
    WESTERN DISTRICT, PITTSBURGH, 1859.
    Pittsburgh and Connellsville R. R. Co. versus John K. Graham.
    1. Six years bars the right of a railroad company to recover a subscription for stock, if no call has been made within that time. Pittsburgh and Connellsville R. R. Co. v. Byers, and M'Cally v. P. & C .R. R. Co., 8 Casey, re affirmed.
    2. A subscription conditioned for the prosecution of the construction of the road will be barred, unless the condition be performed, and a call made within six years.
    3. The Statute of Limitations is a bar in equity as well as at law, and the silence of the subscriber after six years have expired, and his standing by while large expenditures were being made, will not preclude him from pleading the statute.
    Error to the District Court of Allegheny county.
    
    The substance of the history of this case is sufficiently indicated, in the opinion of Mr. Justice Thompson. The reports of the cases, of this same company, (Pittsburgh and Connellsville R. R. Co., with Byers and M4Cully, 8 Casey, 22, 25,) give in detail, the facts which existed in this case also. They need not be here repeated.
    
      Shaler and Sewell, for plaintiff in error.
    
      Loomis and Kuhn, contra.
   The opinion of the court was delivered January 3, 1860, by

Thompson, J.

— It was determined a little over a year ago, in the case of the present plaintiff in error against Byers, 8 Casey, 22, and in M'Cully v. The same, Ib. 25, that a contract or subscription for shares of stock to the company, was an ordinary contract, and as such, the Statute of Limitations would operate on the remedies for its enforcement, unless the delay was satisfactorily accounted for; that one of the remedies was by calls for payment of instalments ; another was by suit to follow such calls; that no call having been made within six years, and the delay not being satisfactorily accounted for, that by analogy to -the Statute of Limitations, the right to call after that was barred, and consequently no recovery could be had thereafter, against the plea of the statute.

It' was furthermore decided, in Mi Cully’s case, that the release of a large amount of the subscription to the stock of the company, without the consent of the defendant, operated to discharge him from the obligation to comply with his contract of subscription. These are, in fact, the main points raised by the testimony in this case. We are content with the determination in both those cases, notwithstanding the able oral, as well as printed arguments again offered, to induce a change of our views.

We shall very briefly notice some new points raised in this case, but which we think are subsidiary to those already noticed.

It is said, that this subscription is conditional. The words qualifying the contract are provided that the construction of said road is prosecuted,” and from this, it is contended, that as there was no time fixed within which it was to be prosecuted, that it was within time, although six years had expired. Not so. To adopt this construction, would be to interpret the words used to mean whenever” prosecuted. The law gives a reasonable time for prosecution. But that reasonable time must be before the statute would close in upon the promise of the defendant. If the plaintiffs could only recover on the performance of the condition, they were bound to perform it in time to entitle them to enforce the contract. The negligence or inability of the company to prosecute the construction of the road, within six years is a matter that might concern the company, but it would toll no right of the defendant. There was no salvo of the kind in the contract, and the operation of the statute is never suspended for such a reason. Steele v. Steele, 1 Casey, 156. There was no substantial prosecution of the work within six years, as we decided on the same proof in M‘ Cully’s ease. The testimony of the plaintiffs themselves showed that the trifling amount of work done in December 1847, was to “ save the charter,” and even the contract under which it was done, was shortly thereafter repudiated by the company. The work done was, however, expressly for another object than that of a reasonable prosecution of the construction of the road. It was not necessary, under all the evidence, showing non-compliance, to leave that to a jury. The only proof in the case showed this.

The implication of assent by the defendant, to the acts of the company, in not making calls, in releasing subscribers, and in failing to comply with the condition on which the subscription was accepted, is predicated on the idea, that by subscribing for stock of the company, he became an integral part of it, and bound by all its acts and omissions. We do not assent to this position. We have held the contract to be an ordinary contract to sell and purchase, and to be affected by the incidents affecting such contracts, one of which is the operation of the statute of limitations. Thus, is the assumed ground pre-occupied by the decisions already made in a like case with the present-. It is unnecessary to enlarge upon this point.

It was also argued, that the court should have affirmed the 14th point of the plaintiffs, that the defendant stood by, while large expenditures were being made in constructing the road, and gave no notice that he would not be bound by Ms subscription. Of course, this refers to his silence, after the expiration of the six years, for anterior to that time, it was of no consequence whether he objected or not; he was bound, notwithstanding; but if after, why should he say anything ? He was clear by operation of the statute, and his silence could not be construed into a new promise. In eqMty, the bar of the statute is not to be discarded any more than at law. So that this position will not avail the plaintiffs anything. We do not see that there was any error committed by the court in this case, either in announcing the law of it, or in withholding from the jury any material fact which should have been submitted.

Judgment affirmed.  