The opinion
When the plaintiff rested his case the only evidence in it connecting Dalley with the transactions of the company was that, in April, 1855, long after its organization had been completed, he was elected one of its directors, and, as such, attended during the following summer three meetings of its board; at neither of which anything appears to have been said or done indicating any deficiency in its capital. It also appeared that cards were issued by the company stating its cash capital at $150,000; but when issued, or to what portion of them Dalley's name was attached, does not appear. Six were produced in evidence, upon two of which Dalley's name appeared, and upon four it did not. There was no evidence that the plaintiff was influenced by those upon which Dalley's name appeared. One witness testified that he took from the officer of the company one of those cards, and spoke of or read from it to the plaintiff "cash capital $150,000;" but he did not state, nor did it appear, that Dalley's name was upon it; or, if it was, that the fact of its being there was brought to the attention of the plaintiff; and what is more, when one of the cards produced in evidence, having upon it the name of Dalley, was exhibited to the witness he said he would not swear that it was one of those he took from the office. The plaintiff, as a witness in his own behalf, testified that in May, June and July, 1855, Hart and Blaisdell gave him cards at the company's office like those produced in evidence, but he did not say which description of cards they gave him; their names were upon each kind. But assume that the name of Dalley was also upon them, it does not appear that the plaintiff was influenced by it. The only statements which, from his own evidence, are shown to have influenced him, were those made by Blaisdell and Hart, the publication of Barnes and the statements of Harris. I am, therefore, of opinion that the court erred in denying the motion to dismiss the complaint as against Dalley, as well *Page 37
upon the ground that the evidence was insufficient to prove that Dalley made any representations, innocent or otherwise, which were communicated to the plaintiff, as upon the ground that if the plaintiff had been shown one of the cards with the name of Dalley upon it, there is no evidence that it influenced his action.
The order of reversal should be affirmed.
All concur.
Order affirmed and judgment absolute against plaintiff, with costs.