Northern Central Michigan Railroad Co. v. Eslow

• Decision Date: 21 January 1879
• Citation: 40 Mich. 222
• Court: Michigan Supreme Court
• Parties: The Northern Central Michigan Railroad Company v. Champion Eslow et al

40 Mich. 222

The Northern Central Michigan Railroad Company v. Champion Eslow et al

Supreme Court of Michigan

January 21, 1879

Submitted January 14, 1879

Error to Calhoun. Submitted Jan. 14. Decided Jan. 21.

Judgment affirmed with costs.

Rienzi Loud for plaintiff in error. The completion of a railroad furnishes a consideration for a promise made by subscribers to pay money to the company on condition of its proceeding to build. Cottage Street M. E. Church v. Kendall, 16 Amer. Law Reg., 546, n.

William H. Brown, John C. Patterson and A. M. Culver for defendants in error.

Cooley J. The other Justices concurred.

OPINION

Cooley J.

This is an action to recover a subscription of one thousand dollars made by the defendants to the following paper:

"We the undersigned, in consideration that the Northern Central Michigan Railroad Company shall proceed to the building of said road, hereby agree to pay to said company,--for which we shall have paid up stock of the company,--the amount set to our names, to be paid 20 per cent a month, beginning when the work shall have commenced. Dec. 27, '69."

In Parker v. Northern Central Michigan R. G. Co., 33 Mich. 23, another party was sued upon a subscription made to this instrument, and the court, in an opinion by Mr. Justice Campbell, held that there could be no recovery. The instrument, for reasons there fully explained, was not a valid subscription to stock, and at most it could only constitute an offer by the subscribers to the railroad company, which it was neither averred nor proved that the railroad company had ever accepted or acted upon.

In this case an attempt is made to avoid the force of the previous decision. The first count of the declaration avers that the defendants and certain other persons were desirous that the plaintiff should construct a railroad from Jonesville to Albion, and thence to Lansing, for the benefit of themselves severally, and that defendants, in consideration that plaintiff should proceed to construct said road, and for the purpose of effecting said object, and in consideration that certain persons did subscribe their names to the paper above recited, did themselves subscribe and promise to pay the sum of one thousand dollars. It then avers that afterwards, on the 18th day of August, 1871, "the said defendants, still being and remaining subscribers as aforesaid, and no part of said sum having been paid, and the said defendants still being indebted to said plaintiff in said sum as aforesaid, the board of directors of the said plaintiff, at a lawful meeting thereof then held, did, for the purpose of constructing, operating and maintaining its said railroad, make, pass and adopt a resolution in substance as follows, to-wit:

At a meeting of the board of directors of the Northern Central Michigan Railroad Company, held at Odd Fellows' Hall, in Albion. Minutes of last meeting read and approved. Present, directors Irwin, Brockway, Galery, Landon, Hollingsworth and Riblet. On motion, each director, from their locality, be called upon to report the amount raised for grading said road. Jonesville, $ 10,000; Litchfield, $ 25,000; Homer, $ 18,000; Albion, $ 55,000; Springport, $ 17,150; Eaton Rapids, $ 19,105; Winsor, $ 2,000; Lansing, $ 10,000. On motion a committee was appointed to examine notes and subscriptions. The board took a recess until 7 1/2 o'clock in the evening.

Board called to order by President. Present, a full board except Hart and Baxter. After which Mr. Brockway introduced to the board Mr. Johnson, as agent for J. Condit Smith. On motion that the board accept of Springport, in addition to what had been reported in full, $ 1,500 more, the board...