Fort Wayne & Bluffton Turnpike Co. v. Deam

Hanna, J.

This was a suit to recover 100 dollars alleged to be due on subscription to the capital stock of said company.

The defendant answered—

1. That there was no such corporation.

2. That the subscription was obtained by fraud.

3. Failure of consideration.

4. That he is not indebted, &c.

5. That plaintiffs sold and assigned their interest in said subscription to, &c., and have therefore no interest, &c.

To this the plaintiffs replied—

1. That there was such corporation, &c.

2. As to the 2d, 3d, 4th and 5th paragraphs of the answer, special denials.

Trial; verdict and judgment for the defendant.

We do not think the evidence sustains thé verdict in this case. It was shown that the defendant, among others, had, *564 on the 2d day of July, 1852, subscribed for four shares of stock, of 25 dollars each, two payable in cash and two in timber and hauling, “ in such manner, and at such times and proportions, as the president and directors of the Fort Wayne and Bluffton Turnpike Company may direct.” It was further proved that on the 3d of August, 1852, at a meeting of the president and directors of said company, of whom the defendant was one, and present, it was resolved “ that John Studebaker be authorized to collect the subscriptions,” &c.; and it was further resolved that “the treasurer give the necessary notice to the subscribers, &c., that the whole of such subscription will be required to be paid at the end of 60 days.” And it was then shown that the notice was published in the Fort Wayne Sentinel, printed in Fort Wayne, in Allen county, Indiana, &c.

Two witnesses were introduced by the defendant — Stu debaker and Prillman. Their evidence is set forth in narrative form, but from it we infer that the attempt was made to sustain by them the answer of fraud, &c. We do not think it even tends to do so. It shows great anxiety upon the part of certain citizens of Bluffton to procure the extension of the road to that town; the appointment of one of the witnesses to solicit stock for that purpose; his statement of his opinion that the road could be completed before “ high water in the fall;” and the fact that it was not so completed. As no particular acts of fraud or false representations are pointed out, we suppose, from the testimony, that' this is the point relied on. The evidence is not sufficient; for it shows that although at a meeting of the board and a portion of the citizens interested as stock subscribers, the probability of completing it was fully talked over, yet the board did not agree to finish it in three months, or any specified time. Therefore, representations made by a person soliciting stock could not be, as to them, fraudulent, especially when that solicitor testifies that, he “ was not acting as the agent of, or by or under the direction and instruction of, said company, but was acting by the direction of the citizens of Bluffton,” &c.

But it is insisted that there was no evidence by the plain *565 tiff, of the existence of the corporation at the time the suit was instituted.

C. Case and W. H. Withers, for the appellants. J. P. Greer and W. March, for the appellee.

By contracting with the plaintiff as a corporation, the defendant is estopped from denying its existence as such at the time of the contract. 8 Ind. E. 392. — 7 id. 416. — 4 id. 333.

If by this paragraph of the answer the defendant intended to set up that the corporation had ceased to exist after the contract was made, it should have averred the facts showing how the corporate powers come to a termination. 2 Blaekf. 367. — 5 Ind. E. 77. — 8 id. 393. It would, therefore, have been bad if demurred to; and if viewed as an affirmative answer of that character, as the defendant insists it should be, then the burden of proof was on the defendant to sustain it, after the issue of fact joined upon it.

Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.