ant has conveyed all the land he agreed to convey," raises an important issue, and is not sham pleading.5

1 Haight v. Child, 34 Barb. 186.

2 Haight v. Child, 34 Barb. 186. But see Harris v. Knickerbacker, 5 Wend. 638; Duffy v. O'Donovan, 46 N. Y. 233; 68, ante.

3 Brown v. Eaton, 21 Minn. 409.

4 Brown v. Eaton, 21 Minn, 409.

5 Young. Phifer, 72 N. C. 529. The doctrine is well established, that if the evidence be conflicting, and it is not clear that a contract was in fact made, a complaint for specific performance will be dismissed: Suydam v. Columbus Ins. Co. 18 Ohio, 459; Williams . Stewart, 25 Minn. 516; Dinning v. Phoenix Ins. Co. 68 III. 414; Stearns v. Beckham, 31 Gratt. 379; Haskin v. Ins. Co. 78 Va. 700.

2203. Subscriptions. As a general rule, in the absence of legislation and express agreement on the subject, assessments on subscriptions to the capital stock of a corporation cannot be enforced until the whole amount of stock has been subscribed. In an action on a contract of subscription containing a condition precedent, as, for instance, that a certain amount of the stock shall be subscribed for, the plaintiff must allege in his complaint that the requisite amount of stock has been subscribed, or he must aver all the facts necessary to show a waiver of the condition precedent, and to fix the defendant's liability, notwithstanding the non-performance. So, the complaint in an action to collect a stock subscription must show that the corporation is authorized to have a capital stock and to take subscriptions to the same, and should aver a tender of the stock to the defendant. But in an action upon an unconditonal promise to pay a subscription, it is unnecessary to aver that the requisite amount of capital stock had been subscribed, as provided by charter.5 And if the action is to recover part of a subscription only, issuance and tender of the stock need not be averred. In the case of a subscription with a condition attached, it is not necessary to aver that the subscriber was notified of the acceptance of his subscription, it being sufficient if the

complaint avers that he had notice of the performance of the condition. But in an action on bonds issued to pay a subscription by a county to a railroad company, it is held that every essential element of the power given to the county to make such a subscription must be stated in the complaint or petition; and until both a subscription by the county and its acceptance by the company occur, there is no contract, and such acceptance should be shown. In an action upon a railroad subscription, conditioned to be paid as called for by the directors, provided the same should be expended upon a certain line of road to be thereafter located, a complaint which fails to show either that the road was constructed along the line designated, or an offer or readiness to expend the money subscribed, according to the condition, is defective.10 Where a complaint avers that directors of a railroad corporation had been duly elected in pursuance of notice, it is to be presumed that the requisite amount of stock had been subscribed to authorize such election, and also to authorize the location of the road and the making of assessments." A corporation which, by statute, has power to receive subscriptions before proceeding to organize by electing officers, may, as a necessary consequence, bring suit thereon before being organized.12 In an action by a corporation to recover an unpaid assessment, the complaint should aver that an assessment was ordered agreeably to the act and by-laws, and should also allege the time when it was ordered to be paid. An allegation that, calls for unpaid installments were "duly made," is held to be a sufficient averment that they were made in conformity with the statute.14

1 Hughes v. Antietam etc. Manuf. Co. 34 Md. 316; Peoria etc. R. R. Co. v. Preston, 5 lowa, 115; Jewett r. Valley Railw. Co. Oi.io St. 601; Emmitt v. Springfield etc. R. R. Co. 31 Ohio St. 23.

2 Fry v. Railroad Co. 2 Met. (Ky.) 314: Estabrook v. Omaha Hotel Co. 5 Neb. 76; Livesey v. Omaha Hotel Co. 5 Neb. 50, 75; 8 Am. Corp. Cas. 312; Topeka Bridge Co. v. Cummings, 3 Kan. 55.

3 Minneapolis Harvester Works v. Libby, 24 Minn. 327.

4 St. Paul etc. Railw. Co. v. Robbins, 23 Minn. 439.

5 Lail v. Mt. Sterling Coal Road Co. 13 Bush, 32.

6 Minneapolis Harvester Works v. Libby, 24 Minn. 327, 329. An agreement to take corporate stock necessarily implies a promise on the part of the subscriber to pay for it, and the promise need not be alleged: Mansfield etc. R. R. Co. v. Brown, 26 Ohio. St. 234. And see Lemon v. Chauslor, 68 Mo. 340; Allen v. Patterson, 7 N. Y. 476. A subscriber, by accepting the stock and paying an assessment thereon, estops himself from denying the existence and validity of the contract of subscription: Inter Mountain Pub. Co. v. Jack, Sup. Ct. Mont. 5 West C. Rep. 706. And see Athol Music Hall Co. v. Corey, 116 Mass. 471.

7 Ashtabula etc. R. R. Co. v. Smith, 15 Ohio St. 328.

8 Weil v. Greene County, 69 Mo. 281.

9 Weil v. Greene County, 69 Mo. 281. And see Aspinwall v. Commissioners etc, 22 How. 379; Nugent v. Supervisors, 19 Wall. 241; Inter Mountain Pub. Co. v. Jack, Sup. Ct. Mont. 5 West C. Rep. 706; Griswold v. Seligman, 72 Mo. 110; 8 Am. Corp. Cas. 247.

10 Trott v. Sarchett, 10 Ohio St. 241.

11 Ashtabula etc. R. R. Co. v. Smith, 15 Ohio St. 328.

12 Oregon Cent. R. R. Co. v. Scoggin, 3 Oreg. 161. A subscription to the capital stock of a corporation to be thereafter organized becomes a valid contract, binding upon the subscriber, upon the acceptance by him of the shares subscribed for: Inter Mountain Pub. Co. v. Jack, Sup. Ct. Mont. 5 West C. Rep. 706.

13 Atlantic Mut. Ins. Co. v. Young, 38 N. H. 451. And see Williams v. Lakey, 15 How. Pr. 206; Gebhart v. Junction R. R. Co. 12 Ind. 484; Mansfield etc. R. R. Co. v. Hall, 26 Ohio St. 310.

14 Bavington v. Railroad Co. 34 Pa. St. 358. A stockholder sued for the amount of an assessment upon his subscription will not be allowed to dispute the necessity of the assessment: Judah v. American Live Stock Assoc. 4 Ind. 333; Choteau Ins. Co. v. Floyd, 74 Mo. 286; 8 Am. Corp. Cas. 283. And it seems a stockholder cannot defeat an assessment by evidence that he subscribed to the stock in reliance upon representations of an agent of the corporation that certain persons, in whom he had confidence, were stockholders, such persons not being bona fide stockholders: Choteau Ins. Co. v. Floyd, 74 Mo. 286; 8 Am. Corp. Cas. 283. Compare Selma etc. R. R. Co. v. Anderson, 31 Miss. 829; 8 Am. Corp. Cas. 27.

2204.

Sureties-Complaint.

The complaint in a suit or action by one surety against another for contribution should set forth the facts out of which his contribution arises, depending, of course, upon the circumstances of the particular case.1 The complaint should show the common obligation of the parties as sureties, the payment of the debt by the plaintiff, and an applica

tion to the defendant for the payment of his share.2 Though, according to some of the decisions, the action will lie without alleging or proving a previous notice of the payment by the plaintiff, or a demand on the defendant for contribution. The right of action is held to accrue from the time of payment, without either demand or notice. Nor is it necessary to allege that payment was made under compulsion of a suit.5 In an action against sureties upon the official bond of a county treasurer, the performance of the duties enjoined by statute upon the county commissioners may be alleged in the manner provided for pleading the performance of conditions precedent in a contract; 6 and an allegation "that the county commissioners complied with all the requirements and conditions imposed upon them by the terms of the bond, and the requirements of all acts of the legislature pertaining to the duty of county commissioners relating to county officers and to their official bonds," is sufficient."

1 See Van Demark

. Van Demark, 13 How. Pr. 372; Harris ". Douglass, 64 Ill. 466; Jones v. Blanton, 6 Ired. Eq. 115; Bachelder v. Fiske, 17 Mass. 464.

2 Sherrod v. Woodard, 4 Dev. 360, 363.

3 Parham v. Green, 64 N. C. 436; Chaffee v. Jones, 19 Pick. 260 ; Wood v. Perry, 9 Iowa, 479. But see Sherrod v. Woodard, 4 Dev. 360, 363; Neilson v. Fry, 16 Ohio St. 552,

4 Wood v. Perry, 9 Iowa, 479.

5 Linn v. McClelland, 4 Dev. & B. 458. And see Camp v. Bostwick, 20 Ohio St. 337; 5 Am. Rep. 669.

6 County of White Pine v. Herrick, Sup. Ct. Nev. 5 West C. Rep. 185.

7 County of White Pine v. Herrick, Sup. Ct. Nev. 5 West C. Rep. 185. Compare Himmelman v. Danos, 35 Cal. 441; People v. Jackson, 24 Cal. 630. Where a demand is necessary to fix the liability of sureties on an undertaking, it is parcel of the contract, and must be made before the commencement of an action for the breach of the undertaking, and in the action itself must be averred and proved: Morgan v. Menzies, Sup. Ct. Cal. 2 West C. Rep. 882.

? 205. Sureties - Answer. A valid agreement to ex

tend the time for the payment of a note, entered into

between the maker and the holder, without the knowledge or consent of the surety, will operate to discharge the liability of the latter;1 but an unperformed, usurious agreement for extension of time does not have such effect. And extension of time, to avail as a defense, must be set up in the answer,3 in accordance with the rule that new matter, which is simply an avoidance of the cause of action made out by the plaintiff, should always be specially pleaded. But an answer which alleges an extension of time to the principal debtor, without the consent of the surety, for a binding and valuable consideration, is sufficient without alleging the time for which the extension was granted, by whom it was to be given, or the precise consideration paid. An allegation in an answer by a surety "that the defendant is informed and believes that the time of payment of said note was extended," etc., is not, however, a sufficient allegation of the fact of extension. is the general rule that mere delay by a creditor to proceed against the principal will not exonerate the surety, notwithstanding loss may have resulted from the delay; in order that such delay shall discharge the surety, he must show explicit notice, or a request to the creditor to take legal proceedings to collect the debt, or enforce the liability of the principal. But an averment in his answer that he had requested the plaintiff to sue the maker is held to be sufficient, without the further allegation that the request was in writing, although the statute requires it to be in writing;9 it is sufficient if the pleading alleges the fact of notice, and then it must be shown by the evidence that the statute has been complied with.10 And where the undertaking of a surety is of such a nature that proceedings must be taken against his principal before the obligation of the surety to pay arises, the law im

It