McCrimmin v. Cooper , 27 Tex. 113 ( 1863 )

Moore, J.

We will not attempt to review the various questions that have been raised by the parties during the progress of this case. To discuss them would only be an useless consumption of time. An examination of the record fully satisfies us that the verdict of the jury was clearly contrary to the evidence, and that it should have heen set aside and a new trial granted. It is now a well settled principle in the courts of this State, that payment of a voluntary subscription, on the faith of which expense has been incurred, or legal liabilities assumed, may be enforced. (Hopkins v. Upshur, 20 Tex., 89 ; Doyle v. Glasscock, 24 Tex., 200.) But a subscription paper does not usually bear upon its face all the qualities of a good cause of action. We have generally to look to the attendant and subsequent transactions in relation to it, to obviate the objections that might otherwise be presented against it as the foundation of a cause of action. The appellee in this case, who was the plaintiff below, has not only failed to show, in connection with the subscription on which he sues, such attendant and subsequent transactions as entitle him to maintain his action; but, on the contrary, the facts as disclosed clearly negative his right to do so.

The testimony shows that the subscription paper to which the ■appellants were parties, was intended to securé the building of the bridge across Mud Creek, in the place of one that had been burnt. That it was generally understood in the neighborhood, and among the parties to the subscription, that when the requisite amount should be subscribed, a committee was to be appointed, the contract let to the lowest bidder, and that the bridge was to be completed during the fall of 1857. The appellee seems to have taken ■an interest in getting up the subscription, and upon his representations that it was with the intention and purpose just indicated, he procured subscribers to it. The testimony also shows that there was a meeting of some of the subscribers in accordance with this general understanding among the parties interested in the matter. But so few of them attended the meeting that the enterprise was considered by those who were present as abandoned; and the party who then held the subscription paper, and from whom the appellee got it some twelve months afterwards, declared that he would have nothing further to do with the business. Under these circumstances, if the subscription can be regarded as an offer of the amount subscribed to any one who should build a bridge at the point indicated in it, and if it were conceded that Cooper had built such a bridge as was contemplated by the subscribers, it cannot be held that they were bound to pay him the amounts of their subscriptions. To have bound them, their offer must have been accepted within a reasonable time after it was made, and within time to effectuate the intention of the parties in joining in the subscription. Doing so twelve months- after the subscriptions were made, without proof of the ratification or assent of the subscribers, can not be regarded as a reasonable time. It will not be presumed from the circumstances presented in this case, that the subscribers intended to leave the proposition made, open for acceptance for so great a length of time as had elapsed previous to Cooper’s commencing to build the bridge. The testimony also tends strongly to induce the impression that he did not build the bridge upon the faith of the subscription. He appears, while building it, not to have regarded the subscribers asunder any legal obligations to pay him. He seemed then to rely solely upon their sense of liberality for such compensation as he hoped to receive from them. But be this as it may, we must hold that the offer made by the subscribers could not be regarded as continuing at the date of the arrangement between Johnston, who held the subscription paper, and Cooper; and the appellants were not parties to, or bound by any agreement or contract entered into by them. (1 Pars. Cont., 403, el seq.)

The judgment is reversed, and the'cause remanded.

Reversed and remanded,-