Shattuck v. Robbins , 68 N.H. 565 ( 1896 )

The main ground of defence presented is that the defendant was induced to subscribe for the stock by the false and fraudulent representations of Towner, who solicited the subscription, that they had, arranged to buy the "Nashua Telegraph" and were going to have the Associated Press news. There is neither a finding of fraud nor any evidence of fraud in the case. No facts were found inconsistent with the utmost good faith on the part of Towner. It does not appear that at the time of the defendant's subscription they had not in fact arranged to buy the "Nashua Telegraph" or that they were not going to have — that is, proposed to have — the Associated Press news. There is no evidence tending to show that Towner did not believe what he said to be true and was not acting in perfect good faith. The last expression, that they were going to have the Associated Press news, was a mere statement as to the happening of a future event, and both statements may be fairly considered the expression of a mere opinion, or of an existing intention to do a certain act which was liable to be changed at any time by the act of the majority of the stockholders. Piscataqua Ferry Co. v. Jones, 39 N.H. 491; Kelsey v. Oil Co., 45 N.Y. 505; McAllister v. Railroad, 15 Ind. 11;1 Mor. Corp., s. 98; 1 Cook Stock Stockh., s. 138. If the representations had been that they had already purchased the "Nashua Telegraph" and had then secured the Associated Press reports, a question would arise which the case does not now present. If these statements of Towner are regarded as a parol agreement made previous to or contemporaneous with the execution of the contract of subscription, they are inadmissible in evidence and will not be allowed to vary or control the written contract, and are inoperative and void. White Mts. Railroad v. Eastman, 34 N.H. 124; Piscataqua Ferry Co. v. Jones, supra; 1 Cook Stock Stockh., ss. 136, 137; 1 Mor. Corp., s. 98.

It does not appear that Towner undertook to release the defendant from his subscription. He had no power to do so because Goodell refused to subscribe, or for any other reason. 1 Mor. Corp., ss. 109, 111. The defendant raises the objection that this suit cannot be maintained for the subscription of the stock because no assessments have been collected by sale of the stock subscribed for. This objection was not raised at the trial. But as it appears the defendant, by the terms of his subscription, agreed to pay the amount at specified times, a suit can be maintained on the agreement. It is only where a subscriber for stock agrees to take a specified number of shares without expressly promising to pay the amount of the same or the assessments, that he cannot be personally sued on the contract until his shares have been sold to pay the assessment. N.H. Central Railroad v. Johnson, 30 N.H. 390, 403; White Mts. Railroad v. Eastman, supra; Company v. Burlingame, 67 N.H. 301; Union Shoe Co. v. Pray,67 N.H. 435; 1 Mor. Corp., s. 144. No question is made but that the whole amount of the capital stock authorized was subscribed.

Judgment for the plaintiffs.

CLARK, J., did not sit: the others concurred.