Vawter v. Ohio & Mississippi Railroad

14 Ind. 174

Opinion

Hanna, J.

Suit to recover installments on subscription to capital stock of the company.

The pleadings are similar to those in the case of Andrews v. the same appellees, at this term

Footnotes

•

(1).

Numerous points are presented for our consideration .by the brief of the appellant. Such points, from the fourth to the fourteenth inclusive, have been considered in the case of Andrews, heretofore cited.

The first question raised is in reference to the ruling of the Court striking out a part of the fourth paragraph of the answer. The part stricken out is not before us by bill of exceptions, so as to enable us to consider it.

The second point made, is upon the demurrer to the eighth paragraph of the answer, which set up that no certificate of stock had been tendered before suit, and was held bad. The decision was right. The New Albany, &c., Railroad Co. v. McCormick, 10 Ind. R. 499.

The third point is upon the sufficiency of the complaint; It was not demurred to. It is good after verdict.

15. The plaintiff was suffered to prove that the defendant owned a farm on one of the routes surveyed. The subscription of the defendant was, in the first place, conditional on the location of the road on that route, and after its location made absolute. The evidence was properly received on the question of the inducements which influenced him to subscribe.

16. The Court refused to hear evidence of representations made by a soliciting agent in regard to the ultimate value of such stock. This could not have been anything more than a mere matter of opinion, upon which no person should have placed' such confidence as to have controlled his action in subscribing.

17. A witness, upon cross-examination, was asked by the plaintiff whether the subscription sued on was not first made “for the purpose of securing the location on the Broadhead survey.” The question was objected to because it was leading, and sought to elicit an opinion only.

The rules of evidence are not so rigid in regard to a cross-examination, as when a party is questioning his own witness. The Court must have some discretion on that point; we see no abuse of it here. The question does not suggest an opinion as an answer. The witness might have been informed by the defendant as to the purpose in view, &c.

H. W. Harrington, for the appellant. S. Judah, for the appellees.

18. The question of the application of payments is made. This was a question for the jury, whether the defendant intended to apply payments upon calls made before he subscribed or not. The number of receipts he produced was equal to the number of calls made after he subscribed, but several of them were for money paid on the same day, and in the body of some of the receipts they appeared to be in discharge of calls designated by their numbers, and the corresponding numbers on the records of the corporation appear to have been made prior to the subscription of defendant. These and other circumstances, in evidence, made a proper case for a jury.

Per Curiam.

judgment is affirmed with 5 per cent, damages and' costs.

See the next preceding case.