acting in a representative capacity and not merely on his own personal account. The plaintiff's requests for instructions raised no question on this point, but asked the court to rule that, "in order to constitute a valid withdrawal, the defendants must do some act or make some unequivocal or unconditional statement to the proper officer or officers of the associates which shall amount to a public withdrawal from said contract." The instructions were given with reference to this request, and, as we understand them, they amounted to this, that Mr. Tower having been chosen as president, and acting for the associates, was, on August 31, a proper officer to be notified by the defendants of their withdrawal.

We think this instruction was right. No instruction was asked at the trial that, in order to withdraw from the associates, notice must be given to all of them individually or at a meeting of the associates. The plaintiff only contended that the notice must be given to the proper officer or officers, and it would be plainly impracticable to require a direct personal notice to them all. The right to withdraw would be nugatory if this were necessary. A subscriber who has a right to withdraw may not know, or have the means of knowing, who all of his associates are, or where they live. If he does know, they may be many in number, and widely scattered, or some of them may be away on a journey. No general meeting of them may be called which he can attend without leaving the state. He need not wait for a meeting before giving his notice of withdrawal. It was, indeed, held, in an early case in England, that all of the other subscribers must not only have notice, but must actually consent, before one of the subscribers could withdraw. Kidwelly Canal Co. v. Raby, 2 Price 93. But, now, in England, as well as here, no such consent is necessary. If every one of the other subscribers should object, yet it is the right of the subscriber to withdraw before the corporation is formed. It is merely a question of giving due notice of his withdrawal. And in England it is not intimated in any modern case, so far as our examination has gone, that notice must be given to all the other subscribers, or at a meeting of subscribers. The retraction has usually been made to the same persons to whom the application for shares was made. See Lindl. Part. (4th ed.) 99-105, and numerous cases cited.

In this country no case has been cited, and we have found none, discussing the question what notice of withdrawal shall be sufficient. In some cases no attempt to withdraw was made till after the corporation was formed. See, for examples, International Fair and Exposition Association v. Walker, 83 Mich. 386; Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248; Ashuelot Boot and Shoe Co. v. Hoit, 56 N. H. 548; Shober v. Lancaster County Park Association, 68 Pa. St. 429. It is said in Cartright v. Dickinson, 88 Tenn. 476: "Before the organization of the corporation and acceptance of the subscription the promoters might, perhaps, agree to release a subscriber by substituting other names for his." This goes on the idea that the subscriber has not an absolute right to withdraw, and that somebody's assent is necessary.

Plank's Tavern Co. v. Burkhard, 87 Mich. 182, the subscriber apparently made known his refusal to the persons who brought a second paper to be signed by him, and it was held to be sufficient, but the proper mode of giving such notice is not discussed, and the court incidentally remarked that "the corporators well knew when the company was organized that the defendants expressly repudiated the whole arrangement." It is held that the death of a subscriber before the formation of the corporation is a revocation of a subscription. Phipps v. Jones, 20 Pa. St. 260; Wallace v. Townsend, 43 Ohio St. 537; Pratt v. Elgin Baptist Society, 93 Ill. 475; Sedalia, Warsaw and Southern Railway v. Wilkerson, 83 Mo. 235. Insanity is also held to be a revocation in Beach v. First Methodist Episcopal Church, 96 Ill. 177. Death is a public fact, of which all the world must take notice, though the above decisions were not put on that ground (Marlett v. Jackman, 3 Allen 287), but insanity is not. In most of the cases where the right of withdrawal of a subscription has been held to exist, there is nothing to show that all the other subscribers were notified, and there has been no question as to the sufficiency of the mode in which the withdrawal was made. See, in addition to the cases above cited, Auburn Bolt and Nut Works v. Shultz, 143 Pa. St. 256; Muncy Traction Engine Co. v. Green, 143 Pa. St. 269; Garrett v. Dillsbury and Mechanicsburg Railroad, 78 Pa. St. 465; Strasburg Railroad v. Echternacht, 21 Pa. St. 220. An offer of reward made by public proclamation may be withdrawn in the same manner, and the fact that a claimant of the reward was ignorant of the withdrawal of the offer is immaterial. Shuey v. United States, 92 U. S. 73. And if not withdrawn by any express notice, a withdrawal is implied after the lapse of a considerable time. Loring v. Boston, 7 Met. 409.

In the present case, it seems to us that Henry Tower was a proper person to whom a withdrawing subscriber might give notice of his withdrawal. So far as appears in the bill of exceptions, there was no other officer or person who so well or fully represented the subscribers at large. He was at the head of the principal committee, and in addition to this he had been selected and chosen as president, and he was acting in behalf of the subscribers. There is nothing to show that the chairman of the meetings had any duties except merely as presiding officer at the meetings. Taking the case as it stood, and in view of the requests for instructions, which implied that the notice of withdrawal would of course be given to some officer, and of the fact that nobody else was suggested as the proper officer or person to receive the notice, the ruling of the court was right, that notice to him was sufficient; and the fact that the association did not come into legal existence as a fully-formed corporation till a later date does not render the notice to him insufficient, under the circum

stances.

The plaintiff requested a ruling that the defendants could not withdraw after the associates had taken action on the strength of their 31-WIL. CASES.

subscription.

decision.

This was rightly refused, as was held in the former

The plaintiff also asked an instruction that the defendants' offer was not conditional, and could not be made so by oral testimony. This instruction was given.

The evidence to which the plaintiff objected was properly admitted for the purpose for which it was received, and the instructions to the jury carefully limited it to that purpose, and confined the attention of the jury to the single point of the defendants' withdrawal of their subscription.

Exceptions overruled.

Note. See the following cases: 1857, Lake Ontario, etc., R. Co. v. Mason, 16 N. Y. 451, 463; 1868, Rose v. San Antonio, etc., R. Co., 31 Texas 49; 1875, Garrett v. Dillsburg, etc., R. Co., 78 Pa. St. 465; 1877, Gaff v. Flesher, 33 O. S. 107; 1885, Tilsonburg, etc., Co. v. Goodrich, 8 Ont. (Q. B. D.) 565; 1885; Cook v. Chittenden, 25 Fed. Rep. 544; 1885, Gulf, etc., Ry. v. Neely, 64 Texas 344; 1888, Muncy Traction Eng. Co. v. De La Green, 143 Pa. St. 269; 1891, International F. Ass'n v. Walker, 88 Mich. 62; 1893, White v. Kahn, 103 Ala. 308; 1893, Greenbrier Indus. Ex. v. Rodes, 37 W. Va. 738; 1893, Lewis, etc., v. Hillsboro, etc., Co., 23 S. W. (Texas) 338; 1894, Nehema Coal Co. v. Settle, 54 Kan. 424; 1895, Halifax C. Co. v. Moir, 28 N. S. 45; 1896, Providence, etc., Co. v. Kent, etc., Co., 35 Atl. (R. I.) 152; 1896, Re Hannan's, etc., Co., 74 L. T. Rep. 550; 1898, Common v. Matthews' Rap. Ind. Quebec, 8 B. R. 138. But see, 1896, Phil. & Del. Co. Ry. v. Conway, 177 Pa. St. 364. See, also, Beach, §§ 516-517; Clark, §§ 93-97; Elliott, §§ 344, 345a; Morawetz, §§ 49-51; Taylor, §§ 513-515; I Thompson, §§ 1162-1163, VII Thompson, § 8606.

Sec. 108. Same.

(b) Offer until acted upon in accordance with its provisions, then becomes binding.

THE PENINSULAR RAILWAY COMPANY v. DUNCAN.1

1873. IN THE SUPREME COURT OF MICHIGAN. 28 Mich. Reports 130-152.

Error to Kalamazoo Circuit.

COOLEY, J. This case presents the question whether one who becomes one of the original associates for the formation of a railway company, and signs a subscription agreeing to take a certain number of shares of the capital stock of the proposed company, and to pay therefor, "at such times and in such sums as the same shall be assessed, demanded and required to be paid by the directors of the said company," but who afterward fails for any reason to sign the articles of incorporation, or to subscribe for stock on the commissioners' books, can be held liable upon his preliminary subscription, after the com

1 Part of opinion omitted, also all of dissenting opinion of Campbell, J.

pany has been formed and assessments been made and payment demanded.

The question arises upon the first section of the act for incorporation of railroad companies, approved February 12, 1855, as amended in 1867. Laws of 1867, vol. i, p. 90. The plaintiffs insist that the signers of the preliminary subscription, whether they afterward sign the articles or not, if the corporation is duly formed, have the same absolute right to stock therein that those have who execute the articles, or to whom stock is awarded on subscriptions upon the commissioners' books; and that having a right to the stock, they are under a corresponding obligation to pay for it. On the other hand, the position of the defendants is that the preliminary subscription, though possibly a convenient step in the organization of a corporation, is by no means indispensable, but that the corporation originates with the articles of association, and that no one who previously had contemplated becoming a member, however strongly or in whatever form of words he may have expressed his intention to that effect, is bound by that expression, if, when the articles are to be signed, he declines to unite in them, or for any reason fails to do so, and thereby, expressly or by implication, elects not to become a member. Up to that time, it is insisted everything is provisional and inchoate; nobody is bound or can be bound without further vol ntary action of his own.

A consideration of the question thus presented is peculiarly embarrassing, in consequence of the totally different views which have been taken of it by able jurists in other states where similar statutes exist. We have examined the reported cases with care, and while we find many of the opinions able, and in the main well reasoned, yet as it is impossible to reconcile them, and none of them follows precisely the train of reasoning through which we have been led to our own conclusion, we have not deemed it advisable to review the cases in this opinion, but shall proceed, with such brevity as the case will admit, to present our own views.

It may be quite true, as is insisted on the part of the defense, that a preliminary subscription is not an indispensable requisite in the formation of a corporation under the general railroad law. If the requisite number of persons execute the proper articles, naming therein their directors, and attach thereto the affidavit required by the statute, verifying the fact that they are subscribers for the requisite amount of stock, and have paid to the directors five percentum thereon, it is difficult to perceive any ground upon which it could be plausibly contended that the corporation was not duly organized, or to suggest any important function that the preliminary subscription could have performed for such subscribers, and which in the particular case has not been performed without it. Nevertheless, a very cursory examination of the statute must convince any one that such a subscription, whether indispensable or not, is contemplated as a proceeding which will generally, at least, take place. This is evident from the expressions employed in the statute in conferring authority. to organize. The persons who may incorporate themselves are "any

number of persons not less than twenty-five, being subscribers to the stock of any contemplated railroad." They are allowed to do so "when stock to the amount of $1,000 for every mile of said road so intended to be built" "shall be in good faith subscribed, and five per cent. paid thereon." There can not be subscriptions to the stock until something is in writing for the subscribers to sign. The statute gives no form for such a subscription; it indicates no machinery by means of which it is to be originated or signatures obtained. Everything is left to the voluntary action of the promoters of the enterprise, and whatever form of writing is satisfactory to them, and sufficiently indicates the general purpose sought to be accomplished, and the share the several subscribers are to take in it, would undoubtedly be sufficient.

By any such voluntary subscription to take stock, however, we should naturally understand some mutual agreement by which the promoters severally agree to take and pay for certain shares in the proposed corporation; something, in short, like or similar to the agreement which was actually entered into in the present case. We do not understand that there would be any difficulty at the common law in enforcing the promises contained in an agreement of this general nature against the several promisors, where the object to be accomplished was lawful, where a beneficial purpose was in view, and where it was possible to make to the several promisors the return which their subscriptions called for. In such cases the promises are mutual; acts are done and moneys expended in reliance upon the subscriptions, and the moment the promises are accepted by the organization and action of the corporation to which they are provisionally made, there can generally be no difficulty in their enforcement if the corporation then has it in its power to give the stock subscribed for, and offers to do so. In such a subscription thus accepted there would be all the requisites of a valid contract, proper parties and a promise made upon a legal and valuable consideration.

In this case, however, the question involved is not one to be settled entirely by the rules of the common law, but there is involved a question of statutory construction. It is argued by the defense that the terms of the statute are such as to make any preliminary subscription that may have been entered into entirely immaterial and nugatory the moment the articles are executed, and that promises therein contained are incapable of enforcement, because under the statute the subscribers are not entitled to stock in the corporation, and, consequently, do not receive a consideration for their promises. This construction arises principally upon one clause of the first section of the general railroad act, which, after providing what the articles of association shall contain, and for their being subscribed and recorded, declares that "thereupon the persons who have subscribed, and all persons who shall from time to time become stockholders in such company, shall be a body corporate," etc. The argument is that by the express terms of this statute only the subscribers to the articles and those who subsequently become stockholders in the manner provided by law-that is to say,