sued to them. (4) On the 25th day of May, 1887, and before said articles had been filed, Cornelius Sheehan, the defendant in this action, made his check payable to the order of John E. Putnam for the sum of $1,000, stating to Putnam that he designed it as a gift to help the enterprise, but not to pay it until he, said Sheehan, would not incur any further liability. Said Sheehan did not part with said check with any other or different intention than that expressed in said directions to said Putnam. Said Putnam intended to aid said enterprise in a similar manner by advancing the sum of $500, on the same or similar terms. (5) Previous to the 7th day of July, 1887, said Judson stated and represented to said Putnam that eighty-five shares of said capital stock had been subscribed for or paid for, whereas there had not then been any of the said capital stock either subscribed or paid for. That said Putnam believes said statement to be true, and communicated it to the defendant, and thereafter, on the 7th day of July, 1887, made his check, with the assent of the defendant, to the order of the plaintiff for the sum of $1,500, which check included the said $1,000 check left with said Putnam for the purpose above mentioned, and the said Putnam received two certificates of stock which had on that day been made out to the plaintiff,—one for $1,000, and the other for $500,—both of which contained an assignment in blank,- signed by the said McDowall. Said Putnam would not have parted with said check had he not believed the said statement to have been true. Said defendant did not learn of the falsity of said statement upon which said check was procured until it was disclosed on the trial of this action. The plaintiff voted on said stock the same after as before said assignments in blank, and continued to act as such stockholder as long as such corporation existed, and said certificates of stock continued in his name on the stock-book of said company the same after as before said assignments, said defendant’s name never having been entered on said books in any manner.” Judgment was rendered for plaintiff in the sum of $1,000, and defendant appeals.
Argued before Learned, P. J., and Mayham, J.John Foley, (J. W. Crane, of counsel,) for appellant. Charles Lester, for respondent.
There is sufficient evidence to show that defendant was a stockholder. He paid his $1,000, through Judge Putnam, to the company, and he received through Judge Putnam a certificate issued in the name of McDowall, and assigned by McDowall in blank. The acceptance and retention of this certificate showed that, instead of making a present of the $1,000 to the company, he took stock therein. It is true that he did not intend that his $1,000 should beso paid as to cause any personal liability, but Judge Putnam had been told that all the stock but $1,500 had been subscribed for, (or paid,) and had repeated this information to defendant, and thereupon had been authorized to pay the defendant’s $1,000, together with his own $500. It turned out that the statement thus made to Judge Putnam was not true; but the plaintiff was not responsible for that error, and- knew nothing of it. Nor can it be said that the plaintiff obtained anything by that untruthful statement, and thus became responsible for it. The money paid by Judge Putnam went to the company, and did not belong to the plaintiff. There can be no doubt that for work done by the plaintiff for the company he had a right of action against it, although he was a trustee. It was proper and necessary to prove the judgment against the company. The plaintiff then gave other evidence tending to show that the company owed him. Even if the liability on the note could not be a ground of recovery in this action because the action against the company was not commenced within the year, yet that objection does not lie against the cause of action for plaintiff’s services; for the plaintiff’s services continued till October, 1888, and in that month the action against the company was commenced. The defendant urges