Jones v. Milton & Rushville Turnpike Co.

7 Ind. 547

Opinion

Perkins, J.

Suit to recover instalments of stock subscribed to a turnpike company. The making of the subscription was denied under oath.

We think the evidence adduced on the trial authorized the jury to find that the subscription had been made. A subscription made by an agent, though beyond his given powers, if ratified by his principal, -will bind the latter, -^11 a^empl was made to set up parol conditions upon which the stock was subscribed. This was not allowable, except in a case of fraud. Ferris v. Ludlow, ante, p. 517.— Railsback v. The Liberty and Abington Turnpike Company, 2 Lid. R. 656.

It is objected that notice of the meeting for the election of directors was not proved; but the objection is, in this case, unimportant, as, from the evidence, it appears that the subscribers here sued were present by their proxy and voted at the election. Judah v. The American, &c., Company, 4 Ind. R. 333.

This suit was commenced on the 20th of December, 1854, against Jones, Shishler and Swafford, partners, upon a joint subscription, in the firm name, of 1,200 dollars of stock. On the trial of the cause, a copy of the articles of association of the company, from the recorder’s office of the proper county, was given in evidence, which showed a separate subscription of 400 jlollars by each of said partners; “but there was parol evidence tending to show that the subscription of the defendants to the copy of the articles recorded in June, 1854, was put down separately to said copy so recorded, without authority of the company, under a private arrangement with the defendants and others; and it was established that the original subscription was in the firm name.”

The contract of the defendants with the company was joint, the articles of association were recorded by order of the company in time, and the variance in the form of the ■subscription of the defendants, appearing in the copy as recorded, having been produced by their own wrong, without the authority of the company, they can not avail themselves of it to defeat this suit.

The decision of all the points made by counsel is involved in what we have already said, so far as they are material in this case, and need not be separately noticed.

J. B. Julian and J. Perry, for the appellants. J S. Neioman, J. P. Siddall and O. P. Morton, for the appellees.

Per Curiam.

The judgment is affirmed, with 2 per cent. damages and costs.