
    Francis Trott v. Moses Sarchett et al.
    In an action upon a railroad subscription contract, conditioned to be paid in installments, as might, from time to time, be called for by the directors, provided the same should be expended upon a certain line of road to be thereafter located by the company: Held—
    1. That the petition, showing neither the road constructed along the line designated, nor an offer nor readiness to expend the money subscribed, according to the condition, is defective.
    
      2. That upon a demurrer, by the plaintiff, to answer to such petition, such de fects in the petition require the demurrer to he overruled.
    Error to the district court of Guernsey county.
    The defendants in error filed their petition in the court of common pleas of Guernsey county against the plaintiff in error, in which they state “ that the plaintiff in error, on or about the 10th of July, 1852, at said county, subscribed to the capital stock of the Central Ohio Railroad Company, six shares of fifty dollars each share, and delivered the same t© said Central Ohio Railroad Company, which said subscription was made by signing his name to a paper in the words and figures following, to wit:
    “‘STOCK SUBSCRIPTION.
    ‘“We, the undersigned, agree to take and do take the number of .■shares of stock (of fifty dollars each share) in the Central Ohio Railroad Company, respectively attached *to our names, and will pay for said shares in installments as may be from time to time -called for by the directors of said company, provided the said payments shall he expended within the county of Guernsey, in the construction of the railroad of said company, between Zanesville .and the Ohio river, on the Leatherwood and McMahon’s Greek :route.
    NAMES OP SUBSCRIBERS. RESIDENCE. NUMBER OP SHARES.
    Francis TrottJackson Tp., Guernsey Co., 0. Six.
    “ The plaintiffs further say that on the 9th day of February, a. d. 1853, after said railroad company had established the line of their ■said road on the Leatherwood and McMahon Creek route, the directors of the Central Ohio Railroad Company, according to the terms and conditions of their charter, ordered that installments of ten per cent, on the capital stock of the eastern division of the ■Central Ohio Railroad be called in every thirty days, and that the treasurer give public notice thereof. The plaintiffs further say that on the 3d day of March, 1853, the treasurer of said railroad ■company gave public notice to the stockholders of said company in Noble and Guernsey counties, that the installment of ten per cent, •on the capital stock should be paid every thirty days until all were paid; the first installment to be .paid on the 23d day of March, 1853, of which requisitions to pay said stock on said installments the said Francis Trott had notice. The plaintiffs further say that by reason of said subscription to .said capital stock of said Central Ohio Railroad Company by the defendant subscribed, -and by reason of the said defendant failing to pay the said several installments at the time they respectively fell due, and still failing to pay any part thereof, although requested so to do, became and was indebted to the Central Ohio Railroad Company, on the 9th day of May, 1856, in the sum of three hundred dollars and the accruing interest on the said several installments up to that *date, in the sum of $49.57, as appears by bill herewith filed, making principal and interest due to the said Central Ohio Railroad Cómpany, on the 9th day of May, 1856, the sum of $349.57, and five per cent, penalty thereon, according to the statute. The plaintiffs further say that about the 9th day of May, 1856, said Central Ohio Railroad Company, for a valuable consideration, assigned all their interest in and to said subscription of the said Francis Trott to the plaintiffs, and delivered the same to the plaintiffs; yet the said Francis Trott hath not paid,” etc.
    Judgment was entered upon this petition against the defendant on his default, by the court of common pleas. The defendant appealed to the district court; and by leave there granted, filed his answer to the petition, stating as a defense the following matters, to wit:
    “ That he signed his name to the subscription paper set forth, and designated in said petition, at the instance and request of one John Fordyee, then a citizen of Senecaville, in Guernsey county, who was a mere volunteer in the matter of raising subscriptions to said capital stock, without any special authority from, or agency on behalf of, said railroad company, or the directory thereof; that the said John Fordyce had the right to withhold the delivery of this-defendant’s said subscription, and did, by reason of considerations having reference to the location of an arm of said road to the town of Senecaville, determine not to deliver this defendant’s said subscription ; that said Fordyce, in violation of said determination,, did by mistake deliver the same to some of the officers of said railroad company; that this defendant, acting vrpon the impression that his said subscription was not delivered to said railroad company, was thereby induced to take an equal amount of stock in the Pittsburg, Maysville and Cincinnati Railroad Company; the route of the same passing through the said town of Senecaville.. Wherefore, this defendant asks that judgment be rendered by the court ^according to the premises herein set forth, to the effect that he be hence dismissed with his costs.”
    To this answer the plaintiffs filed a demurrer, and for cause-say, “the facts therein stated do not constitute a defense to the action,” etc.
    Upon hearing, the district court sustained the demurrer and rendered judgment for the plaintiffs, in the amount demanded against the defendant. To reverse the judgment so rendered, the defendant below filed a petition in error, and assigns for error:
    1. That the facts set forth in said petition are not sufficient in-law to maintain the action.
    2. That the court erred in sustaining the demurrer to the answer; and,
    3. That the court rendered judgment for the plaintiffs, when, by law, the judgment should have been in favor of the defendant.
    
      John Ferguson, for plaintiff in error.
    
      J. W. White, for defendants in error.
   Sutlifr, J.

The judgment of the district court, which we are called upon to revise, having been rendered upon the issue of law presented by the demurrer to the answer, our attention is invited firstly to the petition. For it is a rule of pleading that upon a demurrer the court will view the whole record and give judgment to the party who thereon appears entitled to it. And although a plea to a declaration, or an answer to a petition, be utterly defective and obnoxious to a demurrer, yet if the declaration or petition be also defective and insufficient, upon demurrer by the plaintiff such defective plea or answer will never be adjudged insufficient in respect to such defective declaration or petition. In such cases, however defective the pleading demurred to may be, the judgment should be given against the party whoso pleading was first defective *in substance. 1 Saund. 119, note 7; 5 Hobart. 56; Murdock v. Winters’ Adm’r, 1 Har. & Gill, 471; Smith v. Walker, 1 Wash. 135; Allen v. Crofoot, 7 Cow. 46; Stephen on Pleading, 144.

Let us then recur to the petition, and see whether that is so defective as to be subject to a demurrer. By section 87 of the code, ■among other causes of demurrer to a petition, is stated the following: “That the petition does not state facts sufficient to constitute a cause of action."

The petition in this ease contains a statement of the contract, and -averment of the facts in relation thereto, as constituting the cause of action on which judgment was asked. The contract, as stated, was a proposition or an agreement on the part of the defendant, upon certain conditions therein expressed, to take and pay for six shares of railroad stock in the Central Ohio Railroad Company, at the price of three hundred dollars, to be paid in installments from time to time, as called for by the directors of the company, the condition being that the amount to be paid should be expended within •the county of Guernsey, in the construction of the road between Zanesville and the Ohio river, on the Leatherwood and McMahon’s ■Creek route. The averments connected with a statement of the •contract in the j^etition, to show the defendant in default of his ■undertaking, are the following: That after the establishment of the road upon the route designated, on the 9th of February, 1853, the •directors ordered that installments of ten per cent, on the capital stock of the eastern division of the Central Ohio Railroad be called in every thirty days, and gave public notice thereof. It is also ■averred that the treasurer gave public notice, on the 3d of March, 1853, to the stockholders of said company, in Noble and Guernsey counties, of said assessments or order of directors. - Under these •circumstances, it is averred that on the 9th of May, 1856, the defendant had neglected to pay any part of said $300, and that the company assigned their ¡right of action to the plaintiffs. These are ■all the averments *made in the petition to show a right of ■action against the defendant. Do these averments, supposing them .all true, constitute a right of action in the plaintiffs against the defendant? Certainly not. It is nowhere stated that the .railroad company ever acceded to the condition annexed to the defendant’s-contract; that they ever consented to expend the price proposed to-be paid for the six shares of stock agreeably to the proposition; or-that they ever consented to lot the defendant have six shares of their stock hpon the terms by him proposed in his subscription.. It is not averred, that the defendant was ever notified that the company had called for said $300 to be paid in installments to be expended as proposed; nor is it averred that said road has~ever been constructed, or that the plaintiffs were ready and willing to expend the said $300 according to the conditions of said contract. It is-not averred that the defendant was a stockholder in Noble or Guernsey county, or that that stock belonged to the eastern division of the road.

But it is sufficient to say, that the petition does not state facts-sufficient to constitute a cause of action. The district court, therefore, erred in sustaining the demurrer of the plaintiffs below to the answer of the defendant, and rendering judgment in their favor. Eor this cause, the judgment so rendered must be reversed, and the-cause remanded for further proceedings.

Judgment accordingly.

Brinkerhoee, C. J., and Scott, Peck, and Gholson, JJ., con-’ curred.  