19 Ind. 213 | Ind. | 1862
This was an action by Parker against Thomas, upon promissory notes executed by tbe latter to tbe Fort Wayne and Southern Railroad Company, and by the company indorsed to tbe plaintiff. The notes bear date December 29, 1853.
The defendant answered in four paragraphs, in substance as -follows:
1. That, on the — day of August, 1853, he subscribed for sixteen shares of the capital stock of the railroad company, on the following conditional subscription, viz.: “We, the undersigned, promise to pay to the president and directors •of the Fort Wayne and Southern Railroad Company twenty-five dollars for each share of stock set opposite our names, as follows, to-wit: four per cent, in sixty days, and the balance in six semi-annual payments, provided that said road is located within one-fourth of a mile of the plat of the town of Westport, in Decatur county, Indiana; and when said road is so located, we authorize the agents of the company to transfer our names and stock into the regular stock book of the company;” that afterward, on the 9th of
2. That the defendant subscribed for stock and gave the
8. That at and prior to the time of the subscription, the defendant was the owner of a large amount of real and personal, property, at and near the town of Westport, and engaged in the mercantile business at said town, which property would be greatly enhanced in value, and which business would be greatly improved and promoted by the construction of a railroad through or near said town; that about the time of the subscription the company caused her agents to go over said county of Decatur, among the people, in different directions, which agents falsely and fraudulently represented that the railroad passing through, etc., near said town of Westport, would be speedily constructed, if the
4. That the defendant was the owner of property, and engaged in the mercantile business, as in the last paragraph set forth; that, in order to aid in the construction of the road which was to run through or near said town of West-port, he made the -conditional subscription set out in the first paragraph; that afterward, on the 1st of December, 1853, the company, by her agents, falsely and fraudulently represented that she was amply able to go on and locate and construct said road, and complete the same in three years, and that she was about to, and would forthwith proceed to construct the same through the county of Decatur, and within one-fourth of a mile of Westport, according to the terms of the subscription, and that to enable her to do so, it was important and necessary, and that it would be better that said defendant should give his notes for the amount of his subscription, that the same might be applied to the construction of the road through said county; and the defendant, confiding in these representations, and believing them to he true, and being ignorant of the facts, executed the notes described in the complaint; that the company has not yet located or constructed her road within one-fourth of a mile of the plat of the town of Westport, or at any other point near said town, and, at the time, was not about to proceed, etc.; that said company was, at said time, entirely unable to
A demurrer was overruled to each paragraph of this answer, and the plaintiff excepted. Issues were formed and tried, resulting in a verdict and judgment for the defendant.
Were the several paragraphs of the answer good? This is the question that first claims our attention.
The allegation in the first paragraph, that the company falsely represented that she had a right to construct a road from Muncie to Jeffersonville, adds nothing to the other facts therein stated. That representation was upon matter of law. Whether the company had such right depended upon her charter, which was a public law, and of which the defendant was bound to take notice.
The other allegations in the several paragraphs, of representations in respect to the ability of the company to construct the road, and the time within which it would be done, etc., are not sufficient to avoid the contract. The case of Bish v. Bradford, 17 Ind. 490, is decisive upon these questions.
The first paragraph alleges that the company had, by resolution, fixed upon Columbus, in Bartholomew county, as the
The'third alleges that the company had not located or constructed the road within a fourth, of a mile of Westport, etc.
The same allegation is to be found in the fourth. Outside of these allegations, none of the paragraphs set up matter which is a valid defense. ,
The second paragraph is clearly bad, for the double reason that the representations are not such as to bar the action, and it is not alleged that the defendant believed them, or relied upon them, or that his subscription was, in any degree, induced by them.
Returning now to the first, third, and fourth paragraphs, the question arises: Whether they were good, in consequence of the allegations denying the location of the road as provided for by the terms of the subscription ? The original subscription was upon the condition that the road should be located within one-fourth of a mile of the plat of the town of Westport. This, we think, was a condition precedent. Taylor v. Fletcher, 15 Ind. 81. Had the suit been upon the subscription, it is clear enough, on general principles, that no recovery could be had without showing that the road had been located as provided for in the subscription. Did the giving of the notes waive the condition? The notes were six in number, and unconditional, each for the amount of the semi-annual installments, and coming due semi-annually, corresponding with the terms of the subscription. In this respect, the case differs materially from that of the Evansville, etc. Railroad Company v. Dunn, 17 Ind. 603. We are not prepared to say that the giving of the notes waived the condition. No doubt, if it was the intention of the parties to waive the condition, effect should be given to such intention j but the facts, as shown, do not, of themselves, amount to such waiver. It seems to follow that-the paragraphs, except the second, were good.
If the evidence is not to be deemed in the record, and counsel for the appellee claim that it is not, then the judgment must be reversed for the error in respect to the second paragraph, for, in that case, we can not say that the verdict for the defendant was not based upon the defense set up in that paragraph; we can not say that the merits of the cause have been fairly tried and determined. Rose v. Wallace, 11 Ind. 112. A bill of exceptions sets out evidence, but the thirtieth rule may not be strictly complied with. If we take it that the evidence is all in the record, it shows that the road was located as provided for in the subscription. That it was not so located, we have seen, was the only valid defense set up. This defense, the proof in the record shows, did not exist. If the evidence be deemed in the record, a motion for a new trial, which was properly made, should have been sustained. So that, whether the evidence be or be not in the record, the judgment must be reversed.
A cross error is assigned. The plaintiff, for a reply to the alleged location of the southern terminus of the road at Columbus, etc., alleged, that afterward, by a resolution of the board of directors, the company rescinded the. former order, and ordered that the road be located on a line passing through Greensburgh, Westport, and other points, termina
The judgment below is reversed, with costs, and the cause remanded for further proceedings.
Note.—There were contained, by agreement, in the same record in which, the above entitled cause is found, twelve other causes, all of which are so nearly alike, in every essential particular, as to render the foregoing decision applicable to each, and. the same judgment was therefore entered in each.