64 Tex. 344 | Tex. | 1885
It was the expressed intention of the parties to the subscription list to make it available in securing the construction of the railroad on the designated line, and the establishment and maintenance of a depot at the named point. To secure these objects the committee tendered to appellant the subscription list as it stood, but as the subscribers were unknown to the company they required the committee to raise the money. Then, to meet this demand, all the subscribers, except appellee and one other, paid the amount of their subscription in advance. This amounted to $2,350 in money and a balance on the subscription list of $150; and the committee delivered to the company the money and list, which was accepted as and for the $2,500.
It appears that the company had, prior to the institution of this suit, complied, upon its part, with the terms and stipulations expressed in the subscription, by constructing the road and establishing and maintaining the depot upon the line and at the point designated.
There was no change in the original agreement as expressed in the subscription, so far as appellee is concerned; nor was his liability affected in any manner by the fact that the other subscribers paid the respective amounts subscribed by them in advance of the time designated thereby.
His object and intention in signing the subscription was to secure the construction of the road and the establishment of the depot as therein designated, and upon the terms expressed. This has been accomplished; the desired object has been secured; but appellee declines to perform his part of the agreement.
Appellee did not withdraw his promise to pay the amount subscribed by him until after appellant had accepted the subscription and performed its part of the agreement. Williams v. Rogan, 59 Tex., 438.
Our conclusion is that the judgment of the court below is against the evidence, and ought to be reversed, and that the supreme court should here render the judgment that ought to have been rendered by the court below, viz., that appellant, “The Gulf, Colorado & Santa Fe Railroad Company,” do have and recover of and from appellee D. A. ISTeely, and A. J. George, Tbad. T. Angel and E. B. George, sureties upon his appeal bond, approved and filed March 29, 1883, for the sum of $100, with interest thereon at the rate of eight per cent, per annum from March 28,1883, and all costs of suit.
Reveesed and bendeeed.
[Opinion approved June 9, 1885.]
