Scarce, who was the plaintiff, brought this action against the railway company, alleging, in his complaint, these facts: In September, 1853, and previous thereto, the plaintiff was indebted to the company $3,000, for capital stock by him subscribed and taken. At the same time, he was the owner in fee simple of a tract of land in Hendricks county, (describing it,) which he offered to sell, in order to realize means of paying for the stock so taken. After this, the company, by one Henry G. Tod, her agent, proposed to the plaintiff, that he should subscribe one hundred and sixty-lour shares of additional • stock of the company, at $50 each, and in payment therefor, convey to her the land described. This he refused to do, because, as alleged, he had reserved the land for the purpose of sale, and the application of its proceeds to the payment of the previous cash subscription of $3,000. Thereupon the company, by her agent, for the purpose of cheating and defrauding him in that behalf, and fraudulently inducing him to subscribe such additional stock, falsely and fraudulently represented and agreed, that if he would take the additional stock and *194convey the land to the company, she would not ask or demand payment of the $3,000, the cash subscription, until she had completed her road. And said agent then represented that was authorized by the company’s board of directors to make such agreement. It is averred that the plaintiff con-tiding in said representations, and believing them to be true, Avhen in truth they were false and fraudulent, did, as proposed by said agent, subscribe for one hundred and sixty-four shares of stock, of the estimated value of $8,200, and in payment therefor, and in consideration that the company would forbear the collection of said $3,000 until her railway was completed, he did convey the land described to the company, which was, and is, of the value of $8,200. And the plaintiff' in fact says, that the company failed to forbear the collection of the $3,000, as stipulated by her agent; but has sued, and recovered a judgment for the same, and has assigned the judgment so recovered, to one Butler, who is pressing the collection thereof by execution, although the company has not, as yet, completed her road, or any part of it. And further, it is averred that the plaintiff, prior to the institution of this suit, tendered back to .the company the one hundred and .sixty-four shares of the stock, and demanded a reconveyance of the land, &c.
The relief prayed for is, that the contract whereby the plaintiff'so parted with his land for stock, be rescinded; that the company be ordered to reconvey the land to the plaintiff, and that other relief be granted, &.c. And further, the plaintiff demands damages, &c.
As we have seen, the fraudulent representations alleged in the complaint, do not refer to any tact existing at the time they were made; but they relate, alone, to the stipulation to forbear the collection of the $3,000, until the railway was completed. These representations can not, therefore, have any effective bearing in the consideration of this case; because the company had full power to comply with her agreement to forbear, and having failed to do so, Avas, without reference to any such representations, simply guilty of a breach of contract. Has the plaintiff, in view of the alleged facts, an appropriate remedy? This is the only question to settle *195in the case. The appellee contends that the plaintiff’s claim for relief, if he ever had any, was against the action of the company for the recovery of the first subscription. This position is not strictly correct. True, the contract to forbear . being; in this instance, founded upon a valid consideration, the plaintiff might, perhaps, have set it up in defense of that action. Evidently, he could have enjoined the collection of the $3,000, until the railway was completed. But having failed to make any resistance to the suit for the first subscription, he is not, it seems to, us, entitled to a rescission' of the contract. The plaintiff, however, should not be adjudged remediless. The company, having broken her contract, by proceeding before the completion of her road. to> enforce the collection of the $3,000, is obviously liable to an action for the recovery of damages. And, in our judgment, the complaint before us contains facts sufficient to authorize such recovery. And, as the measure of damages for the breach must depend upon the facts proved on the trial, we can not now say what that measure should! be. In our opinion, the demurrer should have been overruled; and the result is, the judgment must be reversed.
J. M. Gregg and P. S. Kennedy, for the appellant.
J. Morrison, C. O. Nave and J. WitJierow, for the appellee.
Per Curiam. — The judgment is reversed, with costs. Cause remanded, &c.