The opinion of the court was delivered by
Woodward, J. —The assignments of error are all founded on the charge of the court, and are supported by such verbal criticisms as are easy to be made; but which amount to nothing when they overlook the plain purport, intent, and drift of the language used. In looking through the charge of the learned judge, we think it was more favourable to the defendant than it should have been.
*339For instance, he puts the answer to the first ground of defence on the incapacity of parol evidence to control the written subscription, whereas he might have set aside that branch of the defence on the ground of fraud also.
If the defendant’s subscription was made for the purposes explained in Larimer’s certificate, it was, whether so intended or "not, a fraud on the company, and on all subsequent subscribers, the legal consequence of which would be, that while the defendant might not reap any advantage from it, he would be held to all the responsibilities of a bond fide subscriber: Angell & Ames on Corporations, p. 146, and the eases there cited. I refer also to what was said on this point in Graff’s Executrix v. The Pittsburgh and Steubenville Railroad Company, 7 Casey 489.
The court did not deprive the defendant of the benefit of his position, that Larimer had taken this stock off his hands, and transferred it to the company, and so extinguished it; but the difficulty was that the jury did not believe it. They applied the written memorandum at the foot of the subscription to the stock transferred in 1848, among which were 107 shares in the name of the defendant; and hence, the memorandum had no other effect upon the subscription of 1853 than to entitle the subscribers to a credit on each share of $1.07. This balance resulted from their former payments of $2.50 on each of the transferred shares, for which they had received from Larimer $1.43 a share, leaving them out of pocket $1.07 a share — the amount which was to be credited on the new subscription.
We apprehend that this was a very sound conclusion from all the evidence in the case, and we conceive that the defendant has no reason to complain of it.
In the absence of all explanatory proof as to the time when the memorandum was added to the formal subscription, the legal presumption would be that it was there when the subscription was made. And the evidence of Veeder fixed it there as early as August 1853.
Referring to the jury the only hypothesis which the evidence seemed to justify as to the time and application of this memorandum, the court declined to submit the question whether the stock sued for here was or was not part of the stock purchased by General Larimer, and by him transferred to the company.
And they were quite right in this, for there was no evidence to raise such a question. On the contrary, the evidence was that the stock which Larimer transferred to the company was purchased by him prior to the time of the defendant’s subscription. And of a purchase and transfer, subsequent to the subscription sued on, there was not a tittle of evidence. It is labour lost, then, to attempt to torture from such evidence the favourite defence relied on here.
*340The court might have dealt with it more summarily than they did; but it is no just ground of complaint that it received more attention than it deserved.
The judgment is affirmed.