opinion: WILSON v. HARBURNEY OIL CO. et al.
  No. 1470.
  Circuit Court of Appeals, Tenth Circuit.
  March 24, 1937.
  Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris,George B. Powers, Carl T. Smith, and C. H. Morris, all of Wichita, Kan., for appellant.
  L. P. Brooks, of Wichita, Kan., for ap-pellees.
  Before PHILLIPS, and BRATTON, Circuit Judges, and JOHNSON, District Judge.
  BRATTON, Circuit Judge.
  H. J. Wilson complains because his claim submitted in a proceeding in bankruptcy was disallowed.
  The Harburney Oil Company filed a voluntary petition under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). It was approved and a trustee appointed. These facts were set forth in the claim with its attached exhibits: On January 18, 1934, claimant secured a mineral lease from Sophia Wendel and others — called the Wendel heirs — covering the east half of section 32, in township 19 south of range 10 west, in Rice county, Kan. By a written contract which accompanied the lease, he was required to begin drilling within a fixed time and to prosecute it diligently to the siliceous sand unless oil or gas in commercial quantities was found at a lesser depth. The lessors were to be paid $6,000 from one-fourth of the claimant’s share of the first oil produced. Claimant and four others — Burton, Harris, Harvey, and Kors — thereafter entered into an undated contract which recited that they were jointly interested in the leasehold estate in the west half of the northeast quarter of section 32, each owning an undivided one-fifth interest therein. They bound themselves to cause a corporation to be organized under the laws of Kansas for the purpose of owning the lease and conducting developments. Each was to assign his interest in the lease to the corporation and to receive therefor a certificate or certificates equal to 20 per cent, of the total number of shares of the capital stock. It was provided that the corporation would begin drilling on or before July 20, 1934, and continue with diligence to the siliceous lime unless oil or gas in commercial quantities was found at a lesser depth; that it would comply in all respects with the Wendel contract, a copy of which was attached; that it would pay claimant $3,000 in cash and a further sum of $3,000 on or before the time the well reached a depth of 2,500 feet; and that it would pay a further sum of $10,000 from one-fourth of the first oil produced, $6,000 to the Wendel heirs and $4,000 to claimant. Claimant and his four associates, each owning an undivided one-fifth interest in oil and gas leases covering 400 acres of land, entered into mutually satisfactory adjustments and agreements in which claimant released and surrendered his interest in 320 acres of such leasehold estate, including that which was subsequently transferred to the corporation, and the other four released and transferred to him their interests in the remaining 80 acres. It was mutually understood in connection with such .transfers that the obligation of the corporation and of the four associates to make the payments required by the terms of the original contract which claimant and his associates entered into should be unaffected. The corporation was “formed and the lease covering the west half of the northeast quarter of section 32 was transferred to it. The transfer was subject to all of. the obligations and liabilities contained in the contract between claimant and his four associates; and the corporation had knowledge of such facts at the time the transfer was made to it. The first $3,000 was paid to claimant before the corporation was formed;' but subsequent to its formation and in recognition of the obligation, the corporation paid or caused to be paid $100 to claimant on the $3,000 which was due when the well reached a depth of 2,500 feet; and from time to time it paid $10,000 out of oil produced on the leased premises in accordance with the terms of such contract. Harvey, as promoter and president of the corporation, agreed and promised repeatedly to pay claimant the balance of $2,900 on the $3,000 obligation, but such payment was never made and the claim was for that amount.
  The corporation and the trustee joined in an answer which challenged the sufficiency of the facts to constitute a valid claim, and further that the asserted claim was within the statute of frauds. The court entered an order disallowing the claim because the facts alleged were not sufficient to state a cause of action. Claimant appealed.
  The first question which the parties discuss in their briefs is whether the corporation was bound by the contract which the preorganization promoters executed. The challenge to the claim was in effect a demurrer and,, therefore, all matters well pleaded were admitted. Fairly construed, the claim alleged that claimant and his four associates were preorganizers of the corporation; that their contract providing that the lease should be assigned to the corporation, was for the benefit of the corporation; that the lease was transferred subject to all of the obligations and liabilities contained in the agreement; that the corporation developed the premises; that in recognition of its obligation under the contract, the corporation paid $10,000 out of oil produced, of which $6,000 went to the Wendel heirs and $4,000 to claimant; and that it has paid or caused to be paid $100 on the item of $3,000. It is the balance of that item for which the claim is made. A corporation may expressly or impliedly assume the obligations of a contract which its promoters made for its benefit prior to the date of its organization; and any unequivocal act of recognition will suffice for that purpose. Here the corporation accepted the lease with knowledge that it was assigned subject to the obligations and liabilities contained in the agreement, developed the premises, and disbursed money in discharge of provisions in the contract. That clearly constituted recognition and rendered the corporation liable for its obligations fixed by the contract. Boatright v. Steinite Radio Corporation (C.C.A.) 46 F.(2d) 385; Kirkup v. Anaconda Amusement Co., 59 Mont. 469, 197 P. 1005, 17 A.L.R. 441 and notes.
  It is urged that the promoters did not undertake in their contract to bind the corporation to make such payments; that, instead, they provided that the corporation would contract and agree to make them. That is a strained and untenable construction of the instrument. Its plain purport and effect was to fix the respective sums, specify the time and manner of their payment, and provide that the corporation should make them. A new and independent contract in which the corporation should bind itself to make them was not contemplated. It was provided that the parties should cause the corporation to adopt and ratify the obligations and benefits of the contract by proper acts of its directors and stockholders; but acceptance of the lease with knowledge of the facts, development of the premises and disbursements of money under the terms of the contract constituted a binding ratification.
  The second question to which the parties address themselves relates to the applicability of the statute of frauds in Kansas, which provides in familiar language that no action shall be brought to charge a party upon any special promise to answer for the debt, default or miscarriage of another, unless some agreement or memorandum thereof is in writing and signed by the party to be charged. Section 33 — 106, Revised Statutes Kan. 1923, The statute is confined to a promise of one person to answer for the debt of another. Here the sums fixed in the contract represented a part of the consideration for the lease. The corporation was to acquire the lease, own the estate, develop it, and enjoy the profits after making such payments. It was the real party in interest, the actual beneficiary. Although the obligation was in form that of the promoters or preorganizers, it was in fact that of the corporation. The corporation had an immediate, personal, and pecuniary interest to be subserved in the transaction. For that reason the statute has no application. Emerson v. Slater, 22 How, 28, 43, 16 L„ Ed. 360; Davis v. Patrick, 141 U.S. 479, 12 S.Ct. 58, 35 L.Ed. 826; Gotham Nat. Bank v. Sharood (C.C.A.) 23 F.(2d) 567; Charles Broadway Rouss, Inc. v. Cooper (C.C.A.) 69 F.(2d) 671; Wright v. Farmers’ Nat. Grain Corporation (C.C.A.) 74 F.(2d) 425; Schufeldt v. Smith, 139 Mo. 367, 40 S.W. 887.
  The order is reversed, and the cause is remanded with direction to hear the claim on its merits.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.