Millard v. Porter

Worden, J.

Suit by Millard against Porter on a note made *504 by tbe latter to tbe former for 880 dollars, dated February 13, 1856, payable twelve months from date. ‘

The defendant answered:

First. That the note was given without any consideration.

Second. That the note was obtained by fraud and without consideration, setting out the alleged circumstances at length.

Third. A counter-claim. Replication in denial.

Trial by jury, verdict and judgment for the defendant, on his counter-claim, for 513 dollars, over a motion made by the plaintiff for a new trial.

The record of the case is voluminous, but the following are believed to be the material facts, as shown by the evidence set out in the 'bill of exceptions.

It appears that prior to the execution by the defendant to the plaintiff of anote for 1,200 dollars, hereinafter mentioned, the 'defendant had made the following subscription to the capital stock of the New Castle and Richmond Railroad Company, viz:

“We, the undersigned, citizens of Gass and Carroll counties, promise to pay the sum of 50 dollars to the New Castle and Richmond Railroad Company for each share of stock by us hereto subscribed, to be paid as ordered by the Board of Directors of said company, and to be expended in the construction of said company’s extension from the town of Logansport to the town of Camden, in Carroll county, as witness our signatures hereto.”

“Adam Porter takes twenty-four shares, provided the company accepts 160 acres of land lying in Washington township, two and one-half miles west of the plank road, in Carroll county, on Paint creek, 1,200 dollars.”

It appears that after the above subscription was made, viz: on the 26th of February, 1853, the company changed her name to that of “ The Cincinnati, Logansport and Chicago Railroad Company.” That afterwards, under the latter name, on *505 the 31st of August, 1854, she consolidated with the Gincinnati and Chicago Railroad Company of Indiana, and the consolidated company assumed the name of the Cincinnati and Chicago Railroad Company. There was a mass of testimony introduced for the purpose of showing that the subscription could not be legally collected by the company in consequence of the above facts; and it was also claimed that the subscription was not collectible because the company had not elected to take the land. The subscription being a proposition merely, and not binding until the company made the election. But the view we take of the case renders it entirely unnecessary to determine whether the defendant was legally bound to pay the subscription or otherwise.

It appears that A. Rogers $ Co. had a contract for work on the road between Logcmsport and Camden, under whom Millard, the plaintiff, was a sub-contractor; that there was due to Millard, 1,600 to 1,700 dollars for work done on that part of the road under his contract; that the agent of the company called on the defendant to get a deed for the land he had subscribed, but he said he believed he would keep the land and pay the money, as he believed the land was worth more than the money. The agent told him the land or the money would be satisfactory. Porter wanted to make some arrangement to pay the men who had orders for work on the road, so that he could pay it in payments. The agent told him that Millard had an order for 1,600 or 1,700 dollars. Afterwards an arrangement was perfected by which Porter gave his note to Millard for 1,200 dollars, payable in six months, dated July 8,1854. Portéis subscription was credited as paid in full on the books of the company, and receipts given to him therefor by the agent of the company, and Millard receipted to the company'for the amount, on his work. Afterwards Porter made payments on the note, and it was finally taken up and. the one in suit given for the balance due. *506 It was for the payments thus made on the 1,200 dollar note that the defendant recovered upon his counter-claim.

Z. Baird and L. B. Simms, for the appellant. Robert Jones, S. A. Huff, and Allen &¡ Schermerhorn, for the appellee.

"We have not examined the various instructions given and refused, as we are of opinion that the judgment should be reversed upon the evidence.

There is no evidence in the record that establishes fraud in the transaction, and we are of opinion that, on the facts shown, the 1,200 dollar note was given, upon a good and sufficient consideration. The acts of the defendant would seem to amount to a waivor of any defence, if he had any, to the subscription, even as between himself and the company, but upon this point we make no decision. The settling and receipting for the claim which the plaintiff held, was a sufficient consideration for the note, even though the subscription could not have been enforced. It is difficult to perceive why the receipting for, and canceling of such indebtedness, is not equivalent so far as furnishing a consideration for the note is concerned, to a payment directly by Millard, of the subscription. Had Millard paid the subscription directly, at the request of Porter, that would have furnished a sufficient consideration, although Porter could not have been liable on the subscription. Vide Wright et at. v. Hughes, Nov. term, 1859.

If the 1,200 dollar note was valid, the one given in lieu of it, and now in suit, is also valid, and the judgment for the defendant on his counter-claim, for what he has paid on it, is not only wrong but he is liable upon the note sued upon.

Per Curiam.

The judgment below is reversed with costs, and the cause remanded for a new trial.