Henderson & Nashville Railroad v. Moss ( 1865 )

JUDGE PETERS

delivered the opinion of the-court:

Admitting that appellees subscribed to the capital stock of appellants upon the terms and conditions averred in their answer, still they had a right, with the assent of appellants, to change and vary those terms and conditions; and if, without mistake on their part, or fraud on the part of appellants or their agents, of which'there is no proof, they executed the note sued on binding themselves tp pay the amount thereof unconditionally, they must be presumed to’ have undertaken to pay the same upon a sufficient consideration, and that is the legal implication from the execution of the note.

Moreover, five miles of the road was so far completed as to be in a condition to put the running stock on, and the first installment of their subscription was then due and payable, and a postponement of the payment until, the first of March following was a sufficient consideration to uphold the writing..

But McEwen proves that the note sued on was written for the whole of appellee’s (Sam’l Moss) subscription, at his own request, and’for the first installment of R. E. Moss’ subscription. They both signed it after they had become subscribers to the capital stock of appellants. It is absolute and unconditional on its face, and its payment cannot be defeated by conditions annexed to their original subscriptions.

Wherefore, the judgment is reversed, and the cause remanded, that a new trial may be awarded, and for further proceedings consistent with this opinion.