Saginaw, T. & H. R. Co. v. Chappell

• Decision Date: 28 January 1885
• Citation: 22 N.W. 278,56 Mich. 189
• Parties: SAGINAW, T. & H.R. CO. v. CHAPPELL.
• Court: Michigan Supreme Court

22 N.W. 278

56 Mich. 189

SAGINAW, T. & H.R. CO. v. CHAPPELL.

Supreme Court of Michigan

January 28, 1885

Error to Saginaw.

Tarsney & Weadock, for plaintiff.

Winsor & Snover, for defendant and appellant.

CHAMPLIN J.

The plaintiff sued Chappell to recover his subscription of $500 to the following paper: "For and in consideration of the construction of the Saginaw, Tuscola & Huron Railroad from East Saginaw through the counties of Saginaw, Tuscola, and Huron to the village of Sebewaing, in the county of Huron, we agree to pay to the order of E.T. Judd, treasurer of said company, the sums set opposite our respective names, within thirty days after the rails shall be laid from said East Saginaw to the said village of Sebewaing, in the county of Huron. We also agree to sign a note of like import and terms when requested to do so by the said railroad company. Sebewaing, Huron Co. Mich., March, 1881." The subscription of the defendant to this paper was admitted; and it was also admitted that the railroad was completed from East Saginaw to Sebewaing more than 30 days before the suit was instituted. The principal ground of defense was that the paper, when signed, was deposited with one Liken, who had acted in taking the subscription at the request of the president of the company and that in his hands it was subject to certain expressed conditions regarding the location of the road and its depot at Sebewaing, which had not been complied with so as to entitle the plaintiff to the paper. Incidentally, it came out on the trial that the defendant had subscribed to $500 of the capital stock of the company, which he understood was to take the place of the first subscription, but which he afterwards repudiated on the claim that the conditions under which the subscription was made were not observed by the company. This suit was then instituted.

Defendant being a witness on his own behalf, was asked by his counsel the following question: "At the time you signed that subscription of aid, on Sunday, the thirteenth day of March 1881, what occurred between you and Mr. Liken in regard to your giving that aid?" This was objected to, and the court ruled that defendant must first show Liken was authorized to make a stipulation for the company, or that the company accepted the stipulation subject to conditions not expressed in it. Counsel then stated that he proposed to show that it was not to be treated as a subscription; that defendant's name was to be stricken from the subscription list, unless the route of the road and the location of the depot were satisfactory; that no contract was ever completed. The court then inquired: "Do you propose to show that the subscription was left with Mr. Liken to be by him delivered to the company?" Counsel replied: "We propose to show that Mr. Liken had the subscription in his possession all the time; that he was the custodian of it all the time it was being signed; and that it continued in his possession until after the merger. We propose to show that it, being in Liken's custody when this defendant signed, the understanding was that it was not to be binding; that it was not to be delivered; that his name was to be stricken from it unless a particular route of the road and location of the depot were satisfactory to the company, for whom Mr. Liken was then taking the subscription." We propose to show that the railroad company never saw this aid subscription until June, after the merger into stock; and that the contract for the construction of the road was made in June, 1881; that the company never relied on this subscription, or had seen it up to that time, and never acted upon it for months after the construction of the road was commenced." By the Court. "I think the testimony is not material, unless you first show that Mr. Liken was acting as agent for the railroad company. If he was simply a citizen there at Sebewaing equally interested there with Mr. Chappell and others, and they were together securing a subscription to induce a company to build a road there, and the defendant, under those circumstances, gave Mr. Liken his subscription on the condition that...