The opinion
On Petition eor Rehearing.
Howard, C. J.
The learned counsel for appellees do not question the correctness of the conclusions *198 reached by the court as to the sufficiency of the first, third, fifth, and sixth paragraphs of the complaint; but they say that, as to the fourth paragraph the opinion is erroneous. This contention is undoubtedly the result of a misapprehension of the scope and meaning of one of the concluding paragraphs of the opinion, to wit: “The insolvency of the company is the undoubted result of violations of the statute in question, ordered and assented to by appellees as directors of the company.” Counsel do not deny that this statement is correct, in so far as it applies to the facts stated in all the paragraphs of the complaint except the fourth. The sufficiency of the fourth paragraph, however, was considered by itself, inasmuch as that paragraph is based upon sections 5060,5062,5071,5073, Burns’ R. S. 1894 (3859, 3861, 3863, 3865, R. S; 1881), which relate to payment of stock and publication of financial condition of company. Under these sections of the statute, the fourth paragraph of the complaint states a good cause of action. By the last of these sections the officers are made liable “if they shall fail to give such notice or make such report, and any person or persons shall be misled or deceived by such false report or certificate or on account of such failure to make such report, and damaged thereby.” The fourth paragraph of the complaint alleges the insolvency of the company, and the failure of appellees to publish the notice required, and that appellants were “misled and deceived by such failure to publish such notice,” and wére damaged thereby in the manner stated. While it is true that the insolvency of the company was caused by violations of the statutes on the part of appellees, as set out in the first, third, fifth, and sixth paragraphs of the complaint, for which appellees incurred the liability prescribed in section 5076, Burns’ R. S. 1894 (3868, R. S. 1881), yet that does not *199 relieve them of liability, also, for failure to make the publication prescribed in section 5073, Burns’ R. S. 1894 (3865, R. S. 1881), as set out in the fourth paragraph of the complaint. Of course the failure to publish the report was not a cause of the insolvency of the company, but it was a cause of damage to appellants, for which they had a right to recover. That the fourth paragraph of complaint may not have been sufficiently definite, as claimed by counsel, on authority of Niles v. Dodge, 70 Ind. 147 , was not a reasofi for sustaining the demurrer, whether it might have justified a motion to make more specific or not'. Whether it was sufficiently specific, we need not and do not decide. Rodgers v. Baltimore, etc., R. W. Co., post, 398.
Petition overruled.