#### RALEIGH IMPROVEMENT COMPANY v. W. J. ANDREWS et al.

(Filed 22 October, 1919.)

Contracts — Corporations—Subscription to Stock — Abandonment—Evidence— Trials.

Upon tbis petition to rehear, the Court adheres to its former opinion (176 N. 0., 281), except to permit, on the next trial, the defendant to offer evidence of abandonment of the building for which the plaintiff was incorporated, and brings action to recover balance of defendant’s subscription to the shares of stock; and the petition is dismissed.

PetitioN to rehear.

J. G. Biggs and Willis Smith for plaintiff. ■ .

J. S. Manning and A. B. Andrews, Jr., for defendants.

Beown, J.

This is a petition to rehear this cause decided at Fall Term, 1918, and reported in 176 N. C., 281. Upon careful consideration of the case, we adhere to all that is said in our former opinion, except to the extent that on the next trial the defendants may offer all evidence of abandonment which they may have, irrespective of what is said in paragraph number 2 of our former opinion. We will not undertake to say that there is no evidence of an abandonment of the purpose to erect an apartment house. At the time the subscription to the stock was made, on 17 February, 1914, it is not contended that the purpose to erect the apartment house had been abandoned. It is claimed that it was abandoned later on in the year 1915. We leave this as an open question to be determined at the coming trial.

In our former opinion we said: “It is true that on being satisfied that stockholders have paid in an amount equal to their engagements, so as to make .the burden equal amongst them all, a court of equity will sometimes interfere in case of an abandonment of the undertaking to prevent further calls upon such stockholders, but no such conditions appear to be presented upon'this record and no such equitable relief is asked.”

*329This question of abandonment- becomes important in case tbe defendants desire to ask equitable relief upon tbe grounds set out in tbe opinion, and if so, they will be allowed to file additional pleadings setting it up, in wbicb case proper issues may be submitted to -tbe jury.

Petition to rebear dismissed.