
    THE PEOPLE’S FREIGHT RAILWAY COMPANY VS. HENCH.
    A clause in a subscription to the stock of a proposed railroad, that no assess • ments shall be made unless for work actually done in grad ng, is not contrary to public policy, and will be enforced against the company seeking to collect assessments.
    Error to the Common Pleas of Mifflin County. No. 91, January Term, 1883.
    This was an action of debt brought by the railway company to the use of Jacob M. Bivins against George Hench to recover some installments on sixty shares of People’s Freight Railway stock. In subscribing, the following clause had been inserted in the subscription: “No assessments to be made on this stock •unless the Sherman’s Valley route is taken and for work actually done in grading.” Some assessments had been made and paid, but the road was finally sold out by the Sheriff, not being completed. The Court held that the plaintiff’ was bound to show that the work done in grading was worth more than the amount collected before he could recover. The Court also allowed the amount paid the engineer for services while Bivins was grading, but did not allow plaintiff’ to show a debt due to the engineer for locating the road. The Court also rejected evidence of plaintiff i- show the costs of collecting and printing, &c.
    J. H. Graham, Esq., for plaintiff in error,
    argued that Hench was bound to pay the installments when called; Miller vs. Pittsburg and Connellsville R. R. Co., 40 Pa. 237.
    
      Messrs. McIntire, Culbertson & Smiley, contra,
    
    argued that e.nough money had been collected to pay for all the grading actually done, and therefore plaintiff could not recover.
   The Supreme Court affirmed the judgment of the Common Pleas on October 6th, 1883, in the following opinion:

Per Curiam.

This was an effort to enforce the payment of assessments on the stock contrary to the express terms of the subscription. It declared inter alia that no assessment should be made unless “for work actually done in grading.” This agreement was one which the parties had an undoubted right to make. It was not contrary to public policy nor in conflict with any statute. The defendant was not willing to pay in advance. He therefore stipulated he should not pay until the work was actually done. The doing of the grading was to precede the making of any assessments for him to pay. The learned judge ruled the case correctly according to the letter and spirit of the agreement.

Judgment affirmed.  