Juniata sentinel and Republican. [volume] (Mifflintown, Juniata County, Pa.) 1873-1955, 1878-12-11

never secnred, and that the railway
between said points has never been
built, and that the company is insolv-
ent and unable to build the same
and by its insolvency has forever
placed it out of their power to build
it, and that the said special subscrip-
tions as aforesaid made by all the
subscribers thereto was delivered to
the company without the authority or
consent of the subscribers, and be-
fore the said sum of $4,000 of good
and valid subscriptions had been OBJ
tanned, and that the original subscip-
tions of the defendants under the
conditions aforesaid was for ten
shares, and the sum was otherwise
increased to 20 shares at the special
instance and request of ". A Meek
er, president Of the company, upon
the express agreement made at the
time of such increase and as the in
ducing cause in obtaining the sigma
lures of the defendants to the same !;
that the whole amount of the sub
scriptions, to wit, 90 shares, should
be accounted for and paid by plain
tiffs to the defendants, with timber
and lumber for the purpose of con-
structing the bridge over Middle
Greek, and for other purposes for
which material and timber were need
ed on the proposed line Of railroad
between Selinsgrove and Burns juno
ton, for which the subscriptions were
obtained as aforesaid; that the de
PENDANTS were engaged in the manu-
featuring of timber, and purchased
timber to be used as aforesaid, and
kept the same for over n year, ready
to comply with the agreement as
aforesaid made, that no demand was
ever made by plaintiffs to defendants
for the timber, and the timber so pur-
chased by them WAS afterwards sold
by them at a heavy loss, and the tim
ber was rendered in pursuance of the
aforesaid agreement. Objected to.
Objection sustained and evidence
excluded; defendants except. Second
assignment of error.
In charging the jury, the Court
said, inter ala: If you believe the
testimony of the plaintiffs tina. there
was a call made on the 10Th of Feb
ruary, 1874, for payment of 10 per
cent. Of this subscription in month
from that date, together with 10 per
cent. every month thereafter, and the
resolution would be the best evidence,
the defendants would be bound to
pay under the call 10 per cent. every
month, beginning on the Goth of
February, 1874, and running on
monthly thereafter until all was paid
Third assignment of error.
And also: "The mere fact that the
defendants were not notified of the
call, would not preclude a recovery. /.
Fourth assignment of error.
Verdict for plaintiffs for S1227.5
and Judgment thereon Defendants
took this writ, assigning for error the
admission and rejection of evidence,
and the instructions to the jury, as
above set forth.
Opinion by GORDON, j., October Z,
1878.
Where subscriptions are made TO the
stock of public corporation previous
to and for the purpose of procuring a
charter, any conditions annexed thereto
whether written or parol, are void.
But after the organization Of the com
pany a condition is binding and obliga-
tory, and ordinarily this is so though
1t rest in psrol only where except for
such condition the subscription would
not have been made. The latter part
of this proposition is subject, however,
to the qualification that the rights OF
CO. subscribers are not affected thereby:
Browser, II Wr. 90; Galley =. The
Railroad Co, so p. L. s. 363; Graf
v. The Railroad Co., I Ca. 4S9; and
Miller Y. The Railroad Co., loot yet
reported) Now, as at the time the
defendants entered into the contract IN
suit the plaintiff was a chartered and
fully organized corporation, it had all
the powers to make contracts, condition
al or unconditional, written or IN parol
that are possessed By natural persons
This being SO, it remains TO inquire
whether the offer of the defendants
comes within the rules which permit
the introduction of oral testimony to
add to or vary the terms Of written
instrument Aud at first, supposing
the proposed oral conditions to be ad
misslble as between the company and
the defendants, would their interposit-
ion prove to be injurious to or in fraud
of the rights of eo-su5scribers1 Would
the effect be to relieve the defendants
from payment, whilst their fellows in
| the common adventure would be still
held! An affirmation Of this proposit-
| ion determines the question against the
proposed. Fcr i; would be intclerab!e
that one who had joined with others 10
common undertaking should be per-
mitted to escape from the common bur
then by the interpostiou Of condition
of which his co obligators had no know
ledge. The inequitable character Of
such q transaction becomes obvious
when We reflect that one would in
this manner not merely relieve himself,
but would thereby add to the burthens
of others. Blu, the offer proposes Goth
ing Of this kind, for the alleged condl-
tions were common to all subscribers.
All might have taken advantage of
them, and though some may not have
seer fit so to do, yet that is no fault of
the defendants, and for such reason
they cannot be deprived of common
right. The proposed proof was tina,
all the subscriptions contained in the
book offered by the plaintiff were OBJ
tanned for special purpose: that they
were to be applied to the building of a
branch from the main line of the road at
Burns Junction to the town of Selins-
grove, and that these subscriptions
r IL