
    State of Ohio v. David Collins.
    State can sustain an action on promise in writing to commissioners of the-canal fund.
    Where the stipulation is to pay money or land, “ on condition the canal passes through Chillicothe,” the money within three years, or the land six months-after location, final location of the canal fixes the rights of the parties.
    Hot necessary to prove the organization of a board of canal commissioners in a suit connected with the official action of that board.
    Hot necessary to prove the construction of the canal, where defendant has made a contract dependent on that event.
    Written agreement to pay money, “ on condition that the canal passes through the town of Chillicothe,” is not affected by proof that defendant understood it should pass on a particular line, without allegation of fraud in. obtaining the agreement.
    This was a motion for a new trial, reserved for decision from the county of Ross.
    
      *The suit was assumpsit upon the following writing: “We, [127' the subscribers, agree to pay or convey to the commissioners of the canal fund, for the use of the canal fund, the sums of money or real estate attached to our respective names, on condition that-the canal passes through the town of Chillicothe. The sums of money subscribed, are to be paid at the convenience of the purchasers, at any time within three years from this date; the conveyances of real estate are to be made within six months after the-line of the canal, passing through the town is put under contract.Chillicothe, December 1, 1825.
    (Signed,) “ David Collins, two hundred dollars in land at cash-value, or cash.”
    The case was tried by a jury; a verdict was found for plaintiffe. The following reasons are assigned to support this motion for a new trial:
    1. That the subscription paper does not show any contract; or' if any, it is variant from the declaration.
    2. The evidence does not show the contingency happened by which the money fell due.
    3. No evidence was offered to show the existence of any board of canal commissioners.
    4. No proof of notice to defendant of the completion of the canal;-
    5. The rejection of the defendant’s testimony.
    James Worthington, in support of the motion for a new trial :•
    1. The defendant insists that this supposed, contract is void, because one of the parties named therein (the fund commissioners) had no power, either from the express terms of the statute, or from the nature of their duties, to make such a contract. The-state, whose agent they assumed to be, would not have been bound by any stipulations made by them, either individually or as a. board, in relation to the subject matter of the contract. They had no power, as agents of the state, to perform the condition on which depended the obligation of the defendant to pay them money or convey land, viz : the passing the canal through Chillicothe ; nor was it their duty to solicit or receive subscriptions-on behalf of the state; but, on the contrary, all these powers and duties were, by express statutory provision, conferred upon an entirely different board, the board of canal ^commissioners. [128 See 5 Ohio, 62, 63; 23 Ohio Stat. 57.
    
      If, therefore, this paper be a contract, it is a contract with the individual commissioners of the canal fund alone, for it would be. must unjust and unequal for a principal to claim the benefit of a contract made by an agent, whose power to act for him in the subject matter he disavows, and by whose acts in relation thereto he could not himself be bound. Again, this is not the ■contract declared on by the plaintiff. The declaration charges the defendant with having undertaken, etc., to pay to the State of Ohio, etc.
    Such, indeed, is the contract which section 10 of the statute above referred to, 23 Ohio Stat. 57, directs the canal commissioners to enter into with the proprietors of lands near or through which the canal may, or may be proposed to pass; but the terms of the paper offered in evidence, and purporting to be a contract with “ the commissioners of the canal fund, for the use of the canal fund,” as above recited, are totally variant both from the plaintiff’s declaration and the statutory direction.
    If the defendant is to be held to the written terms of his obligation, it is but fair that for both parties the writing should be •its own interpreter. The fund commissioners are the only obligees named in the subscription paper, and, therefore, with them alone must the contract be presumed to be made. And even if the fund commissioners were duly authorized to make such a contract on behalf of the state, as the subscription purports to be a promise to pay “ to the commissioners of the canal fund, for the use of the canal fund,” belonging to the state, we submit, with great deference and without argument, the following authorities, to show that the action ought to have been brought in the names of the persons with whom the contract was made, and not by the cestui que use 1 Chit. Pl. 3, 4; 1 Liv. 235 ; 13 Johns. 88.
    2. Even if it be admitted that the board of fund commissioners, which was in existence at the date of the subscription paper, was duly authorized to solicit and receive subscriptions, payable ,to themselves, for the use of the canal fund, there was no evidence offered by the plaintiff to prove that they (the fund commissioners), or any other authorized agents of this state, were the individuals with whom the contract was made. Why was this? Was it from the fear that too much might be proved, that the contract 129] was made with persons not authorized to act *on behalf of the state ? This court can not infer that a contract, such as is authorized by law, was made with the agents of the State of Ohio, from a paper which nowhere contains a reference to the State of Ohio; nor can they infer that those agents were duly authorized to act in the premises.
    3. The contract is avoided, even if originally valid, by the neglect or omission of the plaintiff to perform within the stipulated time the precedent condition. In order to simplify the argument on this point, I will suppose that the defendant left himself no option, but subscribed, as did most of the subscribers to the same paper, “ on condition the canal passes through the town of Chillieothe, to pay, etc., within three years from the date of the subscription-paper.” By the testimony of Mr. Price, (engineer), adduced by the plaintiff’s counsel, it appeared that the canal did not pass through • the town of Chillieothe until 1832, or more than six years there- ■ after, although a considerable portion was excavated two years before. Time is an essential ingredient in every contract. Could the plaintiff recover the amount of the subscription before the canal “passed through” Chillieothe? I think it will not be contended-that he could so recover.
    Can the amount, then, be recovered, after more than double the time has elapsed, by a party who thus tardily performs the stipulation which he claims to be the sole consideration of the contract?' The inducement and consideration of the subscription might be an interest for a term of years, in a property which it was expected by the tenant would be benefited by the performance of the condition, or many other cases occur, in which the consideration would. be entirely destroyed by the neglect or delay, for so long a time, of the other party to perform the precedent condition. It is therefore submitted, whether the fair construction of the paper be not that the stipulation as to time is mutual between the parties, and the contract can not be enforced by the party who delays performance for more than twice the time thus fixed.
    It is obvious that in this respect the option of the defendant to pay in land or money, can not alter the mutual obligations of the parties; but,
    4. As the defendant, by his subscription, reserved the right to • pay in land or money, it would seem but fair that he should be notified of the completion of the canal through Chillieothe, and that a demand should be made of him to make his election *as to [130 ■ -the mode of payment, before a right of action could accrue. 1 Ld. Raym. 279; Doug. 14.
    Any other course would deprive him of his reserved right of ■option, and transfer that option to the other party.
    No evidence, however, was adduced by the plaintiff that the defendant was so notified, or that such a demand was made of him; and from the showing of the plaintiff’s witness (Mr. Price), the action was in fact commenced before the completion of the canal, ■or passage of the water through Chillicothe.
    The above grounds of defense are partly technical, and it would not have been necessary to urge them to this court, had the defendant been allowed to prove, as he offered to prove:
    5. What was the principal consideration of the subscription, and -that this consideration was a mistaken consideration, an error of both parties, but an error arising from the misrepresentations of the agents of the party now claiming the benefit of this contract, .and also that the remaining consideration of the subscription was taken away by the act of the agents of the state, who changed the line of the canal from the route contemplated by both parties at the time of the subscription, after a considerable portion had been .actually excavated, in reference, not to considerations of public advantage, but for the benefit of the individuals interested in the change of location, and who paid a consideration therefor. A brief outline of the evidence thus offered by the defendant to explain this ■document, signed, not with the caution and deliberation of ordinary business transactions, but hastily, and under erroneous impressions, produced by the statements of the agents of the plaintiff in this suit, will close,this argument on the part of the defendant.
    Testimony was offered by defendant, and rejected as inadmissible by the court, to prove, that shortly before the date of the subscription paper, two routes of canal had been run and staked by the state engineers from Cireleville to the mouth of the Scioto, one -on the east, and the other on the west side of the river — the latter passing through the town of Chillicothe, and through a valuable out-lot belonging to the defendant; and that these were the only two routes contemplated by the defendant at the time of his subscription. That from the reports of the engineers, it was believed at that time by the canal commissioners, and by them stated to the ■defendant and other subscribers to the paper offered in evidence 131] by plaintiff, at a ^public meeting, that the route on the east •side of the river was the most eligible and least expensive, and consequently the canal would be there located, unless the citizens •of Chillicothe should by subscription raise a sum sufficient to in•demnify the state for the additional risk and expense of location ■on the west side. That under this impression, and in order to make up this deficiency, the defendant, together with other citizens ■of Chillicothe and vicinity, owning property along the route on the west side as then located, entered into a contract to pay the canal fund commissioners, as expressed in the paper upon which this .action is brought.
    That Shortly after the date of the subscription paper, from more accurate estimates and examinations of the two routes, the western, •or Chillicothe route was found to be preferable “ as to relative cost and advantage,” and was so reported by the canal commissioners to the legislature; and, therefore, that the principal consideration of the defendant being to make up a deficiency, which did not exist, was a mistaken consideration, founded upon error as to the subject matter of contract, and the contract was consequently void. 1 Pothier on Obligations, 12.
    That the defendant being at that time unacquainted with the location of canals, supposed, in common with other subscribers to the paper, that the route was permanently fixed by the engineers, and if located on the west side of the river, it would certainly pass along the line already located through his property, and the amount of his subscription was predicated on the expected enhancement by the canal of the value of his property. A large portion of this line was not only put under contract, but actually excavated, within the limits of the town; when, at the instance -of other citizens of Chillicothe, the line of canal passing through the town was changed so as not to touch or come near his property, •leaving it much less valuable than if the route contemplated by him had been persevered in.
    Under these circumstances, we contend, for the defendant, that he ought to have been permitted to show a failure of consideration, and a change of the route of the canal after subscription made and excavation commenced, by private contract with other individuals. The reply was, that there is no ambiguity on the face of the contract, and that parol evidence could not be admitted to vary or alter its legal effect. A line of canal had been located through Chillicothe when the subscription was made. The parol 132] evidence offered was to point the ^application of that term to that line, as being the line contemplated by both parties. Both lines pass through Chillicothe. The legal effect of the contract is not altered, unless the consideration has failed. If the passage of the canal through the lands of A., lying in Chillicothe, is the consideration of his subscription, on the ground of individual benefit, his subscription is a bonus for that benefit. If the canal is removed to the land of B., also lying in Chillicothe, for a bonus which B. pays, may not A. show that the consideration for his bonus has failed. If the canal is made through the lands of A. and B., on the’ grounds of public justice and policy, while A. and B. are induced by the agents of the state to subscribe for the purpose of bringing the canal to the route most advantageous to them, it is evident that the location of the canal is independent of and uninfluenced by any promise or bonus. The advantage is derived from the act of the government, on grounds independent of private interests, and the bonus ought not to be demanded. The line located through the property of the defendant, and contemplated by him at the time of his subscription, was put under contract and excavations commenced. This was shown by plaintiff.
    By private contract, the canal commissioners changed the route entirely from this line to one which did not come near the property of the defendant — to a line which was considered by the commissioners themselves as less safe, more expensive, and interfering more with private rights. The difference of risk and expense was made up to the -state by private citizens and to subserve private interests. -The authority in 18 Johns. 397, is in point. If the canal commissioners, then, without strong motives of state policy, abandoned a line under contract and partly excavated, for the advantage of other individuals, the state not being benefited, we think the defendant might insist on this matter of defense, and show the understanding of the subscriber at the time of subscription — that but one line or route was contemplated by him, and that the change in the route was made contrary to his consent, and swept away the consideration upon which his subscription was made. Starkie on Evidence, 1000-1026; Chitty on Contracts, 24, 25; Phillips on Evidence, 513, 566.
    Leonard and Swan, for plaintiff:
    The first objection taken to the verdict, namely, that the corn-missioners had no power to enter into such a contract, and that the same is void, was argued *and determined in the case of [133 the Commissioners of the Canal Fund v. Perry, 5 Ohio, 56. According to the. decision of that case, this contract was made with the state. “ This contract was entered into entirely on the part of the government, by a person authorized to make it, and its obligation is on the government only.” Id. 65. In the same case it was held, that the canal fund commissioners were neither a corporation, nor had they power to solicit donations. The commissioners of the canal fund have, in their public capacity, had no participation in this contract.- They have merely lent a private hand in transmitting the instrument.from the promisor to the promisee. Nor can it be material to its validity in what manner or by whom it was transmitted. If voluntarily entered into on the part of the defendant, and the plaintiff has performed its condition, this is such evidence of the assent of both parties that neither can deny its obligation.
    This court, in the case above referred to, determined that this identical contract was founded upon a sufficient consideration to bind the parties. If one without authority makes a contract on behalf of another, and the contract is ratified, either expressly or tacitly, by the performance of its stipulations, it becomes binding upon all. If authorities should be wanted to this plain principle, they may be seen. 13 Mass. 178, op. 182; 1 Caine, 526. While the contract remained executory, perhaps the defendant, and certainly the plaintiff, might set up the want of authority in tho agent to enter into it; but after it has been executed by the principal, which is undoubtedly the highest evidence of assent to its terms, it is too late to question its obligation. We flatter ourselves we have answered the points reserved in the first and third specifications.
    2. The second exception to the verdict appears to be a mistake, in fact, which will be seen by the terms of the instrument upon which the suit is predicated. The instrument does not prescribe the time when the canal shall pass through Chillicothe. No time being specified, the law would imply that it should pass in a reasonable time. There was no complaint that the canal, in its passage through Chillicothe, was unreasonably or unnecessarily delayed. By recurring to the instrument it will be discovered that no time was stipulated for the completion of the canal, either in express terms or by reasonable implication.
    4. Two distinct objections áre taken : 1 That the defendant had 134] no notice of the completion of the canal. 2. That no *demand was made before the commencement of the action. The ¡first ot these objections, we are quite sure, was not made on the trial. We are, however, willing to meet both.
    It was in proof that the defendant’s residence was near Chillicothe, within the hearing of the feu de joie at its completion. It is matter of public history that- all the public journals in the Union noticed from time to time t-he progress of this mighty work. Its completion was almost simultaneously announced in all quarters of the United States. The patriotic citizens of Chillicothe celebrated the event with civic and military processions, and one of her distinguished men .pronounced an oration on the occasion.
    From all these circumstances, as well as the very nature, ot the undertaking, it would be absurd not to infer the defendant’s knowledge of this notorious event. But the law does not require notice. It was neither necessary to make such averment nor prove it. 5 Com. Dig. Pleader, 369, oh. 75,; 1 Day, 183; 2 Ohio, 204. The •averment, however, was made in the declaration, and this court-must be satisfied that the defendant had notice, and that the jury had a right so to infer from the circumstances. 2. The nature of -the defendant’s undertaking did not require a demand befo e the commencement of the suit. The defendant undertook to pay two hundred dollars in land, at cash value, or cash. The effect of the •contract is, that they may have the privilege of discharging it by .a deed of conveyance of land, of the value of two hundred dollars, at any time within six months after the canal should be put under contract; but if he did not elect to pay in land, at the time specified, he would pay in cash, at his convenience, within three years from date. It is urged there was no,officer of state who had authority to receive a deed, and consequently the defendant was ■excused from tendering one. This is a mistake. The commissioners are expressly empowered “to take, in the name of the state, such grants and conveyances as may be proper and competent to vest in the state a good title to the same.” Canal Doc. -52; Law of January 27, 1823. The same provision is contained in the act of February 4, 1825, section 10. No difference in principle is perceived between a contract to pay a sum of money in land or specific articles. If a person contracts to deliver specific articles he will be discharged if ho is ready to deliver them. 4 Mass. 474. A note was given to pay forty pounds in land, and this note was admitted under the money counts. 2 Johns. 125. *On a contract to pay ten pounds five shillings in good [235 trade by the 15th of October, no proof of a demand is necessary. 1 Bibb, 263, 328. This case is almost exactly like that of Morris v. Edwards, 1 Ohio, 189, in which this court held that no act was necessary to be done by the plaintiff; but if the defendant elected to pay, as he had the privilege of doing, “in bank notes, current in Cincinnati,” he should have made the tender; failing to do so, .the note became absolute for the specified sum of money.
    The duty in this case lay upon the defendant to deliver, or offer to deliver, a deed for the land, if he elected that mode of discharging his contract, not upon the plaintiff to demand his choice.
    It is not admitted, as suggested by the defendant’s counsel, that this action was commenced “ before the canal ¿ad passed through Chillieothe.” If this were the case, it would be fatal to the action. The proof, however, was, that the canal was completed through that place early in the spring; as early as the month of May, 1832. The summons bears date, June 28, 1832.
    No objection was made on the trial, that the suit was commenced before the plaintiff had a right of action, and none could be made, for the evidence on that point, being uncontradicted, was conclusive.
    5. The last objection is, that evidence was offered, in bar of the action, that some individuals of the board of commissioners, for the purpose of obtaining subscriptions, had held out inducements to the citizens of Chillieothe, which had not been realized, and which were founded in mistake; and further, that the canal line was changed subsequent to the date of the instrument, and does not now pass through the land of the defendant, as he supposed it would. The defendant insists, that evidence of this character was improperly rejected, because it would show a failure of consideration, and consequently, that this action could not be maintained.
    It would be impossible for this court to ascertain the advantages which have resulted and must result to the citizens of Chillieothe, from the completion of this splendid undertaking; and perhaps those, of all in the state, have the least cause to murmur at the, policy or the result. But for the steady adherence of the corn-missioners to that just and liberal policy which led to the protection of fixed property in every instance where it could be done, 136] without very great sacrifice *cm the Par^ of the state, the canal would have passed on the eastern side of the Scioto, and that now flourishing town would have been, at this moment, a mass of deserted ruins.
    The effect of the testimony, if admitted, would have been, to vary, by parol, a written contract, in which there is no pretense to claim there is anything like ambiguity. This can not be done. 6 Mass. 430; 3 Stark. Ev. 1002; 1 Ohio, 178.
    The defendant also appears to suppose, that the consideration, which would give validity to this instrument must be a direct and certain benefit to himself. By resorting to such'grounds, the defendant is doing not only great injustice to his own disinterestedness and patriotic liberality, but entirely misapprehends the binding operation of an instrument of this kind. The. consideration for the promise is not that the canal should pass through the land of the defendant, or that his property should be enhanced in value by its completion, but that “ the canal should pass through the town of Chillicothe.” The contract, for its consideration, has in contemplation a public benefit; and this is a sufficient one, to give validity, in that respect, to the contract. 20 Johns. 89; 5 Ohio, 56, and the authorities there cited.
    If the defendant really intended to make his donation depend upon other conditions than that specified in the contract, it was. competent for him to do so, and the plaintiff would have been bound to their performance, before the right of action would have accrued. Such is not the case. The contract, in very clear and explicit terms, requires the canal to pass through Chillicothe ; and the defendant has undertaken to pay upon the performance of that, single condition. The condition has been performed to the letter by the plaintiff, and the defendant must perform his part.
    It would be strange, indeed, to make the binding obligation of a contract depend upon the question, whether either party has realized his expectations under it, and to pronounce the disappointment of either, in this respect, a failure of consideration. This is, in substance, what the defendant claims should annul the contract, and be a legal bar to the action !
    The application of the case of Griffin v. House, 18 Johns. 397, to the point under consideration, is not distinctly perceived. It iq indeed, intimated by tbe court, that a discretionary power once executed, is at an end. It is not necessary to examine the correctness of this doctrine. The second section *of the act of [137 February 4,1825, vests the power in the commissioners of making :& canal; and vests the power in them to make it at discretion, •except three special points, to wit: Lake Erie, Licking Summit, .and the mouth of the Scioto. It is very clear, the power vested was not executed until the canal was finally completed between those points.. The power of changing lines, at intermediate points, was necessarily incidental to the general power. But the defendant is certainly not intrusted with the supervision of the .agents of the state. If they have transcended their authority, it has not been in violation of his contract. Whether the agents of >the state have acted indiscreetly and faithlessly, or not, the state has performed her contract with the defendant. She has taken the •canal through Chillicotho. It seems, then, notwithstanding the indiscretion and want of fidelity, and violations oí law, on the part of the government agents, the state has, by good fortune, been enabled to fulfill, to the very letter, its engagements with the •defendant.
    Willey, in reply, upon the first, third, and fifth causes for a •new trial:
    The case of the Canal Fund Commissioners v. Perry is cited by the plaintiff’s counsel as conclusive against the defendant upon the first .and third points made. That case, rightly understood, involved, necessarily, altogether a different question than those here to be •decided. The points here involved did not necessarily arise in that case ; they were not discussed in that case, or thought of by ■counsel on either side, for the reason that the suit was between different parties. The court, in delivering their opinion, however, .advanced sentiments indicative oí the construction which ought to be given to contracts of the nature declared upon in this case. That case, correctly apprehended, seems to establish the doctrine that contracts of this kind may be binding on the promisor, and when binding the state must sue in its own name; and that case seems to go no farther. Now, whether binding and obligatory or not, depends upon the structure and language of the contract. If the state is made, by the contract, a party to it, as the payee or obligor, and a consideration passes, or is to pass to the promisor,
    
      the state may sue. If, however, the state is not a party, expressed to be such, that authority upon the first and third points in th© case proves nothing.
    In the present case, how does it appear that the State of Ohio 138] *was interested in the contract, or a party to it? The state is not named in it. There was no proof on the trial that the state was a party or had an interest. Express written contracts exclude all. implied ones upon the same subject matter. There was no promise shown as made to the state. That the state might have á collateral interest in its fulfillment makes no difference. The declaration avers that the defendant “ undertook and promised the State of Ohio to pay,” etc. Is this true? The contract does not say so, and all parol proof, the counsel for the plaintiff contend, must be excluded.
    With whom was this supposed contract made? Evidently with the fund commissioners. It is immaterial in this case to inquire whether they had power to make it on their own account or not. It is only necessary to ascertain whether they could make it on behalf of the state, as the agent of the state, and did they so make it? None of the statutes defining the powers and duties of th© fund commissioners give them the power. The case of the Fund Commissioners v. Perry expressly declares that “that contract is neither within the express powers conferred upon the fund commissioners nor within the general scope of their authority.” •There was no contracting party, then, on the part of the state, aud none is pretended or inserted in the contract itself on th© part of the state. The fund commissioners were not agents in. this matter. The state had never made them such. It is not pretended in the contract. In the supposed contract they did not. presume to act as agents. They took the promise, whether good or not, to themselves. How comes the state, then, seeking th© benefit of a promise which it had never authorized, but refused to have taken in its behalf, and which, in fact, never was made or taken in its behalf at all?
    The plaintiff’s counsel have some difficulty in this respect. The counsel for the’plaintiff say: “ The fund commissioners have had, in their public capacity, no participation in this contract.” In what capacity have they participated in it? In their individual capacity, it is presumed. The defendant is content with this position, and maintains it fully. Inasmuch as the fund commissioners bad no power as public agents, in a public capacity, to make such a contract, and inasmuch as they have not pretended to make such a contract, as public agents, on behalf of the state, or make use of the name of the state in any respect, it is clear that it should be regarded as an individual transaction only.
    *The counsel for the plaintiff do not appear to apprehend [139 the question presented. They say, “ if voluntarily entered into on the part of the defendant, and the plaintiff has performed its condition, neither can deny its obligation.” The question on ■ this point is not what its obligation is, or whether it has any ; but the question is, to whom or in whose favor the obligation was attempted to be incurred when the contract was made. The state can not, by any act it can perform, change or transfer'a promise or liability, or supposed promise or liability, to itself. If the state has performed the condition,'or an individual has performed the condition, it makes no difference. The state gains nothing by that in aid of maintaining a suit in its own name, unless a party to the contract at the time of its formation.
    . Again, the counsel say, “ if one without authority makes a contract on behalf of another, and the contract is ratified either expressly or tacitly by the performance of its stipulations, it becomes binding upon all,” and authorities are cited. The application of this principle of law, to this case, is not discovered. It has no application. The question before the court is not understood. The principle is advanced upon the supposition that that is conceded which is not conceded, but the very point in controversy. The plaintiff’s counsel have got to maintain, and consequently ought to have laid down, the following position : “ If one without authority makes a contract on behalf of himself, which he can not enforce, can a third person, not named in the contract, step in and fulfill its conditions, and enforce it in his own name by suit?” The fund commissioners did not,for, legally, they could not make the contract for and on behalf of another, the state. They had not the power, and there was no stipulation for the state to perform, for no one had undertaken that the state should perform any, and consequently none existed. Upon the doctrine of the plaintiff’s counsel, if Ohio had stopped the canal at Circleville, and a wealthy individual, or the State of Yirginia, had extended it through Chillicothe to the Ohio river, such individual, or the State of Yirginia, could maintain this action to recover the amount of the subscription. And why ? The stipulation, that is, the making of the canal, is fulfilled; the defendant has got what he subscribed to get. The contract was not framed to meet such an exigency. And yet it is difficult to draw the distinction, inasmuch as this court has said, in the case referred to, of the Fund Commission-140] ers v. *Perry, that “ the power of making such a contract can not be taken, by implication, as conferred upon the fund commissioners,” and inasmuch as the plaintiff’s counsel themselves disavow any participation on the part of the fund commissioners, in making the contract, as public agents of the State of Ohio.
    Contracts must be mutual and reciprocal in their obligation. Transpose the parties. Suppose the defendant, within the six months, had conveyed the land to the value of two hundred dollars to the fund commissioners, in the very terms of the stipulation and contract, and suppose the canal had passed on the east side of the river, and not through Chillicothe, would the defendant have had any remedy as against the state? The true language would then be applied to the defendant, that the state had nothing to do with any unauthorized dealings or stipulations of the fund commissioners.
    But, at all events, it is submitted that there is a variance between the contract declared on and the one offered in evidence. Contracts must be declared on according to their legal effect, or in the words in which they are framed. The declaration sets forth a promise to the State of Ohio. This is claimed to be the legal operation of the promise in the contract to the fund commissioners. Can this be so? It can not, if the views already taken are correct, that the fund commissioners had no right or power to act for the state. But suppose they had ; then the legal effect of the promise must be carried throughout the whole description of the contract, and the legal effect is, that the land is to be conveyed or money paid to the state, and not to the fund commissioners. In the case of Perry, already referred to, the court say, “ that the act expressly requires donations tq be received in behalf of the state, or to the state, that the effect of the promise was the same as to pay the state, and the expression in the contract, designating the fund commissioners, did not seem to be used to describe the obligee of the contracts,” etc., “ but barely the agent to receive the money.” A promise to the principal to pay the agent, or a promise to-tha plaintiff to pay another man when the principal or plaintiff is suing for his own money, and when the legal effect of the promise, if it has any, is to pay the principal or plaintiff, is a new mode of interpretation. The contract reads, “ we agree to pay or convey to the commissioners of the canal fund.” The declaration sets forth a promise to the state, and, by the statute and decisions, the payments must be described as following *such promise, by [141 legal intendment. If, as the plaintiff’s counsel claim, the contract was made with the state, a performance of it was stipulated to be made to the state, and must be so set forth, and the breach must correspond with such allegation. Would a deed of the land to the fund commissioners, not being a corporate body, or capable of receiving title, discharge the defendant, upon the grounds assumed in this case by the plaintiff, that the promise and the whole contract was made with the state, and that the fund commissioners had no participation or hand in it, “ except a private and neighborly hand to transmit the contract to the state.”
    If, however, the counsel for the defendant have mistaken the law upon the points discussed under the first, second, third, and fourth reasons assigned why the court should grant a new trial, they feel assured that under the fifth cause assigned the ground they have assumed is tenable, and that a new trial will be granted by the court.
    The counsel for the plaintiff have not answered the argument upon this point.
    They set out by saying that, “It would be impossible for the court to ascertain the advantages which have resulted and must result to the citizens of Chillicothe (the defendant, ha?) from the completion of this splendid work ” !I What can be said upon such a flourish as this? It is impossible for the court to know the advantages or disadvantages without hearing the evidence. At least we are bound to presume, in courts of justice, that neither the court nor the jury can ascertain satisfactorily the merits of a cause without hearing the testimony. There may have been one or two exceptions to impugn the universal prevalence of this presumption, within a few years past, in the administration of justice, but these exceptions still leave the old order of things unshaken as a rule of action and as a rule of law. That which is easily shown in court in respect to a supposed contract with a single individual, ought not to be called “ impossible.” The offer was to prove that the contracting parties (the agents of the state, if the counsel please, on the one side, and the defendant on the other), were mistaken in respect to the subject matter, and the supposed' existence of facts appertaining thereto, at the time of making the subscription — that the state gave nothing, and that the defendant received nothing and could receive nothing by the fulfillment of the contract or condition.
   * Judge Lane

delivered the opinion of the court:

The point intended to be ¡^resented by the first objection isr whether the state can sustain an action, in its name, upon that’paper. We regard the affirmative settled in the suit of the Commissioners of the Canal Fund v. Perry, 5 Ohio, 55, and here have only to repeat our adherence to that opinion.

The second objection leads to a construction of the agreement as to the time of performance. The terms of the contract are not expressed with much precision, yet its meaning is not obscure. The defendant stipulates to pay two hundred dollars in three years, or land to that value in six months after the canal passing through the town be put under contract, on condition that it shall pass through the town. By the phrase “passing through the town” is meant, not the completion, but the final location and establishment of the line of canal. It is not a part of the contract that the canal shall be undertaken in three years, but all the conditions must happen before the defendant’s performance can be claimed. If the defendant intend to convey the land, he must do it in six months after the line of canal be established or put under contract through the town. If he do not convey the land, the money is due after three years, and the establishment and contracting for the line through the town. The evidence showed the jury these facts occurred in the spring of 1824.

The third objection, that no proof was offered of the existence of any canal commissioners, is answered by the general law organizing and creating them.

The fourth objection, that the defendant had no notice of the construction of the canal, was not taken at the trial. If it had been taken, the jury would have been instructed that they might presume, from his residence and from his property in Chillicothe» that he could not have been ignorant of an event so deeply affecting his and every man’s interests — so identified with our recent history, and occupying so large a space in the volumes of our legislation.

The defendant offered to prove the consideration had failed, by establishing the following facts: 1. That prior to the subscription, experimental lines had been run down both sides of the Sciotoriver, the western of which passed through the town of Chillieothe, and was estimated by the engineers to be the most expensive. That the commissioners represented to the defendant and to the other citizens of Chillicothe that the ^eastern [MS-line would be selected for the work, unless they subscribed sufficient to meet the increased expense; that under this belief, and for this purpose, this subscription was made; but it was afterward discovered that the eastern line was not the cheapest, so that the-commissioners and the subscribers were mistaken in the facts. 2. That the defendant was the owner of an out-lot of the town through which the experimental line was run, and that he was led to subscribe by the belief that the canal would be constructed on this line, and would enhance the value of this lot; that by a subsequent arrangement between the commissioners and certain citizens of Chillicothe, the route of the canal was so changed as to pass through the town in another direction, without touching the lot of the defendant, which is not so valuable as it would have-been had the experimental line been selected for the route.

It‘will be recollected that this case presents no fraud, for all imputation of fraud was explicitly disclaimed by the defendant’s counsel. The mistake, if any such existed, was one common to both parties, if the canal commissioners can, in any sense, be deemed parties to the agreement. But if both parties act under a common mistake, it does not avoid the agreement; the act done is valid between them, and binds both ; for work done under such a mistake, the operative is entitled to his price.

The defendant, in entering into this contract, might impose his own terms; but when defined and reduced to writing, the writing must be taken to embrace them all. The conditions shown by the writing must be complied with, and those not specified, in the absence of fraud or mistake, are deemed to have no existence. But the defendant seeks to multiply those conditions, and to make his liability depend on the greater cheapness of the eastern route- and the projection of the canal through the town in a particular line. These are no elements of the agreement, and they could not be shown by parol, if they were so. 1 Johns. Ch. 273, 339.

What are the terms of this contract ? ' Men are led into agreements by many causes, such as the hope of profit, the expectation Of acquiring what they could not otherwise obtain, the desire of avoiding a loss. Yet these inducements are not the consideration, and compose no part of the contract. The legal consideration from the other party, the consequences which follow the contract, its benefits or its disappointments, are matters beyond the convention, with which he has nothing to do. The whole present en-144] gagement was to pay to the agents of the Estate two hundred dollars, on condition that the state shall construct the canal through the town. If the benefits he expected do not arise, he is not permitted to cast his disappointment on the state.

The last clause of this evidence is exposed to the further objection that, taken in its largest effect, it shows a partial failure only. The lot is not so much enhanced in value as it would have been had the canal ran through it; but it can not with truth be asserted that it derives no additional value from the location of the canal through the town; so that, if the enhancement of the value of the lot were the consideration, its failure is not total, and constitutes no defense at law. 3 Ohio, 285.

Motion for a new trial overruled. Judgment on the verdict.  