Madison & Indianapolis Plankroad Co. v. Stevens

• Decision Date: 14 December 1857
• Citation: 10 Ind. 1
• Parties: Madison and Indianapolis Plankroad Company v. Stevens
• Court: Indiana Supreme Court

10 Ind. 1

Madison and Indianapolis Plankroad Company v. Stevens

Supreme Court of Indiana

December 14, 1857

From the Decatur Court of Common Pleas.

The judgment is reversed with costs. Cause remanded for a new trial.

J. Gavin, J. R. Coverdill and O. B. Hord, for appellants.

J. Ryman, for appellee.

OPINION

Perkins, J.

Suit upon a subscription of stock. Answer under oath, that the subscription was delivered to Alexander Washer, as an escrow.

Reply, that Alexander Washer, to whom the delivery was made, was at the time the president of the company in which the stock was subscribed, and the agent to receive the subscription. Upon the trial, the plaintiff asked the Court to give to the jury this instruction:

"If the jury believe from the evidence, that said Alexander Washer was the president and agent of the company for the purpose of receiving subscriptions of stock, at the time when the parol agreement for the delivery of the subscription of stock was made by said defendant, then the delivery [which followed] was absolute, and the instrument valid."

The Court refused the instruction, and gave the contrary.

In this the Court erred. One co-obligor may, perhaps, deliver a bond to another co-obligor, as an escrow; but an instrument cannot be so delivered to the obligee or payee, or the agent of either. Such delivery is, in law, absolute. Pet. U.S. Dig. tit. Escrow; Foley v. Cowgill, 5 Blackf. 18; State v. Chrisman, 2 Ind. 126; Wright v. Shelby R. R. Co., 16 B. Mon. 4. See Guard v. Bradley, 7 Ind. 600; Peter v. Wright, 6 Ind. 183; Gray v. State, 9 Ind. 25.

And parol evidence cannot be given to vary the legal effect of such delivery, or the terms of the instrument delivered. This has been too often decided to require a citation of authorities to evidence it. Hiatt v. Simpson, 8 Ind. 256.

Per Curiam.

The judgment is reversed with costs. Cause remanded for a new trial.