63 Pa. 381 | Pa. | 1870
The opinion of the court was delivered, January 3d 1870, by
In Crossman v. Penrose Ferry Bridge Co., 2 Casey 69, it was said by Justice Knox that a subscription to capital stock, induced by the fraudulent representations or statements of an agent appointed to obtain subscriptions, may be avoided by the subscriber. And in Coil v. Pittsburg Female College, 4 Wright 439, it was held that representations by agents of the college, that enough had been and would be subscribed, before the subscriptions for scholarships would be collected, to pay off the entire indebtedness of the college, and make the scholarships worth the notes given for them, are to be treated as expressions of opinion only, no fraud being alleged; from which it might be inferred that fraud being alleged, the falsehood of the representations would invalidate the subscription. On the other hand, it was held in Bank of U. S. v. Dunn, 6 Peters 51; Bank of Metropolis v. Jones, 8 Peters 12, and Stewart v. Huntingdon Bank, 11 S. & R. 267, that the declarations and assurances of the officers of a bank, that an endorser or other party would incur no responsibility by his endorsement or signature, are unauthorized and not binding on the bank without authority from the directors. In Hackney v. Allegheny County Mutual Ins. Co., 4 Barr 185, it was decided that the false and unauthorized representations of an agent to receive applications for insurance and the premium for a mutual insurance company, whereby the assured became a member of the company, are not admissible as a defence to an action on the premium note; nor are the similar representations of the president to the agent at the time of his appointment. The representations there were that the company was not taking risks in Pittsburg or other large cities. As it turned out, the company was broken up by its numerous risks taken in Pittsburg before the great fire of 1845.
But the second offer comes up more nearly to the line, and depends on the meaning to be attributed to the language of the offer. The offer was to show by a previous subscriber, for six shares, that he was induced by the president to change his subscription to twenty-six shares, on receiving from the president a release in writing from the payment of twenty shares, for the pur
We think there was error also in taking from the jury the decision of the fact whether the meeting of October 18th was in 1865 or 1866. The entry bore date in 1866, and if this was a mistake, it was for the jury to find it.
We are of opinion, also, that the interest of five per cent, a month on the subscription payable after a failure for thirty days to pay the calls is a penalty, and not merely interest, in the ordinary sense of the term. It is called interest in the act, but its obvious purpose, and the amount (being at the rate of sixty per cent, per annum) is for the enforcement of payment by way of a penalty. The act says as much as that the company may enforce payment either by forfeiture of the stock itself, or by a penalty of five per cent, a month for delay.
Judgment reversed, and a venire de novo awarded.