Davis & Rankin Bldg. & Manuf'g Co. v. Booth

• Decision Date: 06 June 1894
• Court: Indiana Appellate Court
• Parties: DAVIS & RANKIN BLDG. & MANUF'G CO. v. BOOTH et al.

10 Ind.App. 364

37 N.E. 818

DAVIS & RANKIN BLDG. & MANUF'G CO.

v.BOOTH et al.

Appellate Court of Indiana.

June 6, 1894.

Appeal from circuit court, Cass county; U. Z. Wiley, Special Judge.

Action by the Davis & Rankin Building & Manufacturing Company against Jasper N. Booth and others on a written contract. From a judgment for defendants, plaintiff appeals. Affirmed.

Mage & Funk, for appellant. McConnell & Jenkins and Nelson & Myers, for appellees.

LOTZ, C. J.

The appellant was the plaintiff in the court below. In its complaint it is alleged that Davis & Rankin, a copartner-ship, entered into a written and printed contract with the appellees to build, erect, and complete for the appellees, at or near Logansport, Ind., a butter factory, for the sum of $5,200; that Davis & Rankin performed their part of the contract to the satisfaction of appellees, who accepted said factory as completed on the 1st day of June, 1891; that on the 8th day of June, 1891, Davis & Rankin assigned the contract to the appellant; that the appellees have paid the sum of $5,000 on said contract, and that there remains due and unpaid on said contract the sum of $200. A copy of the contract is made an exhibit to the complaint. The material parts of the contract, aside from the formal parts and the specifications for the factory, are as follows: “We, Davis and Rankin, party of the first part, hereby agree with the undersigned subscribers hereto, party of the second part,to build, erect, complete, and equip, for said party of the second part, a butter factory, at or near Logansport, Indiana. * * * Said Davis and Rankin agree to erect said butter factory as set forth by the above specifications for $5,200, * * *, payable one-half cash when factory is completed and one-half in three months from completion, interest at six per cent. In shares of one hundred dollars each. We, the subscribers hereto, agree to pay the above amount for said butter ------ when completed, said building to be completed in ninety days, or thereabouts, after the above amount of $5,200 is subscribed. * * * As soon as the above amount of $5,200 is subscribed or in a reasonable time thereafter, the said subscribers agree to incorporate under the laws of the state, as herein provided, fixing the aggregate amount of stock at not less than the amount to be divided into shares of $100 each, said share or shares as above stated to be issued to the subscribers hereto in proportion to their paid-up interest herein. And it is herein agreed that each stockholder shall be liable only for the amount of stock subscribed by him. * * * It is hereby understood that Davis and Rankin will not be responsible for any pledges or promises made by their agents or representatives that do not appear in the contract, and made a part thereof, either in printing or writing.” This contract was signed by Davis & Rankin as parties of the first part, and the appellees, as subscribers, each signed the contract under this heading: “Name of Subscriber. No. Shares. Amount of Stock. After Incorporation.” Following each name under its appropriate heading is set out the number of shares subscribed by each, and the amount of stock to be issued to each after the incorporation; the number of shares subscribed by any one person did not exceed two, and the amount of the capital stock subscribed by any one person did not exceed $200.

The appellees each demurred separately and severally to the complaint, assigning as a cause of demurrer that it did not state facts sufficient to constitute a cause of action against them or either of them. This demurrer was overruled, to which ruling the appellees each severally excepted. The appellee Rogers answered separately; the others jointly. The appellant moved to strike out certain paragraphs of the answers, which motion being overruled, it then demurred to them, which demurrer was overruled. The appellant then replied, and the cause was submitted to a jury for trial, which, at the request of the parties, returned a special verdict. The appellant then, in their order, filed a motion for a venire de novo, a motion for a new trial, a motion for judgment in its favor as against all of the defendants, and a motion for judgment against the defendant Rogers alone, all of which motions were overruled. The court then sustained appel...