Breedlove v. Martinsville & Franklin Railroad

Hanna, J. This was a suit by the appellees against the appellant, on a subscription of stock. It was an action of assumpsit, and tried upon the general issue, under the old form of pleading and practice. Judgment for the plaintiffs. Upon, the trial, the plaintiffs proved by their then secretary, that 'Certain books had come into his possession from his predecessor, as books of the company, to-wit, one purporting to contain subscriptions to the capital stock of .said company, and one containing the proceedings thereof. Certain entries in said books, offered in evidence, were admitted over the objection of the defendant. This ruling raises the first question. The subscription-book, as it is called in the record, con [115] tained resolutions of the acting board of directors, fixing the amount of a share, terms, &c. To this, it is averred, the appellant, among others, placed his signature, with the number of shares he desired opposite. These resolutions, &c., are specially set forth in the declaration. The plea is not verified by oath. If any proof was necessary of the identity of the instrument offered in evidence with that declared on, we think that made was sufficient. Proof of the execution of the instrument was not necessary, under the issue. R. S. 1843, p. 711, § 216. As to the admission of the extracts from the record of the proceedings of the board of directors, in reference to the organization of the corporation, no objection thereto has been pointed out, and, even if such evidence was necessary to the issue, still, under the decision in the case of Judah v. The American Live Stock Ins. Co., 4 Ind. R. 333, we do not perceive any error in the rulings of the Court upon that point. Wright v. Selby, 16 B. Mon. 5.—Redf. on Railw. 85.—Ang. and Ames on Corp. §§ 633, 635. Secondly. It is alleged that the Court erred in finding for the plaintiffs upon the evidence given. The evidence is in the record, and this general assignment was sufficient, at the time it was made, to require us to look into that evidence. The terms of payment, as contained in the resolutions subscribed, were, among other things, that “the sum of one dollar be paid in hand on each share, at the time of subscribing, and that ten per cent, on each share be paid every sixty days after the work shall be put under contract by the proper board.” There was evidence that said work was put under contract “as early as July, 1850;” but there was no evidence of notice having been given to the appellant of that fact, nor that any call had been made for the payment of installments, or demand of payment from defendant, although such a demand is specially averred in the declaration. The suit was commenced in February, 1852. G. G. Dunn, for the appellant. W R. Harrison, L. Barbour, and A. G. Porter, for the appellees. Was the evidence upon the part of the plaintiffs sufficient ? It is said by this Court, in the case of Ross v. The Lafayette, &c., Railroad Co., 6 Ind. R. 298, that the question of notice was to be determined upon the contract of subscription sued on; and in that case, the undertaking was to pay “at such times and places as shall hereafter be directed by the directors of said company.” The Court finally concluded that where the agreement by the subscribers was “to pay their subscription at such times as the directors shall fix, without stipulating for notice, we think that suit may be maintained without it.” That decision appears to be cited with approbation in Redfield on Railways, p. 81, and followed in Johnson v. The Crawfordsville, &c., Railroad Co., 11 Ind. R. 284. Per Cu/riam. The judgment is affirmed with 5 per cent, damages and costs.