a proposition by acceptance on different terms, or from changing it afterwards verbally, where not required to be written. The doctrine of release can hardly be said to apply in such a case, where the parties carry out their new agreement; and where they may end it at any time, the rule of special consideration, if otherwise applicable,-upon which we need not dwell,-has no bearing. The judgment must be reversed, and a new trial granted. COOLEY, C. J.-I do not concur in the opinion of my brethren in this case. A question concerning the employment of the plaintiff by these railroad companies was before this court in Detroit, etc., R. R. Co. v. Smith, 50 Mich. 112; s. c., 13 Am. & Eng. R. R. Cas. 655, and it was then construed to be a joint employment of the plaintiff by the two railroad companies, each company to pay one half the salary. This division of payment was not determined by the written paper, which, after its acceptance by the plaintiff, we may properly enough speak of as the contract of the parties; but the course of business under it showed that to be the understanding as between the two railroad companies. On the trial of this cause, evidence was offered on behalf of the Detroit, Hillsdale & Southwestern R. R. Co. that there were certain negotiations between the plaintiff and the railroad companies previous to the date of the writing, and that in those negotiations, which culminated in the giving of the writing, it was understood and agreed that each company was to be liable for and was to pay one half the $5000 salary. The evidence was objected to and ruled out. It was claimed to be admissible on the ground that the writing itself was incomplete, and that there were evident omissions which the evidence would supply. INTENTION THAT SHOULD BE SEV PROVED. The question in dispute on the trial was whether the two companies were jointly liable for the whole salary. On that point there is no omission in the contract. The promise is joint and is for the whole sum. To import into the contract a stipulation that each road should be liable for one half ERAL CANNOT BE of the salary only would not be to supply any omission in the contract, but it would be to overrule one of its terms, and substitute two several promises for one joint promise. The court, I think, was right in holding this inadmissible. McEwan v. Ortman, 34 Mich. 325; Oliver v. Shoemaker, 35 Mich. 464; Haynes v. Ledyard, 44 Mich. 621; Kelsey v. Chamberlain, 47 Mich. 241. The same company offered further to show that plaintiff regularly presented vouchers monthly to each company for one half the salary for the month, and that these were paid and settled for so far as presented to that company. It was claimed that such evidence should be received and submitted to the jury as tending to show-First, an agreement of the plaintiff with the two companies to look to each for one half the sum coming to him; and, second, a settlement with this company up to the time for which payment was made by it of such accounts. The court rejected the evidence as immaterial to the issue being tried. The employment, as has been said, was joint. But, as appears on the face of the contract, it was made on behalf of two distinct companies. Under such circumstances I agree with the circuit judge that the fact that plaintiff presented vouchers for one half the salary to each company, and receipted for such sums as were paid him, did not tend to prove an understanding that he would look to each company for only one half the sum stipulated for. The presentation of separate vouchers to the separate roads would be for their convenience, not for his, and it would reasonably be expected he would do this if the roads were managed in distinct interests. And there is nothing in this case to show they were not so managed. I think, therefore, if defendant had put into the case the evidence offered, the jury would not have been warranted, on that evidence alone, to deduce the inference suggested. There was, therefore, no error in excluding the evidence. Many errors are assigned, but what has been said substantially covers the case. It was of no moment on the trial that one company had paid its share, and the other had not; the plaintiff had the joint promise of both for the whole sum, and he has a right to look to both till all is paid. We cannot know that he would have consented to accept the responsibility of either road separately. SKOWHEGAN AND ATHENS R. R. Co. V. KINSMAN. (Advance Case, Maine. June 4, 1885.) A subscription for stock without more is conditional on the full amount of stock being subscribed for, but this condition may be expressly waived. D. D. Stewart for plaintiff. H. & W. J. Knowlton and E. F. Webb for defendant. EMERY, J.-A person by simply subscribing for shares in a corporation without words of promise to pay, assumes only the obligations imposed by law on such subscriber. He is understood to have agreed to assume a certain percentage of the re- OBLIGATIONS OF sponsibility of the enterprise, on condition that the SUBSCRIBER. amount of the responsibility be made certain, and the remaining percentage be assumed by responsible parties. He can require that the full amount of capital agreed upon, or established by the charter as necessary for success, shall be engaged before he pays in his part. He is only obliged to pay legal assessments, and where the capital has not been fixed, or when fixed, has not been subscribed for, there can be no legal assessment, unless the charter otherwise provide. Som. & Ken. R. R. Co. v. Cushing, 45 Me. 425; Somerset R. R. Co. v. Clarke, 61 Ib. 379. WAIVER. But a person may, in his subscription, voluntarily assume any other obligations not forbidden by law. He may waive any and all of the conditions implied by law in a naked subscription. He may impose other conditions, or he may promise payment for his shares without any conditions. His promise once made, will be binding, there being in such cases sufficient consideration in the obligation of the company to deliver the shares. Ken. & Port. R. R. Co. v. Jarvis, 34 Me. 360; Bucksport & Bangor R. R. Co. v. Buck, 65 Ib. 536; City Hotel v. Dickinson, 6 Gray, 586; Lexington & West Cambridge R. R. Co. v. Chandler, 13 Metc. 311; Pen. and Ken. R. R. Co. v. Bartlett, 12 Gray, 244; Boston, Barre & Gardner R. R. Co. v. Wellington, 113 Mass. 79. In such cases the express promise is to be enforced by an action thereon, and not by an action on a promise implied by the law only. In this case, it was first proposed to organize the company under the general laws, and certain subscriptions were made to the stock of the proposed company. Subsequently the company was chartered by the legislature, the capital stock to be not less than seven hundred and fifty shares of $50 each. The corporators met pursuant to the charter, accepted the charter, and chose officers under it. After this organization, and before the amount of the stock was fixed by the directors, the defendant with others made the following contract with the company: FACTS. "SKOWHEGAN AND ATHENS RAILROAD COMPANY. Subscription List. "We, the undersigned, hereby agree to take, and hereby subscribe for the number of shares of stock in said railroad company hereunto by each of us placed opposite our names in the following list. Said shares to be fifty dollars each. And we agree to pay the par value of the same. And all who shall subscribe for as many shares in the following subscription as they have subscribed for in a former subscription list, are hereby released from all former subscriptions to said company. "Athens, May 30, 1881." The defendant claims he is not liable to pay for the shares he thus subcribed for, because the amount of the capital stock was not fixed and the minimum number of shares named in the charter case, PROMISE TO PAY were not subscribed for. He might not be liable to pay in such if he were a mere subscriber for stock, or if this action were for legal assessments, but he, in addition to his subscription for shares, expressly promised to pay $50 each for them, and this action is on his express promise to pay, and not on any promise merely implied by law. His promise was unconditional, and he cannot now invoke conditions. In Ken. & Port. R. R. Co. v. Jarvis, 34 Me. 360, above cited, the capital stock DEPENDANT'S was fixed by the directors at twelve thousand shares, with right of increase to twenty thousand shares. The shares subscribed for were never so many as twelve thousand, and the defendant invoked that omission in defence. The court expressly overruled that defense and held him liable, on the ground he had expressly promised to pay (not legal assessments, but) "at such times, to such persons and on such instalments as shall be hereafter required by a vote of said company." That case is decisive of this. In the case cited by the defendant, it will be found there was no express promise to pay, or only a promise to pay legal assessments, or that the action was only an implied promise as for legal assessments. In such cases the condition implied by law must be shown to have been fulfilled. In this case, those conditions were waived by the express promise to pay absolutely. We think the organization of the company was sufficiently regular to enable it to maintain this action, the defendant having recognized it as an existing corporation by his subscription. Chubb v. Upton, 95 U. S. 667. The defendant did not stipulate for a demand, prior to suit, but we think it sufficiently appears he was requested to pay. We find no averment nor evidence of a readiness to deliver the shares, but as the point was not made in argument, and the case must be again heard, we do not notice it here. Action to stand for trial. PETERS, C. J., WALTON, DANFORTH, LIBBEY, and FOSTER, JJ., concurred. Non-liability of Stockholder where whole Amount of Stock is not subscribed. The Supreme Court of Illinois in the case of Temple v. Lemon, 112 Ill. 51, held that in the absence of any element of estoppel a subscriber to the stock of a corporation is not liable to pay for his shares until the whole capital stock is subscribed. This is consistent with the rule laid down by Shaw, C. J., in Stoneham Branch R.R. Co. v. Gould, 2 Gray, 277, thus: "It is a rule of law, too well settled to be now questioned, that when the capital stock and number of shares are fixed by the act of incorporation (in this case by the articles filed and recorded), or by any vote or by-law passed conformedly to the act of incorporation, no assessinent can lawfully be made on the share of any subscriber until the whole number of shares has been taken." And this ruling is sustained by Proprietors Newburyport Bridge v. Story, 6 Pick. 45, note; Burt v. Farrar, 24 Barb. 518; New Hampshire Cent. R. R. Co. v. Johnson, 30 N. H. 390; Allman v. Havana and E. R. R. Co., 88 Ill. 521; 1 Redf. Rys. 176; Salem Mill Dam Corp. v. Ropes, 0 Pick. 23; 9 Pick. 187; Somerset & K. R. R. Co. v. Cushing, 45 Me. 524; and many other cases. But where an act of incorporation in no part of it declares that the parties named as incorporators shall not have power to act as a corporation until a certain amount of capital is paid in, subscribers can be compelled to pay their subscriptions, in the absence of an agreement to the contrary, notwithstanding the whole of the stock authorized to be issued has not been subscribed for. Lynch v. La Fayette & M. R. R. Co., 12 Am. & Eng. R. R. Cas. 652. Waiver by Stockholder.-It is well settled, however, that a stockholder may waive this objection to his liability. But it is essential that the subscriber know that the stock has not all been taken in order to bind him to a waiver of the objection to his liability on this ground. Oldtown v. Veazie, 39 Me. 571; Levesey v. Omaha Hotel Co., 5 Neb. 50. The rule is thus stated by Judge Thompson: "If a subscriber, knowing that the whole number of shares had not been taken to fill up the capital, had attended meetings of the corporation, and had co-operated in the votes for expending money and for making contracts, and in other acts which could only be properly done upon the assumption that the subscribers intended to proceed with the stock partially taken up, such subscriber might be estopped from setting up this defence." Thompson Liab. of Stockholders, § 120; see also Cabot, etc., v. Chapin, 6 Cush. 53; Hager v. Cleveland, 36 Md. 490; Katama L. Co. v. Jarnegan, 126 Mass. 155; Garling v. Beachtel, 41 Md. 305. SAGINAW, TUSCOLA AND HURON R. R. Co. v. CHAPPELL. (Advance Case, Michigan. Jan. 28, 1885.) If a special agent of a railroad company, to receive subscriptions to the capital stock, has intrusted to him a subscription which is to be delivered only upon the location of the road in a certain position, and, in disregard of the non-performance of the condition, delivers the subscription, the subscriber is not liable thereon. A contract executed on Sunday is prima facie void, and cannot be enforced against the party executing it, in the absence of evidence of ratification on a week-day, or of evidence that the other party, in good faith, and without knowledge of the defect, has acted upon it. ERROR to Saginaw. Tarsney & Weadock for plaintiff. Winsor & Snover for defendant and appellant. CHAMPLIN, J.-The plaintiff sued Chappell to recover his subscription of $500 to the following paper: "For and in consideration of the construction of the Saginaw, Tuscola & Huron R. R. from East Saginaw through the counties of Saginaw, Tuscola, and Huron to the village of Sebewaing, in the county of Huron, we agree to pay to the order of E. T. Judd, treasurer of said company, |