
    Joseph Bery v. The Marietta, Pittsburgh and Cleveland Railway Company.
    In an. action by a railway company brought upon, a subscription to its stock, which' after its execution had been materially altered without the knowledge or consent of the maker, to recover the amount appearing to be due on such altered subscription, and the execution of the contract, as set out, is denied, the plaintiff' can not recover the amount due on the original subscription, without showing that the alteration was not fraudulently made by the plaintiff.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Coshocton county.
    The original action was brought to recover $200, on a subscription of the plaintiff in error of four shares of $50 -each, to the capital stock of the Marietta, Pittsburg and Cleveland Railway Company.
    The petition sets out two causes of action. The first cause, for the recovery of $150, for three shares of stock sub-' scribed by the plaintiff in error at a time named, and cause No. 2, for $50, for one share of stock subsequently subscribed by him. •
    . The answer denies that the plaintiff in error subscribed Ms name to, or made either of the contracts mentioned in the petition.
    On the trial, in the Court of Common Pleas, evidence was produced by the plaintiff showing, that the defendant, Joseph Bery, authorized, aud requested one Garrett B. Smith to sign his name to the contract of subscription set out in cause of action No. 1, of the petition, for two shares of the capital stock of the company, and no more; and, that it -was not known to the witness Smith, when, or by whom, or whose authority the contract was so altered as to show a subscription, by Bery, of three shares of stock instead of the two subscribed by him for the defendant. No other or further testimony was produced by the plaintiff on the subject of the alteration of the contract of subscription set out in cause of action No. 1. The plaintiff' also produced evidence showing that the subscription of one share of stock on the contract of subscription set out in cause of action No. 2, of the petition, was made for the defendant at his request and under his direction, by one Sheldon Dickinson.
    The defendant, Bery, who was called as a witness in his own behalf, testified that he did not, at any time, alter or authorize any other person to .alter the contract of subscription testified to by Garrett B. Smith, and that the alteration was made without his knowledge or consent.
    After the evidence wjas closed, the -plaintiff in error requested the court to instruct the jury: “ That if the jury find, from the evidence, that the defendant subscribed two shares to the stock of the plaintiff, and after such subscription was made, and without the knowledge or consent of the defendant, the same was so altered as to make it. appear to be a subscription of three shares of said stock, such altered subscription is not the contract of the defendant, and the plaintiff is not entitled to recover against the defendant on a claim founded upon said altered subscription; ” which instruction the court refused to give to the jury; but in lieu thereof instructed the jury: “ ^hat if the defendant subscribed two shares to the stock of the plaintiff, and afterwards, without his knowledge or consent, such subscription was so altered as to purport to be a subscription for three shares of said stock, the jury could not, on the issue in this case, find a verdict against the defendant for the value of three shares of said stock on said subscription; but if the jury find, from the evidence, that the defendant subscribed two shares of said stock, it would be their duty to find in favor of the plaintiff, on the issue joined on the first 'cause of action for the value of two shares of said stock, on account of said subscription, notwithstanding the said subscription was afterwards, and without the knowledge or consent of the defendant, altered so as to indicate a subscription for three shares of said stock,” to which instructions given, and to the refusal to instruct as requested, the defendant excepted.
    The jury returned a verdict in favor of the plaintiff, for three shares of stock at $50 each, and for interest on the amount thereof, $31.45, making together the sum of $181.45.
    The defendant filed a motion for a new trial, which was overruled, and the ruling excepted to.
    Judgment was rendered by the court upon the verdict and a bill of exceptions, containing the evidence, the instructions refused, and the charge as given, was allowed, signed, and sealed by the court, and ordered to be made part of the record in the case.
    On a petition in error, filed by the present plaintiff in the District Court, the judgment of the Court of Common Pleas was affirmed, and hence this motion.
    
      William Sample, for the motion :
    The burden was on plaintiff to explain the alteration of the contract. Huntington v. Finch, 3 Ohio St. 449 ; 4 Ohio St. 60; 21 Ohio St. 171; 6 Cush. 314; 1 Greenl. Ev., sec. 564; 2 Parsons on Oont. 720.
    
      Nicholas ti¡ James, contra :
    The alteration must have been fraudulently done by the party interested in enforcing the contract to render it void. Fullerton v. Sturges, 4 Ohio St. 535.
   Rex, J.

The errors assigned by the plaintiff in error in the District Court, as grounds for the reversal of the judgment of the Court of Common Pleas, are :

1. The verdict is not sustained by sufficient evidence, and is contrary to law.

2. The court erred in its charge to the jury.

3. The court erred in refusing to charge the jury as requested by the defendant.

There is no question made in the arguments of counsel as to the right of the defendant in error to recover on the second cause of action set out in the petition; but as the verdict is general, and was intended to respond to all the issues made in the case, it can not be separated and portions of it applied to each of the causes of action set out in the petition. It must, therefore, either be affirmed or reversed as an entirety.

The remaining question is : Are the points made by the plaintiff in his assignment of errors well taken ?

We are of opinion that the answer puts in issue the execution of the contract counted on in the first cause of .action. The case, therefore, turns upon the correctness of the instructions given to the jury by the court, and on the refusal of the court to instruct as requested.' We think the j nry should have been instructed as requested by the •defendant below; and we also think there was error in the instructions given.

Under the instructions given, the jury was authorized to return a verdict in favor of the plaintiff', for the. amount of the two shares of stock subscribed by him, notwithstanding the fact that the subscription was altered to three shares without the knowledge' or consent of the defendant, and notwithstanding, also, that the alteration was fraudulently made by the plaintiff-, or under its direction.

In order to authorize a recovery for two shares of stock upon the altered subscription, it was incumbent upon the plaintiff to show that the alteration was made without its knowledge or procurement. In the absence of such showing, the alteration being a material one, the defendant might well insist that the subscription sued on was not his. contract, and might also insist that he was no longer bound for the two shares which he actually subscribed. The motion will therefore be granted, the judgments reversed, and the cause remanded.

Judgment accordingly.

Welch, C. J., White, Gilmore and McIlvaine, JJ., concurred.  