osition that there could be no recovery on account of physical injuries from fright, without giving the matter much more study and consideration than we have given it in this case. There are authorities to that effect, many of them decisions that are entitled to great respect; but it seems to us at first blush, and indeed after such consideration as we have given it, to be a harsh rule, and perhaps not in entire harmony with other rules upon the subject, though it may be the law. We might, if we were required to pass upon the question, find ourselves obliged to follow this line of decisions. It would seem, as I say, to be a harsh rule, to say that one suffering from fright in consequence of the negligence of another, if that fright resulted directly in a physical injury, as for instance a rupture of the heart or of a blood vessel, or paralysis, or some similar functional disorder, could not recover on account thereof; and yet it is conceded that for a mere physical injury, as for instance an injury produced by something coming in contact with the body, whereby there would be a contusion or an abrasion, or any other injury to the tissue or substance of the body, no matter how trifling, there might be a recovery, and such injury would let in proof of, and enable one to recover on account of other injuries resulting from the fright. But as I say, we do not feel obliged to pursue this inquiry or to decide upon this question of law, because the answer of the jury to the second interrogatory excludes it all. It is sweeping. It is to the effect that there was no physical injury resulting from this fright; that whatever injury the plaintiff suffered was from the fright, and that such injury was not physical; that therefore if she suffered any injury it must have been in the nature of distress of mind consequent upon the fright; and we think that the authorities are clear, uniform and consistent, to the effect that for such distress of mind standing alone, i. e., when that is the only injury resulting from the negligence, there can be no recovery. That leaves for consideration the question whether this general verdict and this answer to the second interrogatory are against the weight of the evidence. I will not undertake to discuss the evidence, and shall content myself with saying that National Bank v. Fence Post Co. et al. [Vol. III, N. S. we can not find the conclusions of the jury are contrary to the weight of the evidence. The verdict and judgment, therefore, will be affirmed. Southard & Southard, for plaintiff in error. Smith & Baker, for defendants in error. FRAUDULENT SALE BY A PROMOTER. [Circuit Court of Darke County.] SECOND NATIONAL BANK V. GREENVILLE SCREW-POINT STEEL FENCE POST CO. ET AL. Decided, November 18, 1899. Corporation-Sale of Property to at a Profit-The Seller a Promoter and Trustee of the Profit Derived, When-Fraud Must be Shown by Clear Evidence-Liability of the Promoter-The Remedy. 1. One may sell his own property to an association of individuals or a corporation at any price he may see fit and the purchaser is willing to pay, without regard to the profit he may thereby derive or the fact that he is himself a stockholder, provided only that no false representations are made. 2. But where the object in view is the formation of a company for the purpose of selling to it property belonging to another, at a price largely in excess of what the owner is to receive, the one thus negotiating becomes a promoter and occupies a fiduciary relation toward the company, and is bound to disclose his relation to the property it is proposed to purchase. 3. Suppression or concealment of material facts in such a connection is a fraud on the company, and renders the promoter liable as trustee for the profits thus wrongfully made. 4. Fraud of this character must be shown by clear and conclusive evidence, and can not be based on suspicion. 5. Three courses of action are open to a corporation thus fraudulently dealt with. They may restore the promoter to his original situation, rescind the contract and recover the money wrongfully made; or they may offer to restore, and by keeping the offer good sue in equity for a rescission and recovery; or the stockholders may join to charge the guilty parties as trustees of the profits thus withheld and for an accounting. SULLIVAN, J.; WILSON, J., and SUMMERS, J., concur. Appeal. The defendant, The Greenville Screw-Point Steel Fence Post Company, a corporation, was incorporated under the laws of Ohio, and organized and entered upon the business for which it was formed in June, 1895. For reasons not necessary to be stated here, the corporation in the following year, was, upon the petition of a part of the stockholders, dissolved, its affairs. wound up and its debts paid in full. The evidence set forth in the transcript of the testimony shows that W. K. Clyne, of Miami county, Ohio, on April 18, 1893, obtained letters patent for an improvement in fence posts, which consisted chiefly of a screw-point attached to the end of the post inserted in the ground. That on November 5, 1894, he entered into a written contract with the defendant, H. D. Tilman, in which it was agreed that Tilman was to sell territory and posts, with the improvement covered by said patent, for Clyne, and to return to Clyne onehalf of the proceeds of such sales. That some time in March, 1895, Tilman (whether in conjunction with Clyne or not does not appear affirmatively from the evidence) conceived the notion of associating a number of parties together as partners, for the purpose of buying this patent, to sell territory and also manufacture the post for sale. Thereupon an instrument was drawn up, which recited that the subscribers thereto were to become "co-partners" under the firm name of "The Clyne Screw-Point Post Company," for the purpose of carrying on together the business of manufacturing and selling posts and territory, with the understanding that the territory was to cost $15,000." The contract provided that each party was to pay the amount set opposite his name signed upon this instrument. That the number of shares should be fifteen, and of $1,000 each. This agreement was not to be binding upon any subscriber unless all the shares were subscribed. Before the number of shares had been subscribed, those who had signed were notified to appear at the court house in Greenville on June 8, 1895, for the purpose of organizing or launching the partnership. By whom National Bank v. Fence Post Co. et al. [Vol. III, N. S. such notice was given does not satisfactorily appear, but it is immaterial by whom, in view of what occurred between the parties at that meeting. After the parties came together, they concluded to abandon the plan of a partnership and form a corporation; thereupon the necessary steps were taken to obtain a charter, and all who had theretofore subscribed to the instrument proposing a partnership subscribed respectively the same amount for the capital stock of the corporation. The several subscribers gave notes for their stock, instead of cash, payable in one and two years. These notes up to the sum of $11,250 were made payable to Clyne, $3,750 of the stock being reserved by Clyne. In a settlement between Tilman and Clyne, this stock subsequently became the stock of Tilman. Upon what terms it became the property of Tilman there is a conflict in the evidence of Clyne and Tilman. However, it is wholly immaterial how it became Tilman's under the present status of the case. Whatever was done at this meeting by Tilman appears to have been done with the approval at least of Clyne. The plaintiff, after averring its corporate capacity, sets forth in its petition that the defendant, the Greenville Screw-Point Steel Fence Post Company, on the 15th day of May, 1895, was a corporation duly incorporated under the laws of Ohio and had an authorized capital stock of $25,000, divided into two hundred and fifty shares of one hundred dollars each, of which one hundred and fifty shares had been subscribed, paid up and issued by said corporation, and there were subscribed, paid up and issued, prior to the incurring by said defendant company the indebtedness to plaintiff described in its petition, the name of each subscriber, and the number of shares subscribed for, by each, as set forth. It then avers that on the 15th of May, 1896, the said Fence Post Company, being wholly insolvent, an action was commenced in Darke county common pleas against the same by certain of the stockholders to dissolve said corporation and to appoint a receiver to take charge of its assets and effects. And that such proceedings were thereafter had in said action that said corporation on the 15th of September, 1896, was dis solved, a receiver appointed who converted all the assets of said company into money, paid costs of the proceedings and applied the balance in payment upon the indebtedness of said company, and after applying said balance there still remained due and unpaid an indebtedness against said company of $1,650, of which sum there was due and owing plaintiff a balance of $941.44, for money loaned to said company, and for which said company had executed its notes to plaintiff. The plaintiff then set forth, so far as known, the names of all other creditors of said company. Plaintiff averred that by reason of the premises the defendant stockholders named became liable to plaintiff and the other creditors of said company to an amount, equal in amount to the stock owned by each. Wherefore it prays that the creditors of said company and the amount due each might be ascertained by such method as the court should direct; determine the amount in which each of the stockholders is liable to plaintiff and other creditors of the company, and that the court order the payment of such amount by each stockholder for the purpose of paying said claims, and all other relief as in equity the circumstances of the case may require. The cross-petition filed by the receiver in this case, and upon the averments of which arise the issues to be determined, after setting forth that the corporation had been dissolved, its affairs wound up and all its debts paid, charges that the defendants, Tilman, Armstrong, Halderman, Van Lue and Eidson, combined and confederated together for the purpose of cheating and defrauding all other parties who had become, or might become, stockholders in said corporation. That the fraud which they together had perpetrated upon their co-stockholders and members of said company consisted in having falsely represented to their associates that the improvement they were purchasing was a valuable invention, and that it could not be purchased from Clyne for less than $15,000, and that they had procured said Clyne to sell the same to the company for that sum, and falsely represented that Clyne had agreed if they could raise $10,000 and that he would remain interested with them to the extent of $5,000 and that thereafter he, Clyne, would dispose of this amount to such persons as the other stock |