Parker v. Northern C. M. R. Co.

• Decision Date: 02 November 1875
• Court: Michigan Supreme Court
• Parties: Charles T. Parker v. The Northern Central Michigan Railroad Company

33 Mich. 23

Charles T. Parker v. The Northern Central Michigan Railroad Company

Supreme Court of Michigan

November 2, 1875

Heard October 19, 1875; October 20, 1875

Error to Calhoun Circuit.

Judgment reversed, with costs, and a new trial granted.

Brown & Patterson and A. M. Culver, for plaintiff in error.

Rienzi Loud, for defendant in error.

OPINION

Campbell, J

Parker was sued on a subscription for stock of the Northern Central Michigan Railroad Company. The subscription was made December 27, 1869, in the following terms:

"We the undersigned, in consideration that the Northern Central Michigan Railroad Company shall proceed in 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 twenty per cent. a month, beginning when the work shall have been commenced." The amount was two hundred dollars. The declaration avers that work was commenced August 1, 1871, and afterwards completed; and that in April, 1872, stock was tendered, and that plaintiff below was ready and willing to perform.

Several questions are presented on the record, the most important of which relate to the nature and consideration of this instrument.

Some points are made upon the preliminary steps for the organization of the company, but we do not regard them as important on this record. The subscription, if valid otherwise, recognizes the corporation, and its existence cannot be disputed.

The principal inquiry is, whether a valid contract is alleged and proven. To establish this it is necessary to show not only a promise by Parker, but a meeting of minds of both parties and a consideration valid in law to maintain the promise.

Under the railroad law in force when this company was organized, the original stock subscriptions were to be made upon books opened by commissioners, and a subscription made in the manner pointed out by law gave the subscribers such a right to stock as bound the company, and furnished a consideration for the undertaking of the parties signing. But it has been held uniformly that the subscribers were only bound when the company was bound, and that no unilateral subscription could be upheld. And as the statute did not create any obligation on the corporation, unless upon subscriptions regularly made, no others could be enforced unless they were made upon some actual consideration or agreement binding the company.--See Carlisle v. Saginaw Valley & St. Louis R. R. Co., 27 Michigan R., 315; Shurtz v. Schoolcraft & Three Rivers R. R. Co., 9 Mich. 269.

It appears in the present case that the subscription sued upon was not taken by commissioners. It must, therefore, if valid, rest on some positive consideration proceeding from the company. And the question arises whether this is alleged or proved.

Upon considering the declaration, which was amended after one jury had been sworn and discharged, and on which there has since been another voluntary nonsuit upon a trial before the one now under review, we may assume it represents the case on which plaintiff below was prepared to rely as to what could be established. And we find the declaration and the proof equally defective in the same direction.

The averments in the declaration fail entirely to make out any contract, and merely show a subscription or promise not alleged to have been within the statute. It alleges merely that Parker signed his name to this paper; and this, with the consideration alleged, is set forth as follows: "that defendant, being desirous that said company should proceed in the building of its road from Jonesville to Albion in this state, in consideration thereof, by the name and initials of C. T. Parker, did subscribe and sign his name to the...