Suit by the. railroad company against Boyle upon a subscription of stock.
The capacity of the plaintiff to sue is admitted. The execution of the subscription is admitted. The subscription is payable in cash, is shown to have been due before suit instituted, and the amount is specified in it.
McDonald $ Doaclie, and Suit, Cowan § Sims, for the appellants. Durden $ Davidson, for the appellee.The defendant, in answer, sets up matter in avoidance.
He alleges that the articles gave him the privilege of discharging his cash subscription by work on the railroad; but he does not show that he ever applied to the company for it. If he had so applied, the company might have taken efficient measures to have secured him his right as a sub-contractor. He did take a sub-contract from an original contractor, but the railroad company was no party to the agreement; and the agreement did not bind the original contractor to furnish the work to the sub-contractor, in any fixed time; and the subcontract has not been performed, from whose fault is not made clear by the evidence. The jury allowed the defendant the value of what he had done.
The case was fairly tried; the defendant was defeated for want of a defence. He complains that the Court did not allow him to prove that he was to work out, under his contract, the stock of other subscribers as well as his own. The evidence was immaterial, even if legal, as he had not worked out the amount of his own.
The judgment is affirmed, with costs.