiff states that it is not contended that defendant, when in 1931 he made six payments on his subscription, had knowledge of the fact that the total subscription for stock was less than the specified number of shares.

In the light of these facts, the judgment below is

Affirmed.