Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1876-06-30

She is, however, by nj means
accurate in statement or logical in rea.
as is a~bundantly shown by her
sketches Of America.
selma, Marion and Memphis Rail-.
road Go. vs.. John M. Andersen.
Vicksburg Herald. I'll
a0pinion of the court by Chalmers, J
This is a suit brought by the railroad
corporation against defendant, to re-
cover a subscription 10 the capital stock
Of the former by the latter. There was
verdict and judgment in the court below
for defendant. The errors complained
OF are the admissions Of testimony made
by defendant himself to the effect that
he had been induced to subscribe to the
enterprise by the false and fraudulent
representations Of N. B. Forrest, the
President Of the corporation, who stated
that he had sufficient means in hand or
in view to construct said railroad, which
representations were publicly made,
and we're allowed to 90 uncontradicted
by them, and hat be, defendant, relied
upon the same, having confidence in
said Forrest and no access to the books
OF the company, and also for the giving
of the following instructions for the
defendant: That no mere opinion ex
pressed by The agent, N. B. Forrest, in
procuring said subscription, amo1nts TO
a fraud upon the rights of defendant,
nor do they constitute a sufficient reason
to avoid his contract; but if the jury be
lieve, from the evidence, that the de-
PENDANT was induced to make his sub
scription by reason Of the false and
fraudulent representations Of said For
est, as President and agent Of plaintiff,
of matters within his knowledge, or
which it was his duty to have known as
President, as to any existing material
fact, or as to any past transaction Of q
nature calculated to influence defend
ant in making his subscription, then said
contract Of subscription is void, and the
Jury will find tor the defendant" and
second, That where an act Of incorpor.
alton fixes the amount of capital stock
of the enterprise and the number Of
shares into which it shall be divided, the
corporation can make no assessment OF
call upon the individaal stockholderi
until all the stock has been subscribed
unless either expressly or by implication
a different intent appears in the charter
or in the subscription. There was nc
evidence showing that in point of fac
the representations of Forrest, Presi
dent, etc we're either false or fraudulent
FHeld:
/. That the statement upon the par
of an agent of a corporation as to the
~pecuniary condition and prospect Of his
corporation will not avoid a subscription
unless the falsity aRd fraud of such rep
reservations are clearly shown, and un
less it is manifest that the condition o
/, the enterprise constituted a material in
ducement to the subscription.
2. That to avoid a subscription upoI
the ground Of false representations o
an agent, it must be shown that tb,
statement was net uttered as an opinion
but as an ascertained aud existing fact
1t must not only be false in fact, bu
must be also either known to be so b
} the party uttering it, or his position
must be one that made it his duty t
know the truth. The resisting subscribe
must show that he acted upon such state
ment, that his " position was such a
warranted him in so acting, and that thl
: statement was as to a fact material Il
the question of his subscription.
, 3. That ever with these limitations i
= will not avail if the representations ar
as to matters controlled by the charter
and as to which the subscriber is legal
bound to know that the agent has u
right to make representations inconsisi
ent Herewith. As to matters not cor
trolled by the charter, false and fraudu
lent representations, which come With
the limitations, and by which a party hs
been eutrapped into a subscription to
: public enterprise, will avoid the contraC
! just as fraud avoids contracts of ever
character.
4 That the record fails to disclose th
q facts essential to avoid the subscriptio
in the case at bar, and that it was in
u proper to admit the testimony Of d
e iendant standing, as it did, alone, and
}. was error to give the first instructio
A without further proof to which it ooul
= be applied.
5. That the second instruction co
rectly a well.settled princip
OF the law Of such cases, but is neverth
less faulty, because C) it submits to Il
is jury the legal construction Of plaintiff
v charter; (the legal effect Of written i
: struments being a question for the Coul
and not for the jury q 1t seems i
* tended to raise the question whether Il
Company was duly organized, which CO
W only be made by q plea under oath, d
nying the character assumed.
Raverped and ramandad