
    Moore v. The New Albany and Salem Railroad Company.
    Suit upon a subscription of stock, conditioned that the railroad should be located on a given line; and providing, that such location should be sufficiently evidenced by an order of the Board of Directors accepting said subscription on the condition named therein. There was no evidence of such an order having been made; but the road had, in fact, been so located and built, and the subscriber knew it.
    
      Meld, that the stipulation in the subscription, by which an order of the Board of Directors was to be accepted as evidence of the required location having been made, did not preclude other evidence of the fact; and that the actual construction of the road, was the best evidence of a compliance with the condition.
    
      Wednesday, November 28.
    APPEAL from the Tippecanoe Circuit Court.
   Hanna, J.

Suit upou a subscription of stock, conditioned that said company should “ locate said road through the town of Lafayette, and cross the Wabash River north of Brown Street.” It is further provided, in said subscription, that said. location should be “ sufficiently evidenced by an order of the Board of Directors accepting said subscription on said terms.” .

S. A. Huff, Z. Baird and J. M\ La Bue, for appellant.

H. W. Chase and J. A. Wilstaeh, for appellee.

It is averred in the complaint, that the company made an order accepting said subscription upon said terms.”

Answer: General deniaL Trial by jury. Terdict for plaintiff. The evidence is in the record. There was no proof made as to the order accepting said stock. But there was proof that the defendant lived in Lafayette, near the road, and had crossed it almost daily, for two years, since its construction in 1853; and that the road runs through the town, and crosses the river north, and, perhaps, somewhat east of Brown Street, about three miles from town.

The Court instructed the jury, that, under these circumstances, proof that the company had made an order of acceptance of said subscription was not necessary.

The suit was commenced in 1855.

The only point made in the brief of appellant is upon the sufficiency of the evidence, and the correctness of the instructions based thereon.

Ve do not see any error. The agreement to consider the order accepting the stock, upon the terms stated, as sufficient evidence of the location on the route required, did not prevent the plaintiff from showing the fact by other evidence. The fact, that the road was built and being operated on the route indicated, was more conclusive evidence, than any mere order could be, of the intention to locate it there.

Per Curiam.

The judgment is affirmed, with 5 per cent, damages and costs.  