Dix v. Shaver

Smith, J.: The judge, at the Circuit, ivas clearly right in holding that there was no consideration for the defendant’s subscription. It was a mere offer on his part, which he was at liberty to retract at any time before any act on the part of the company indicating an acceptance of the offer, and constituting a good consideration for the defendant’s promise. No such act was performed by the company to which the offer was made. Had the company built and operated the road upon the route specified in the subscription paper, we incline to the opinion that it might have been inferred, in the absence, of proof to the contrary, that they did so at the request of the subscribers to the paper, as an acceptance and performance of the stipulated conditions ; and such action would have furnished a sufficient consideration. (The Wayne & Collegiate Institute v. Smith, 36 Barb., 576; Beardsley v. Davis, 52 id., 159.) . But, so far as appears, the company to which the offer was made [395] did nothing of the kind. It was divested of its property and franchises by the foreclosure sale in 1874. The grading and completing of the road and, so far as appeal’s, the locating of the route between the points specified in the subscription paper were done by the new company. Between that company and the defendant there was no privity. The defendant’s offer was not made to the new company. The new company did not acquire the interest of the original company in the subscription paper. It succeeded to such property only, of the original company, as was covered by the mortgage and sold on the foreclosure. We are also of the opinion that the nonsuit ivas proper, for the reason that the agreement, even if there were a consideration to support it, was against public policy. It does not appear that the subscribers were stockholders in the company, and they were not bound to take stock. If their agreement had been a subscription . for stock, conditioned upon the adoption of a particular route, it seems that it would have been void, upon the principle laid down in Butternuts & Oxford Turnpike Co. v. North (1 Hill, 518); Macedon & Bristol Plankroad Co. v. Snediker (18 Barb., 317); and Port Edward & Fort Miller Plankroad Co. v. Payne (15 N. Y., 583). The statute of 1850 (chap. 140), under which the Ontario Lake Shore Railroad Company was organized, appears to be identical in policy with the acts under which the several cases above cited arose, so far as the point in question is concerned. Public policy requires that, in locating a railroad, as well as a turnpike or a plankroad, between given terminal points, the route most advantageous to the public should be adopted. But if the courts should uphold agreements by persons not proposing to take stock to pay a bonus, in case one of the several rival routes is selected, the interests, not only of the public but of the stockholders, might be greatly prejudiced. The motion for a new trial should be denied, and judgment ordered for the defendant on the non-suit. Present — Talcott, P. J., Smith and Hardin, JJ. New trial denied, and judgment ordered for the defendant on the nonsuit.