Dill v. Wabash Valley Railroad

Caton, C. J. The demurrer to this bill was properly sustained. It does not show that there was any condition attached to or embodied in the contract of subscription that the money should be expended in Edgar county. Were there any such condition in the subscription which the defendant was about to violate, it should have been clearly and positively stated in the bill. In the absence of such averment, we cannot intend it, as the bill must be most strongly taken against the complainants: at least, it must be presumed they have stated their whole case, and it must be required of them to set forth enough to entitle them to the relief asked. If the supposed condition was not expressed in the contract of subscription, but rested in a verbal understanding or agreement at the time the subscription was made, it can constitute no defense to the liability on the contract, either in law or equity. That writing, like all other written contracts, must be held to embrace the whole contract, and cannot be varied by parol. If there were any of the parties who did not execute the contract themselves, or authorize others to execute it for them, they should have made that defense at law under the plea of non est factum. But even if they could now interpose that defense as a ground for an injunction, to restrain the collection of the judgments, it is not shown which of the complainants did not authorize the execution of the unconditional subscription. The insolvency of the company can constitute no ground for restraining the collection of these judgments. Indeed it shows the more urgent reason why they should be collected. It is due to the creditors of the company that it should make available all its resources, and faithfully apply the proceeds to the payment of its debts. The complainants cannot, now that the enterprise has proved a losing concern, separate themselves from the other stockholders, who have advanced their money towards its execution, when, had it proved successful and profitable, they would perhaps, have been among the first to step forward to claim their dividends and enjoy its benefits. We cannot foster a disposition, which is now too prevalent, to evade responsibilities when a loss is anticipated by parties, who would be entitled to benefits had success crowned their efforts. Those who would share the profits, must endure the losses. The bill shows no ground for the injunction, and the decree must be affirmed. Decree affirmed.