Vicksburg, Shreveport & Texas Railroad v. Hamilton

Land, J. The defendant was sued for the sum of $281 25, tho'amount of certain installments due on his subscription to the stock of the railroad company. He confessed, in his answer to the petition, the plaintiff's demand, and called in warranty Sacie P. Gee, and prayed for judgment over against him for tho amount admitted to be due the plaintiff. The ground of the call in warranty is, the alleged promise of Gee, who was acting as tho agent of the company, to pay out the stocks, and take a transfer of the same to himself, at the time the subscription to the stock of the company was made by the defendant. There was judgment in favor of plaintiff, and" judgment in favor of defendant over against the warrantor, who has alone appealed. The defendant has filed a motion to dismiss the appeal, on the following grounds, to-wit: 1st. Because the amount in dispute does not exceed three hundred dollars. 2d. Because the.appeal was granted 'befóte the judgment had been signed in the lower court. As to the first ground, it appears that the defendant subscribed to the stock of the company, six hundred and twenty-five dollars, in shares of twenty-five dollars each, to be paid on calls to be made by tho president and directors of the company; and that this suit was instituted for tho recovery of less than one-hall', of the amount of the defendant’s subscription to the stock of the company. The defendant’s call in warranty puts at issue Ms right to recover of Gee the whole amount of the stock subscription, that is to say, the sum of six hundred and twenty-five dollars, notwithstanding the demand in warranty is only for a part of it, to-wit, the sum of $281 25, the amount claimed by the plaintiffs. The controversy between the defendant and warrantor was thus made to cover an amount exceeding three hundred dollars, and was thereby brought within the jurisdiction of this court. See Williams v. Vance, 2 An. 909. As to the second ground for the dismissal of the appeal, it is only necessary to remark that, in the country, judgments are only signed at the end of the term, and that orders of appeal granted between the time of the rendition and signing by the District Judge, are not premature. McGregor v. Barker, 12 An. 289. On the merits, we are of the opinion, that the evidence is insufficient to establish a valid contract between the defendant and Gee, which could have been enforced by an action at law. [522] There is no proof that the defendant accepted the offer of Gee, and acted on the faith of it, at the time of his subscription to the stock of the company; nor is there proof of Gee’s acknowledgment of his legal liability to pay the amount of stock subscribed by the defendant, at any time subsequent to the subscription. As was said in the case of the plaintiffs against Terry, 13 An. 419, “ it should appear that the offer utas not only seriously made, hut accepted." The judgment as between plaintiffs and defendant, we do not consider before us, on this appeal. It is, therefore, ordered, adjudged and decreed, that the judgment as between the defendant and the warrantor, Sack P. Gee, be reversed; and it is now decreed, that there be judgment in favor of the warrantor, with costs in both courts.