Downie v. White

By the Court, PAINE, J. This case presents the same question as that decided in Downie vs. Hoover, which must be here decided in the same way. In this case, however, an answer was filed and a trial had. But we do not think the secret understanding which the defendant sets up, to the effect that his subscription was to be merely colorable, nor the evidence offered showing an understanding of a similar kind with other subscribers, constitutes any defence whatever. Such agreements are an obvious fraud upon the other subscribers; and the written subscrip [179] tion should be enforced, without regard to them. Brown vs. Appleby, 1 Sandf, 170; Redfield on Railways, § 48 and note 1; Blodgett vs. Morrill, 20 Vt., 509; White Mountain R. R. vs. Eastman, 34 N. H., 124. The third paragraph of the defendant’s answer is liable also to the objection, that it sets up a contemporaneous parol understanding inconsistent with the terms of the written agreement. The judgment must be reversed with costs, and the cause remanded for a new trial.