Railsback v. Liberty & Abington Turnpike Co.

2 Ind. 656

Opinion

Smith, J.

Debt, upon the following described note s “ $20. May 2d, 1848.

“ One day after date, I promise to pay to the Liberty and Abington turnpike company twenty dollars, being the first instalment on «-- shares of the stock of said company subscribed by me. David Railsback, Junior.”

The cause was commenced before a justice of the peace and appealed to the Circuit Court, where there was a trial upon the general issue and judgment for the plaintiff.

It appeared in evidence that Railsback subscribed for four shares of stock of the company named in the note} after a location of the road had been made, and before that location was changed by the subsequent adoption of a different route, as in the case of Colvin against the same company, decided at this term

(1). It was decided in that case that such a change of location did not of itself constitute any defence against the recovery of the subscription. ^

J. Perry, for the appellant. J. S. Newman, for the appellee.

It was proved, in this case, that, after the defendant had subscribed for two shares of the stock, an agent of the company solicited him to make an additional subscription, and, with the view of inducing him to do so, pointed out the convenience it would be to him, to have a bridge over a certain stream, near his property, at a point where such a bridge would have been built, if the original location had been adhered to. The defendant accordingly subscribed for two additional shares, the original subscription for two shares being changed to a subscription for four shares, and it was for the first instalment due on these four shares that the note sued upon was given. At the time this subscription was made the agent of the company had no knowledge or information that the location would be changed.

It is contended that this evidence shows that the subscription for two shares of this stock, at least, was made upon condition that a bridge would be built at the point indicated; but if it could be construed to amount to that, it would not be a sufficient defence, as it has been repeatedly decided that parol evidence is not admissible to prove that an agreement in writing to pay money unconditionally, was accompanied with an agreement that it should only be paid conditionally. See Harvey v. Laflin, at this term (2).

The general issue admits that the plaintiff is a corporation, and, therefore, an objection raised by the defendant that the company was not properly organized, is not tenable. That was not a question in issue, and it was unnecessary for the plaintiff to prove its organization. Dunning v. New Albany and Salem R. R. Co., November term, 1850 (3).

Per Curiam.

The judgment is affirmed with 5 per cent. damages and costs.

See ante, p. 5X1.

See ante, p. 477.

See ante, p 437.