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RKO (P) and Jenofsky (D) and Graziano (D1) entered into an agreement to purchase land from P for a price of $70,000. The closing was delayed, and eventually, P sued D to enforce the sale. Jenofsky denied personal liability. At the time of the execution of the agreement, D and D1 were engaged in promoting the formation of a corporation. The sales agreement specified that they were to incorporate. Ds did file the papers prior to closing and D1 claims that this application for the corporation released him from any personal liability for nonperformance of the sales agreement. P got the judgment and D appealed.

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