Clem v. Newcastle & Danville R.R. Co.

• Decision Date: 27 November 1857
• Citation: 9 Ind. 465
• Parties: Clem v. The Newcastle and Danville Railroad Company
• Court: Indiana Supreme Court

9 Ind. 465

Clem v. The Newcastle and Danville Railroad Company

Supreme Court of Indiana

November 27, 1857

From the Warren Circuit Court.

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

Benjamin F. Gregory and Jesse Harper, for appellant.

William H. Mallory, for appellees.

OPINION

Davison J.

The complaint charges that Clem, who was the defendant, on the first of August, 1854, made an agreement in writing, as follows:

"We the undersigned, agree to pay 50 dollars to the president and directors of the Newcastle and Danville Railroad Company, for each share of stock annexed to our names, subject to the assessment of the board of directors, not exceeding 5 per cent. of the amount subscribed every sixty days. No assessment except 1 per cent. to be made until the subscription to the capital stock of the road amounts to 600,000 dollars. These subscriptious are made on the condition that the road runs through, or within a half mile of, the original plat of Covington, Fountain county, Indiana. One per cent. due on subscribing, or on demand."

To this agreement, the defendant subscribed his name, and opposite thereto annexed, "Ten shares, 500 dollars." It is averred, inter alia, that at a regular meeting of the board of directors, held on the 4th of April, 1855, it was ordered that 5 per cent. on the amount of stock subscribed be paid on the 15th of May, then next ensuing--that being the first assessment--and that each stockholder be required, every sixty days thereafter, to pay 5 per cent. on the amount subscribed, until the whole is paid,--of which the defendant had notice. And that on defendant's subscription there is now due and unpaid nine assessments, amounting to 225 dollars.

The defendant answered. In his answer, he says that immediately before and at the time he signed the agreement, John Briar the company's agent, who was then soliciting subscriptions for stock, stated to him, defendant, that if he would subscribe, he would not be called on to pay anything until the road was laid out and worked on in the county of Warren, through which it was to be located. He avers that the road had not been worked on or laid out in said county; that he, defendant, relied on the agent's statement, and was thereby induced to sign the agreement; that the statement was false and fraudulent--was made for the purpose of defrauding the defendant, and inducing him to make the subscription. Dem...