
    David Gibson v. The Columbia and New Richmond Turnpike and Bridge Company.
    1. Where a turnpike company was incorporated in February, and organized under its charter in March, and opened stock subscription books in April of the same year, and the next year commenced the work of constructing its road, and by the end of the fifth year completed about one-third of it, and made no progress in the manual labor of constructing the road for the next four years, but completed the entire road in the succeeding four years, being in all about thirteen years from the date of the company’s charter— this can not properly be regarded as an abandonment of the enterprise, when the board of directors of the company did not intend to abandon it, but continued to hold meetings regularly and to make efforts to obtain subscriptions to the stock of the company, and progressed with 'the work as fast as their means would permit. And payment of stock subscribed for when the books were first opened, can n'ot be resisted on the ground that the road was not built within a reasonable time.
    
      '% A right of action to recover installments of a subscription to the capital stock of such company, made in 1849, but not called for until 1861, did not accrue until such call was made; and such right of action being upon a promise in writing, the limitation is fifteen years.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The Columbia and New Richmond Turnpike and Bridge Company was incorporated by the general assembly of the State of Ohio, by special act, passed February 21, 1849. David Gibson is named in the act as one of the eoiporators, but without his knowledge or consent. The object of the corporation, as its name imports, was the construction of a turnpike from Columbia, in Hamilton county, to New Richmond, in Clermont county, a distance of ■about seventeen miles.
    The company was organized March 28, 1849, and books for the .subscription for stock were opened April 28th of that year.
    In 1849, Gibson subscribed for ten shares, of fifty dollars each ■*of the capital stock of the company. A condition appended [397 to his subscription stipulated that the money subscribed should be expended on the east (New Richmond) end of the route, where Gibson then resided and owned a large distillery. It further appears that this subscription was obtained on the representation that' the road was to be immediately constructed.
    
      The construction of the Columbia (western) end of the pike was-' commenced in 1850. In 1854, about one-third of the road had been finished and used by the public, and the entire road was completed by December, 1862. From 1854 to 1858, there was no progress-made in the manual labor on the road, because it was found impossible at that time to get subscriptions to the stock of the company on the middle part of the road, on account of the poverty of many of the settlers ; and although many of the stockholders talked,, among themselves, that the east end of this road could not be built,, yet the board of directors never relinquished the enterprise, but, continued to meet regularly, and all the time did what they could' to get subscriptions, and were finally successful. The company had,, during the time from 1854 to 1858, subscriptions sufficient to build, the east end of the road, but did not deem it best to put that portion of the road under contract until the middle part was built, lest they might fail to obtain subscriptions on that part from persons who would conclude that, as the ends of the road were constructed, the company would, without their aid, go on and complete the intermediate portion to make the road of any use.
    Although Gibson subscribed for the ten shar*es of stock in 1849, no call was made upon him for payment until in January, 1861, about the time the east end of the road was put under contract.
    Long before this, Gibson removed from New Richmond, and had no interest in the construction of the road, except he continued to-own the distillery there.
    The original action was brought in February, 1865, by the company to recover of Gibson the several installments of his subscription with interest.
    Ho defended on two grounds :
    398] *1. The company was bound to construct its turnpike within a reasonable time, and failing so to do, he had the right to’ consider the project abandoned and himself released from the obligation of his subscription.
    2. The company’s right of action is barred by the statute of limitations.
    The Superior Court gave judgment for the company.
    
      Hoadly, Jackson & Johnson, for the motion, argued:
    1. That the first defense is a good one, and is sustained by the.facts. Ang. & Ames on Corp., sec. 542.
    
      2. That as the subscription was made in 1849, and suit was not instituted until in 1865, a period of more than fifteen years had elapsed. That though the amount of subscription was not payable until after a call had been made, yet when the call was made, it reverted back for its binding force on defendant to the original promise to pay made in 1849. See Fountain Ferry Co. v. Jewell, 8 Monroe, 142.
    H. Haacke, contra, argued:
    1. That the company did not abandon the enterprise, but constructed the road in a reasonable time. New Albany and Salem Railroad v. Fields, 10 Ind. 187; Hardy v. Merryweather, 14 Ind. 203; Bish v. Bradford, 17 Ind. 490; Brownlee v. O. R. R., 18 Ind. 68; Parker v. Thomas, 19 Ind. 213; Goodrich v. Reynolds, 31 Ill. 490.
    2. That the claim of the company is not barred by the statute of limitations, because the statute did not begin to run until demand was made on stockholders, in January, 1861. Little v. Blunt, 9 Pick. 488; Codman v. Rodgers, 10 Pick. 112; Pittsburg and Connellsville R. R. Co. v. Byers, 32 Penn. St. 22; 36 Penn. St. 77 ; Thorpe v. Booth, Ryan & Moody, 388; Sinkler v. Turnpike Co., 3 P. & W. 149; Howland v. Edmonds, 24 N. Y. 307; Alabama R. R. Co. v. Romley, 9 Fla. 508 ; Redfield on Railways, 82 (sec. vi., §52) ; Ross v. Lafayette and Ind. R. R. Co., 6 Ind. 297.
   By the Court.

1. The company did not abandon the enterprise-for which it was incorporated. It promptly organized under its-charter *and opened books for subscription to the capital [899 stock, and commenced the construction of its road the next year, and in 1854 about one-third of it was completed; and although there was no manual labor done on the road from 1854 to 1858, it was for want of means to finish it. The enterprise was not given up, but the board of directors continued to hold regular meetings, and to make efforts to procure subscriptions enough to enable them to complete the road. Under this state of fact, we are of opinion that the company can not be held to have abandoned the enterprise, but to have constructed the road in a reasonable time — that is, as-soon as means could be obtained to do it with.

2. The company’s right of action is not barred by the statute of .-■limitations. It did not accrue until a call was made, in January, 1861, for payment on the subscription, and being on a promise in -writing, the limitation is fifteen years.

Motion overruled.  