| Ind. | Jun 4, 1861
Suit by the University against Denny, upon a stock subscription, by which he subscribed for one share of stock, payable in lumber. Demurrer to the complaint overruled, and exception taken. Issue; trial by the Court; finding and judgment for the plaintiff, a new trial being refused.
The objections to the complaint are, that it does not disclose the date of Denny's subscription, and also that the corporation had no power to take any thing but a cash subscription.
The subscription set out does not contain any date, nor does the complaint show when it was made. But where time is not material, as it is not in this case, it is matter of form only, and the defect is not reached by demurrer. We are of opinion that the charter of the plaintiff sufficiently authorizes the subscription. -Local Laws, 1849-50, p. 524.
. A new trial was asked for on several grounds, such of which as are relied upon in the brief of counsel will be noticed.
The record shows that the plaintiff offered in evidence the subscription sued upon, and some oral testimony; and that the defendant .“excepted to the evidence introduced, or so much thereof as .disclosed the conversations had by said witnesses with Benjamin Robins, and the statement of Robins to each of the witnesses in the absence of the defendant, and to the introduction of the writing sued on, severally,” which objection was overruled, &c. It does not appear that any ground of objection was stated, or pointed out to the.Court; and it has been held in numerous instances by this Court, that
The defendant offered to prove by a witness, that he did not s^>n name' to writing sued on, but only stated to John CP Kane, (the agent of the plaintiff, by whom the subgcription was procured,) that he could put his name down on a piece of paper for one share of the capital stock, payable in lumber. That OKane stated that he had no authority to receive such subscription, but that he could take the defendant’s name for one share, payable in lumber, and submit it to the trustees of the plaintiff. This testimony was rejected, and the defendant excepted. The testimony thus offered only tended to negative the execution, by the defendant, of the subscription sued on. There being no plea denying such execution under oath, the evidence was inadmissible and properly rejected. Unthank v. The Henry County Turnpike Co., 6 Ind. 125" court="Ind." date_filed="1855-05-28" href="https://app.midpage.ai/document/unthank-v-henry-county-turnpike-co-7032792?utm_source=webapp" opinion_id="7032792">6 Ind. 125. In another part of the bill of exceptions it appears that the plaintiff, in rebutting, was permitted to give in evidence conversations between one Viokers and Robins, and Hamrick and Robins, over the objections of the defendant, made on the ground that their conversations were not with the defendant, and were irrelevant. The conversations we regard as unimportant,; and without stopping to inquire whether their admission was strictly correct, we think they may be stricken out and still leave ample evidence to support the finding.
The only other point made by the appellant is as to the sufficiency of the evidence to sustain the finding. The deficiency in the evidence is claimed to be a failure to prove that Denny had not paid the interest due on his stock, and had not secured the payment of two thirds thereof. If these facts would be a valid defense against the immediate collection of any portion of the subscription, by the provisions of the charter of the plaintiff, the onus of proving them, we think, was upon the defendant.
The judgment is affirmed, with costs and 5 per cent, damages.