Cincinnati & Fort Wayne Railroad v. McClelland

Indiana Supreme Court

Cincinnati & Fort Wayne Railroad v. McClelland

15 Ind. 225, 1860 Ind. LEXIS 371

DecidedDecember 7, 1860

StatusPublished

This text of 15 Ind. 225 (Cincinnati & Fort Wayne Railroad v. McClelland) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cincinnati & Fort Wayne Railroad v. McClelland, 15 Ind. 225, 1860 Ind. LEXIS 371 (Ind. 1860).

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Opinion

Per Curiam.

The railroad company sued McClelland upon a subscription of stock to the articles of association of the company, alleging in her complaint, that he was one of the original subscribers, having subscribed eight shares, $100. The instrument of subscription to which, as alleged, he signed his name, stipulates that the amount subscribed shall be payable to the company, at such times, and in such sums, as its board of directors may, from time to time, order and require. It is averred that the defendant, although ordered, &c., by the directors to pay ten per cent, per month, has refused, &c.

Defendant answered by sixteen paragraphs. To all of which, save the 1st, 12th, and 13th, demurrers were sustained.

The 1st paragraph alleges that “the plaintiff is not a corporation.” The 12th, “That defendant did not subscribe and promise to pay the sums in the complaint mentioned, in manner and form, &e.” To this paragraph, the defendant appended an affidavit, alleging it to be true, &c. And the [226]*22613th is a general denial. The issues of fact were submitted to a jury, who found .for the defendant, and the plaintiff moved for a nevy trial. 1. Because the verdict is not sustained by the evidence, and is contrary to law. 2. For mis- . conduct in the prevailing party.

W. A. Pede, for appellant. B. McClelland, for appellee.

The second cause is not available, for the reason that no such . , , ,. ,, misconduct is shown m the record. And, m reference to the first cause, we have examined the evidence, and are of opinion that it is Hot inconsistent with the verdict. As no errors are assigned, except those relied on in the motion for a new trial, we are not inclined to disturb the conclusions of the jury.

The judgment is affirmed, with costs.

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Per Curiam.

The railroad company sued McClelland upon a subscription of stock to the articles of association of the company, alleging in her complaint, that he was one of the original subscribers, having subscribed eight shares, $100. The instrument of subscription to which, as alleged, he signed his name, stipulates that the amount subscribed shall be payable to the company, at such times, and in such sums, as its board of directors may, from time to time, order and require. It is averred that the defendant, although ordered, &c., by the directors to pay ten per cent, per month, has refused, &c.

Defendant answered by sixteen paragraphs. To all of which, save the 1st, 12th, and 13th, demurrers were sustained.

The 1st paragraph alleges that “the plaintiff is not a corporation.” The 12th, “That defendant did not subscribe and promise to pay the sums in the complaint mentioned, in manner and form, &e.” To this paragraph, the defendant appended an affidavit, alleging it to be true, &c. And the [226]*22613th is a general denial. The issues of fact were submitted to a jury, who found .for the defendant, and the plaintiff moved for a nevy trial. 1. Because the verdict is not sustained by the evidence, and is contrary to law. 2. For mis- . conduct in the prevailing party.

W. A. Pede, for appellant. B. McClelland, for appellee.

The second cause is not available, for the reason that no such . , , ,. ,, misconduct is shown m the record. And, m reference to the first cause, we have examined the evidence, and are of opinion that it is Hot inconsistent with the verdict. As no errors are assigned, except those relied on in the motion for a new trial, we are not inclined to disturb the conclusions of the jury.

The judgment is affirmed, with costs.

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Bluebook (online)

15 Ind. 225, 1860 Ind. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cincinnati-fort-wayne-railroad-v-mcclelland-ind-1860.