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

that which was not embraced in their
compact-that Is, in the construction OF
tine main line Instead Of the branch.
1t Is true these provisions were oral,
but the offer was to prove that the de-
iendants and their CO subscribers re-
fused to put the,s names to the con-
tract until they we're assured BY the
president of the company that they
should form part OF the terms of that
contract, and be of the same force as
though written therein. This offer
brought the proposition within the rule
which allows of the introduction Of oral
evidence to add to or vary the terms Of
a written contract, for it is clear that
the attempt to enforce the writing with
out the oral conditions was but an at
tempt to enforce what was not the con-
tract Of the parties, aud if successful, =,
would be a fraud on the rights Of the
defendants. In order to prevent a re-
suit of this kind the offer should have
been admitted. The third and fourth
assignments, covering as they do, the
same subject matter, may be considered
together. BY the contract the sub
scriptions we're pay yabie at such time or
times as the company should direct,
.'bu. not to be called for faster than 10
per cent. a MONTH"
As this corporation is made subject
to the general railroad act of lS49, we
must construe the above contract with
reference to the provisions Of that stat
ute. The 9Th section thereof provides
that "The capital stock OF such COM
pany shall DE divided into shares of Fifty
dollars each, shall be called in and
paid at such times and places, and in
such proportions and instalmen:s, not
however exceeding Eve dollars per share
in any period Of thirty days, as the
directors shall require, of which public
notice shall be given for at least two
weeks mex, preceding the time or times
appointed for that purpose" 1t does
seem therefore, that the statute contem-
plates notice, aod unless the officers oi
the corporation may disregard this plain
precept, they cannot move until 1t has
been complied with. 1t is urged, bow
ever, that publication of notice is nec-
cessary only when the penaltie. for non-
payment, subsequently, provided for
are sought to be enforced, and this
reading of the act is supposed to be
sustained By the cases of Greyv. The
Mcnongahela Nav. Co. 2 W {: & s. l62
and Grubv Mahoning Nav. Co., 2 Har.
306. But these cases .re not in point
since the facts involved therein are not
similar TO those in the case now in baud
In the first there was not only notice
BY publication, but there was also eyi-
dence of personal notice, and the ex-
cep,ion was only to the fact that the
publication did not set cut the full
name of the company; an exception
purely technical, aud amounting tC
nothing in a suit for the price of tht
stock subscribed. In the second thers
was no provision in the set of incorpor-
alton requiring notice Of any kind pre-
vlously to a snit for the subscriptions
hence, it was held that il the defend
ant was aggrieved for want of notice
he should have plead the matter 10
abatement, but could not avail him
self of i, on the general issue. On thu
other hand. in the case of Sinkier '
The Turnpike Co, in 3 z. Il w. 1lJ
where the act Of Incorporation did pro-
vide for notice By publication. we have
it said by Mr. justice Kennedy that M
action could be maintained for the de-
PENDANTS subscription, nor any part oi
It, until TIE managers had fixed tn,
time, aud had given notice as required
BY the act Authority, however, il
the case under review, beyond the stat
ute itself, is not necessary, for there
il nothing therein that IL in the least
degree ambiguous. Notice is Just a:
positively required as are call Q, aP
porrionment, and If the latter are nee
essary, so is the former This corpora
ton cannot 20 outside of its character
for its power to sue, and that powel
as found within that insrrumen
must be exercised, if at all, under tn.
conditions therein prescribed. We d.
not say that the apirit of the act would
not te complied with by personal no.
tic., but we do think that neither tn
spirit nor letter OF The act is complies
with when there has been total neg
lect of notice Of any k nd, nor are VI
disposed, b. a forced construction, tt
abolish, or even relax, condition
which, whlis; it fairly protects the sub
ser.oer, is not cumbersome to the com
r7ny. The exception covered by th'
first assignment, taken to the ruling o.
the court on the offer of the plaintiff t,
prove by its secretary that the word
.'and monthly thereafter" were omit
ted By mistake, in the resolution o
February 10Th, ordering the call 70
the stock subscriptions, is not sustain
ed. The learned judge properly saiC
that the object of this evidence was no
to impair the writing as a contract be
tween the parties, but only by the cor
rectlon Of mistake to make the min
utes conform to the fact.
The Judgment is reversed and a nss