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Opinion of the Court.

the contract. These questions and answers, numbered 6, 7 and 8, related to the time of the receipt by H. W. Child of the bill for the lumber specified in the contract, the time of its actual delivery on the ground at Gregory, Montana, and to the witness' possession of a copy of the bill of lumber so delivered. The form of the questions was unobjectionable, the answers were responsive thereto, and were not heresay. The objections to these questions and answers are frivolous.

Question number 9 and the answer thereto, in the same deposition, are also challenged. This question was as to the time of the completion of the mill, and the fact of an acceptance.

The answer was that the mill was completed about the end of February, 1884, and accepted April 18, 1884, by Charles Hesse, the superintendent of the mining company in Montana. Surely, completion and acceptance were matters which, under the contract, had to be proved ; and as the form of the question is not challenged, and the answer was direct and responsive thereto, the objection to them is no better than those heretofore mentioned.

Objection is also made to question and answer number 6, in the deposition of Charles Hesse. That question was, who accepted the mill on behalf of the company, and how was such acceptance made; and the answer of the witness was that he accepted it in writing. It is impossible to conceive of any objection to this testimony.

The answer to question number 12 in his deposition is also objected to. In that answer, he testified to his estimate as to the capacity of the concentrator. It certainly worked no hardship to the defendant that the capacity was larger than that stipulated for in the contract, and it tended to prove that the acceptance, which, in fact, was made, was properly made.

It is further objected that the court erred in refusing to non-suit the plaintiff at the close of his testimony. But considering the scope of the testimony, which we have heretofore noticed, it is obvious that the court did not err in overruling such motion, and would have erred if it had sustained it.

It is also objected that the court erred in refusing to receive in evidence a letter from Child, the manager, to the Iron

VOL. CXLI-15

Opinion of the Court.

Works. As this letter contained nothing of value as tending to determine the matters in dispute between the parties, the court did not err in refusing to admit it. In so far as it referred to the details of shipment, and the difficulty of transporting the machinery to the mine, or the condition of the building, even if these matters were of any importance, it is not perceived how the defendant can make testimony for itself by simply writing a letter to the plaintiff. Mr. Child was a witness on the trial, and if there was any fact stated in the letter which was material to the controversy, he could have been interrogated in respect to it.

Another objection is that the court refused to receive in evidence four letters from Hesse to Child. These letters could not be received for the purpose of impeaching Hesse, for his attention had not been first called to them; and no letter from one officer of a company to another is admissible against another party to prove the truth of the facts stated therein.

A final matter is this: In each case appear instructions, though in a case tried by a court without a jury a request for instructions seems incongruous. But passing that by, for in the case tried by the jury instructions were proper, it is urged that the court erred in refusing this instruction : “The jury are instructed in the above-entitled action that time in the contract sued is of the essence thereof, and that if you find that the failure to fulfil the contract in time was without fault of the Gregory Consolidated Mining Company, then plaintiff cannot recover and you must find for defendant."

The only stipulation in the contract as to time was that heretofore referred to for completion within four months from date, provided the lumber required should be delivered on the ground within forty days after the receipt of the bill therefor by Child, the representative of defendant. The testimony establishes the fact that this bill was delivered to Child within a day or two after the signing of the contract; and the only testimony in respect to the delivery of the lumber makes it clear that it was not delivered within forty days thereafter. The stipulation for the completion of the work within four months became, therefore, inoperative, and that through no

Statement of the Case.

fault of the Iron Works. An instruction like that asked was misleading and improper.

It is obvious, from these considerations, that the proceedings in this court were for delay. Under clause 2 of Rule 23 of this court, It is ordered in No. 356, a supersedeas bond having been

given, that the judgment be affirmed and that ten per cent damages, in addition to interest, be awarded. In No. 357, as this court has no jurisdiction by writ of error over the proceedings, all we can do is to dismiss the case, and such is the order.

PACIFIC NATIONAL BANK v. EATON.

ERROR

TO THE SUPREME JUDICIAL COURT OF THE STATE OF

MASSACHUSETTS.

No. 239. Argued March 23, 24, 1891. - Decided May 25, 1891.

Delano v. Butler, 118 U. S. 634, and Aspinroall v. Butler, 133 U. S. 595, affirmed

and applied to a case where a shareholder in the bank, having subscribed her proportional share to the doubling of its capital and paid therefor, took out no certificate for the new stock and demanded back the money

so paid. A subscription to stock in a national bank, and payment in full on the sub

scription and entry of the subscriber's name on the books as a stockholder, constitutes the subscriber a shareholder without taking out a certificate.

This was an action at law to recover from the Pacific National Bank an amount paid in as a subscription to an increase of its stock. The circumstances which induced the call for the increase are stated fully in Delano v. Butler, 118 U. S. 634, and Aspinwall v. Butler, 133 U. S. 595. The plaintiff below, (defendant in error,) owning forty shares of $100 each, subscribed for an equal amount in the proposed increase of $500,000; and paid in the money. Owing to the fact that some stockholders declined to take the new stock, the actual amount

Argument for Defendant in Error.

of increase subscribed was $461,300, and, after the plaintiff's payment of the $4000, an increase to that amount only was approved by the comptroller in lieu of the $500,000 previously authorized. The plaintiff below, not having taken out any certificate of stock, demanded repayment of the $4000, and, the same being refused, brought this action, and obtained judgment for that amount, interest and costs. The bank having become insolvent, the action was defended by the receiver, who sued out this writ of error.

Mr. A. A. Ranney for plaintiff in error.

Mr. J. H. Benton, Jr., for defendant in error.

The decision of the state court that the bank received the money of the defendant in error upon an implied promise to give her forty shares in an increase of five thousand shares was correct. An increase of the capital of a national bank depends on compliance with the conditions of the statutes and articles of association; and not upon an arrangement between the bank and its shareholders or other persons. Rev. Stat. $ 5142; Charleston v. People's Nat. Bank, 5 So. Car. 103, 115.

The payment by the defendant on the 1st of October was an acceptance of this offer, and created a contract between her and the bank, by which it promised to issue to her forty shares of such five thousand new shares, if the whole five thousand were subscribed and paid for and the comptroller approved their issue, and by which she promised the bank to take forty shares of such proposed increase of five thousand shares, if the whole five thousand were subscribed and the comptroller approved their issue, i.e., if such five thousand shares were created. Spring Company v. Knowlton, 103 U. S. 49.

It was upon this implied contract to issue and to take forty shares of stock in the proposed increase of five thousand shares, if such shares were created, that the defendant paid to the bank four thousand dollars. If the whole five thousand shares were not subscribed and paid for, or if the comptroller

Argument for Defendant in Error.

refused to approve their issue, no such shares as were paid for could be created, and the bank was under no obligation to issue any shares to her, and it necessarily follows that unless the whole five thousand shares were subscribed and paid for, and the comptroller approved the issue of them, she was under no obligation to take forty shares of any other increase which might be voted, subscribed and paid for and approved.

The attempted application by the bank of her money to the payment for forty shares in an increase of forty-six hundred and thirteen shares, instead of the payment for forty shares in an increase of five thousand shares, was really an attempt to make her take forty-three shares, when she had only agreed to take forty. People's Ferry Co. v. Balch, 8 Gray, 303, 314; Katama Land Co. v. Jernegan, 126 Mass. 155.

It is too plain for contention that no shares in a proposed increase of the capital of a national bank can come into existence till the whole amount thereof is paid. Such is the plain reading of the statute: “No increase shall be valid until the whole amount of such increase is paid in.” If this were a case of subscription to original capital under a charter which provided that no capital stock shall be issued until the whole amount of the capital has been subscribed for, the authorities are uniform that a subscription for shares would not be binding until the whole amount of the capital was subscribed. Santa Cruz Railroad Co. v. Schwartz, 53 California, 106; Bray v. Farwell, 81 N. Y. 600; New York, Ilousatonic, etc. Railroad Co. v. Hunt, 39 Connecticut, 75; Read v. Memphis Gayoso Gas Co., 9 Heiskell, 545; Fry v. Lexington etc. Railroad Co., 2 Met. (Ky.) 314, 323; Shurtz v. Schoolcraft & Three Rivers Railroad Co., 9 Michigan, 269; Swartwout v. Michigan Air Line Railroad Co., 24 Michigan, 388; Livesey v. Omaha Hotel Co., 5 Nebraska, 50; Hale v. Sanborn, 16 Nebraska, 1; Selma, Marion, etc. Railroad Co. v. Anderson, 51 Mississippi, 829; Hughes v. Antietam Mfg. Co., 34 Maryland, 316; Topeka Bridge Co. v. Cummings, 3 Kansas, 55; Littleton Mfg. Co. v. Parker, 14 N. H. 543; New Hampshire Central Railroad v. Johnson, 30 N. H. 390; S. C. 64 Am. Dec. 800; Contoocook Valley Railroad Co. v. Barker, 32 N. H. 363; Peoria & Rock

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