Junction R. Co. v. Reeve

• Decision Date: 08 December 1860
• Citation: 15 Ind. 236
• Parties: The Junction Railroad Company v. Reeve, Administrator of Daily
• Court: Indiana Supreme Court

15 Ind. 236

The Junction Railroad Company v. Reeve, Administrator of Daily

Supreme Court of Indiana

December 8, 1860

APPEAL from the Fayette Common Pleas.

The judgment is affirmed, with costs.

J. C McIntosh and C. B. Smith, for appellant.

B. F Claypool, for appellee.

OPINION

Worden, J.

This was a suit by the appellant against the appellee, upon two several subscriptions to the capital stock of the company, made by the defendant's intestate.

The first was a cash subscription, and need be no further noticed.

The second subscription is as follows, viz:

"We, whose names are hereto subscribed, do each agree to take the number of shares set opposite our names, of the capital stock of the Junction Railroad Co., at fifty dollars for each share, to be paid in real estate in Indiana or Ohio, at a valuation to be affixed by three disinterested appraisers, to be appointed by the board of directors, and to be conveyed to the company by deed in fee simple, free from all encumbrance, within one year from the first election of directors. A failure to convey the real estate, as above specified, shall render this a cash subscription, and the amount shall be paid on the same terms as stock subscribed to be paid in money.

Names.

No. of Shares.

Amount.

Wm. Daily.

22.

$ 1100.00.

"Mr. Daily subscribes for the above, to be paid by the conveyance to the company of one quarter section of land in Delaware county, about five or six miles from Muncietown. If the company should not take the land at that price, this subscription to be void.

(Signed,) "William Daily."

The paragraph of the complaint based upon this subscription, avers that the plaintiff "elected to take the said quarter of land at the price fixed by said decedent in his said agreement," but that the decedent, though often requested, failed and refused to convey, &c.

This paragraph was answered by denial; also, by other pleading, which we deem it unnecessary to notice specially.

There was a trial of the cause by the Court, and a finding and judgment for the plaintiff for the amount of the cash subscription only.

The appellant seeks to reverse the judgment, because the amount found by the Court did not embrace the real estate subscription. The necessary steps were taken to present the question involved, and the evidence is set out.

On the trial below, a question arose under the issues, whether or not the deceased had consented to the consolidation of the Junction Railroad Company, with the Ohio and Indianapolis Railroad Company, and the evidence upon this point is discussed by counsel in this Court, at length. We need not determine, however, whether we deem the evidence sufficient to prove such consent, as we are of opinion that upon another point the plaintiff failed to make out his case, under the general denial, in respect to the real estate subscription, and therefore, that the motion for a new trial was properly overruled.

The subscription in question was clearly conditional; or rather, it was a simple proposition to put in the land at the specified price, in case the company would take it at that price, otherwise the subscription was to be void. Until the company agreed to accept it at the price named, there was no binding obligation upon Daily. Until it was so accepted there was no mutuality in the supposed contract. The case of The Boston and Me. Railroad v. Bartlett, 3 Cush. 224. Is directly in point. There, the defendants had agreed, in writing, to convey to the company a certain parcel of land for the sum of $ 20,000, if the company would, within thirty days, take the same. The Court say, "though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance; and, during the whole of that time, it was an offer every instant, but as soon as it was accepted, it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right in saying that the writing, when made, was without consideration, and did not therefore form a contract. It was then but an offer to contract; and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which constitutes, and is the definition of, a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting in order to perfect a valid contract on the part of the defendants. It is precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once."

We have seen that the plaintiff alleged in the complaint an acceptance of the proposition by the company. This allegation, as well as all others, is traversed by the general denial. The burthen of proving this averment was on the plaintiff, and it only...