Wallace v. Townsend

• Citation: 43 Ohio St. 537,3 N.E. 601
• Parties: WALLACE v. TOWNSEND.
• Decision Date: 17 November 1885
• Court: United States State Supreme Court of Ohio

43 Ohio St. 537

3 N.E. 601

WALLACE

v.TOWNSEND.

Supreme Court of Ohio.

Filed November 17, 1885.

Error to district court, Jefferson county.

The Cleveland, Tuscarawas Valley & Wheeling Railway Company brought its action in the court of common pleas of Jefferson county, upon the subscriptions set out in the findings of fact, which appear below, against William H. Wallace and Spalding K. Wallace, executors of Henry Wallace, deceased, for the recovery of the amount claimed to be due upon such subscriptions. The trial court, upon the request of each party, stated its findings of fact and conclusions of law separately, as follows:

‘That in the early part of the year 1877, the Cleveland, Tuscarawas Valley & Wheeling Railway Company, being a railroad company duly incorporated under the laws of the state of Ohio, owning and operating a railroad from the mouth of Black river, on Lake Erie, to Urichsville, in Tuscarawas county, and contemplating an extension of its road beyond Urichsville, proposed to make such extension, by way of the valley of Stillwater and the valley of Wheeling creek, to the Ohio river at Bridgeport, opposite the city of Wheeling, provided that subscriptions to the capital stock of said company would be made by persons residing along the line of such proposed extension, and in the neighborhood of the southern terminus thereof, aggregating the sum of $250,000. That citizens of Wheeling, knowing of such proposition, and being desirous to promote such extension, held a public meeting, and at such meeting appointed a committee to solicit subscriptions to the capital stock of said company. That Henry Wallace, the testator of the defendants, then in full life, was present at the meeting, and thereafter, at the solicitation of said committee, subscribed, in a book furnished by the committee, a paper writing, of which the following is a copy: ‘We, the undersigned, do hereby respectively subscribe to the capital stock of the Cleveland, Tuscarawas Valley & Wheeling Railway Company the number of shares, (50) fifty dollars each, we have set opposite our respective signatures, upon the conditions that the contemplated extended line of the railroad of said railway company shall be located in the valleys of Stillwater and Wheeling creeks to the Ohio river, in the town of Bridgeport, Ohio, opposite the city of Wheeling, and thence along the west bank of said river to a point on said river in the town of West Wheeling, Ohio; and as soon as said railroad shall be so located, and the work of construction commenced in Wheeling Creek valley, we agree to take the number of shares aforsaid, and then agree to pay five (5) dollars on each share of said stock so by us subscribed, and the residue thereafter in such installments and at such times and places as may be required by the directors of said company; but said installments shall not exceed ten (10) per cent. per month from the time when said first payment shall become due as aforesaid. It is hereby further conditioned that these subscriptions shall not be binding unless the work of construction shall be commenced on or before July 1, 1877. [Signed] H. WALLACE, 20 shares,’-and delivered said book to said committee; such paper writing having been previously subscribed by divers other persons. And said Henry Wallace afterwards, at the solicitations of said committee, subscribed, in another book furnished by the committee, another paper writing, of which the following is a copy: ‘We, the undersigned, do hereby respectively subscribe to the capital stock of the Cleveland, Tuscarawas Valley & Wheeling Railway Company the number of shares set opposite our names, of fifty dollars each, on the conditions that said railway shall be constructed to the Ohio river opposite the city of Wheeling, by the valley of Wheeling creek; and as soon as the work of construction is commenced of said railway on said creek, before July 1, 1877, we agree to pay five dollars on each share so subscribed, and the residue thereafter in such installments, at such times and places, and to such person or persons, as may be required by the directors of said railway; but said installments shall not exceed ten per centum per month after said first payment shall become due as aforesaid. Wheeling, West Va., March 1, 1877. [Signed] H. WALLACE, by D. C. L., 20 shares,’-and delivered said last-mentioned book to said committee; such last-mentioned paper writing having been previously subscribed by divers other persons. Afterwards the said Henry Wallace departed this life; said books still remaining in the custody of said committee. After the death of said Henry Wallace, and all the subscriptions to the capital stock of said company which could be procured along the line of said proposed extension, and in the neighborhood of the southern terminus thereof, had been obtained, and which aggregated a sum less than $250,000, at the instance of surviving subscribers the evidences of all subscriptions which had been so procured, including the books aforesaid, were tendered to said company, and said company accepted the same as subscriptions to the capital stock of the company, and agreed to extend said railroad as had been proposed as aforesaid, and from the town of Bridgeport, along the west bank of the Ohio river, to a point on said river in the town of West Wheeling, Ohio. That at the time when said company accepted said subscriptions and agreed to make such...