McClasky v. Grand Rapids & Indiana Railroad

16 Ind. 96, 1861 Ind. LEXIS 26

Opinion

Per Curiam.

The complaint in this case charges that .the appellant, who was the defendant, on February 25, 1854, subscribed $500, it being twenty shares, of the capital stock of said railroad company, payable in such manner and proportion, and at such times, as the president and • directors of the company might direct; “ that defendant reserved the privilege of designating the kind of property in which he would pay the amount subscribed, and though often requested, &c., has failed to make such designation or pay said sum; to the plaintiff’s damages, $600, for which she demands judgment,” &c.

Defendant’s answer contains nine paragraphs. To the first, second, third, fourth, fifth and sixth, demurrers were sustained. The other defenses led to issues of fact. There was a verdict for the plaintiff, upon which the Court, over a motion for a new trial, rendered judgment.

The complaint is alleged to be defective because it makes no reference to any written contract of subscription; nor does it aver that any assessment or call had been made by the directors. These objections seem to be well taken; and the defects in the complaint thus pointed out, being material, are no doubt available upon the demurrers to the answer. Price v. The Grand Rapids, &c. Railroad Co., 13 Ind. 58; Ross v. The Lafayette, &c. Railroad Co., 6 id. 297; Gebhart v. The Junction Railroad Company, 12 id. 484; Bolster v. Catterlino, 1 id. 117. Upon these decisions the judgment must be reversed.

A. Ellison, for the appellant.

The judgment is reversed, with costs. Cause remanded, &e.