Harney

On July 25, 1911, respondent subscribed in writing for five hundred shares of the common stock of the Tidewater and Southern Railroad Company, for which she agreed to pay five hundred dollars. At that time the railroad company was actively engaged in soliciting subscriptions for stock. The subscriptions were made out in triplicate. One marked “original” was retained by the company, one marked “duplicate” was given to the subscriber, and the other marked “triplicate” was retained by the agent. At the time of this subscription defendant executed her note for five hundred dollars for said stock. The duplicate subscription, retained by respondent, had written on the back thereof the following:

This was not "written upon the original subscription retained by the company.

On March 11, 1912, the Tidewater and Southern Railroad Company consolidated with the Tidewater and Southern Transit Company, and the plaintiff corporation was thereby organized, succeeding to all the property rights of each. The action was brought upon said promissory note and the defendant attacked the consideration for the note, claiming that the sale was conditional and that by the fraud of plaintiff’s agent, the…

In view of appellant’s petition for rehearing a few words may be added to the former opinion. We may concede the rule concerning parol testimony to be as stated by appellant. It is a mistake, however, to assume that we have added or attempted to add anything to the written agreement of the parties. We have simply held—what must be apparent—that under the circumstances of this case the agreement was in effect to cancel respondent’s obligation if she exercised her option within ten months. As to this it may be declared that the contract was so treated and interpreted by respondent and by the president of appellant; it was so represented by the agent and so understood by Miss Harney at the time of its execution, and it cannot be doubted that a cancellation of respondent’s obligation by appellant would have been essentially a compliance with the corporation’s agreement. This necessarily follows from the fact that the contract was executory, and respondent promised to pay the same amount for the same number of shares of stock as appellant. The stock was never delivered to respondent and she made no payment therefor, but simply gave her promissory note. Suppose appellant had kept its…