
    The Spartanburg and Union Railroad Company vs. Thomas DeGraffenreid.
    
      Railroad Company — Contract to take Stock — Condition.
    After a railroad company bad been organized, a question arose among the stockholders, as to which of two routes should be adopted. The defendant, to induce the company to take the route he desired, agreed to subscribe a certain number of shares, provided that route was taken. The company took that route. Held, that defendant was bound by his contract to take the number of shares he had agreed to subscribe.
    BEFORE GLOVER, J., AT CHESTER, SPRING TERM, 1860.
    The report of his Honor, the presiding. Judge, is as follows :
    
      “ By a written agreement, dated Eebruary 9, 1858, the defendant subscribed for eighty shares in the Spartanburg and Union Railroad Company,-and tbis action was brought to recover the several instalments on the said shares,- and tbe'interest due on the said instalments from the time limited for^ their payments respectively .
    
    
      “The defendant’s handwriting to the agreement (which was also subscribed by other persons) was proved ; and L. T. Levin, a book-keeper in the office of the 'Columbia Banner,’ proved that all the instalments were advertised and legally called for. The Act incorporating the Company was not specially offered in evidence, but I referred to such provisions of it as were applicable to the case, in my charge to the jury, who were instructed to allow interest on the several instalments as they became due. The jury found a verdict for instalments, but without interest.
    “The Statute of Limitations was not pleaded and no reliance was placed on such a bar to the action by the attorney of Beeord.”
    The defendant appealed, and now moved this Court in arrest of judgment and for a new trial on the grounds:
    In arrest of judgment — 1. Because the promise sued on was null and void, not having been made and entered into according to the provisions of the Act of Assembly of 1847, and without consideration, is nudum, pactum.
    
    2. Because there is no consideration stated nor proved on the trial.
    Por a new trial — 1. Because there was no evidence before the Court as to the provisions of the charter, and therefore his Honor could not legally instruct the jury to find for the plaintiff.
    2. Because the defendant was not legally bound to the plaintiff as he had not made any legal and valid subscription to the stock of the said Company, inasmuch as he did not “subscribe in a book and pay down one dollar on each share,” as required by the third section of the charter. See Act of 1847, page 476.
    
      3. Because there was no legal evidence as to any calls on the defendant for instalments, as required by the terms of the charter, as the depositions offered in evidence were wholly insufficient to prove the said calls, and the acts and declarations of its agents, should not have been admitted in evidence against the defendant when they were objected to by the defendant.
    4. Because the defendant should have been allowed the benefit of the plea of the Statute of Limitations, as he went to trial under an admission that that plea was pleaded.
    5. Because the verdict was contrary to law and legal evidence, and should be set aside and a new trial granted, that justice may be done to the defendant.
    Thompson, for appellant.
    
      Gfadsberry, contra.
    
      
      
         Copy of agreement.
      February 9th, 1853.
      We, whose names are hereto annexed, do hereby agree to subscribe the number of shares opposite onr names, to the Spartanburg and Union Railroad Company (ahaies at twenty-five dollars each,) provided said road is located along the route or line that runs down the ridge in Santuck, passing near Jennings’, and crossing Broad River at any point above the month of Tyger River, and running from thence down on the east side of Broad River to Alston Station.
      NAMES. NO. OF SHARES. AMOUNTS.
      Mary Crosby........... 20 $ 500
      Thos. DeGraffenreid. 80 2000
      And others
    
   The opinion of the Court was delivered by

O’Neall, C. J.

The leading mistake of the learned and zealous counsel for the defendant, is in supposing that the subscription in this case was one under the charter, and before the Company was organized, when in fact the Company had been two years in operation before the defendant subscribed. The question was before the stockholders whether the Tinker creek or the Ridge route between Tiger and Broad rivers should be taken. To secure this latter route the defendant subscribed eighty shares, two thousand dollars, upon the condition that that route should be taken. It was taken and the road was built on that route. Ought not the defendant to pay his subscription ? It seems so to me.

The case of the N. E. R. R. Company vs. Rodrigues, 10 Rich. 278, is an analogous ease. There the struggle was to secure the charter; persons, a committee, were sent out to secure the charter by raising additional subscriptions. The committee supposed that each subscriber might forfeit his payment of ten dollars on his subscription and' thus free himself from the obligation; and one of the committee so stated to defendant, who subscribed. The Court held he was bound, and Judge Whitner delivering the opinion said, “It cannot avail the defendant that the subscription was not made in the presence of the commissioners.” “ The fact of such a subscription created an obligation and promise to pay the further sums required according to the terms of the charter.”

Here the promise was to aid a railroad already existing upon a route to be taken; if so taken, such a promise, on the performance of the condition, was binding. The consideration was certainly sufficient. Beyond the building of the road, on the prescribed route, nothing further was necessary to fix the liability of the defendant. He was not entitled to have calls made for the payment of his subscription, as the original stockholders. But if he was, all the proof in the power of the party was given. The Company was plainly entitled to interest at least from the time the work on the Bidge route was finished. The jury found no interest, and if the plaintiff was appealing, a new trial must be awarded. But they are content, and the defendant has no right to complain.

The motions in arrest of judgments and for new trial are dismissed.

Johnstone and Wardlaw, JJ., concurred.

Motion dismissed.  