#### E. D. AUSTIN AND THE NORTH CAROLINA RAILROAD COMPANY *against*OTHO GILLASPIE AND RUFUS M. ROSEBOROUGH.

Where A had agreed, conditionally with others, to subscribe a certain amount to the stock of an incorporated company; and B and O' agreed vvitii him in writing, if he would do so unconditionally, they would each take one-fourth of such gtock off of his hands by subscribing for it in their own names, and A afterwards made such subscription absolutely, held, that equity would decree the specific performance of such agreement.

Cause removed from tbe Court of Equity of Kowan County at tbe Spring Term, 1854.

Under tbe Charter of tbe North Carolina Bailroad Company, after unsuccessful efforts bad been made to raise tbe sum of one million dollars, which wasrequi'red to be subscribed by individuals before tbe subscription of two millions was to be made by tbe State, about eight hundred thousand dollars remaining to be subscribed by individuals, a number of persons associated themselves together for tbe purpose of raising tbe remainder of tbe sum required in a written agreement, calked, “ tbe hundred man plan,” which was as follows:

*262“ Whereas, only a part of the one million of individual subscription to the North Carolina Railroad Company is talcen: Whereas, the purpose of this agreement is to take and secure the balance of the one million of individual stock not already subscribed, and to be subscribed by others, we, the undersigned, interchangeably agree with each other, and the said company, to take each, the one hundredth part of the said balance of the said individual stock. This agreement to be binding on none unless one hundred persons or companies subscribe the same, or the entire amount be made up. Each person or company to be at liberty to subscribe as many shares of the hundred as he or they please, and bound for no more than his or their own subscription. November 29th, 1849.”

To which agreement, the plaintiff, E. D. Austin, amongst many others, signed his name with the hope and expectation, as he alleges in his bill, that his friends would relieve him from the burthen which he had thus undertaken, by joining with him, and taking a part of the sum off of his hands. Accordingly he applied to the defendants Roseborough and Gilias-pie, to assist him in this emergency, and they together with one A. J. Fleming, agreed and undertook, iii writing, as follows :

“ Whereas, there is an arrangement commonly called the hundred'man plan entered into to secure the charter of North Carolina Railroad in which arrangement each subscriber does engage to take the one hundredth part of the said stock not taken by other individuals and each is bound only for the amount of his own subscription, and whereas, E. D. Austin, has become a subscriber on that plan :

We, the undersigned interchangably agree with each other to take each such proportion of said share, as shall be annexed to our names, of the aaidindividual stock already taken by *263tbe said E. D. Austin, and to be bound for no more tlian big own subscription. March 2d, 1850.

E. D. AUSTIN,

OTHO GILLASPIE, 1-4.

B. M. ROSEBOROUGH, 1-4

A. J. FLEMING, $200.”

After tbe execution of this agreement, and as be alleges, partly induced by it, be went forward, and on in due form, subscribed on tbe books of the North Carolina Railroad company, his estimated share of tbe remaining unsubscribed individual stock, to-wit: the sum of eight thousand dollars upon which he paid, as required by the charter, five per cent.

The bill alleges that the Railroad company, who are a party plaintiff, have been willing, and are still willing to accept the defendants as subscribers to the ' shares engaged with Austin to be taken by them, and to discharge and release Jhim from so much thereof, and the plaintiff Austin alleges that he has frequently made application to them to make the subscription according to their written agreement, but that they refuse so to do. He states that since his subscription to the stock of the company, he has sold and transferred to others eighteen hundred dollars worth of the stock subscribed by him, and he offers to allow a deduction of their proportion of that sum from the subscription asked to be made by them.— As to Fleming, he says he Has paid his subscription, and he has no ground of complaint against him. The prayer is for specific performance of the agreement and for general' relief.

The defendants allege in their answer, and insist that this contract was withou^consideration, was not mutual, and that it was made on the promise and assurance of the plaintiff, Austin, that he could and would get large and beneficial contracts for them to do work on the Railroad and that they were to form a joint company to work out the stock proposed to be taken, and *264were to pay no money beyond tlieir proportion of tbe five per cent, already paid by plaintiff, and that plaintiff not only failed to get sucb contracts, but did not endeavor to do so, and that the specific execution of tbe contract would be oppressive to them and unreasonable. They say further that they believed at the time of entering into tbe agreement that Austin had already made an unconditional subscription to the stock of the company.

There was replication to the answer and proofs taken, the material portion of which is noticed in the opinion of the Court.

*Boyden & H. C. Jones*for plaintiffs.

*W. P. Gdldwell*for the defendants,

argued as follows *:*

If this is an agreement, it is not such an one as will he enforced in -this court.'

It is not an agreement. It is either a voluntar/ promise by Austin, to transfer to the defendants stock, which did not exist at the time, and might never exist; or, it is only an understanding by the defendants to a private individual. That it is the latter may be argued from the language of the instrument, from the language of the bill, from the fact that no amount is placed to Austin’s signature, and from the fact that Fleming subscribed somtime afterwards.

If it is an agreement to transfer stock, it will not be enforced unless the stock is *shown*to be of special value, or that the transfer is specially important — Adams Eq. 832, Story Eq. 717, 718.

Mr. Adams says *“*that it is requisite, that the enforcement of an agreement should be *importcmt*to the plaintiff, and not oppressive to the defendant.” Adams Eq. p. 83. It is not important in this case, to the plaintiff, Austin, for it does not appear how he can be injured, nor to the railroad company, for they have accepted Austin’s as a responsible stockholder for the whole.

*265Eelief in this court in such cases, is not to be claimed, as a right, but is in the discretion of the court. In Story Eq. sec. 792, 1st Ire. Eq. 299 Leigh v. Chump.

*“*The remedy in all cases must be mutual,” — Story’s Eq. 2d. 723. “ It is requisite that a mutual enforcement in specie be practicable,” — Adams Eq. p. 80..

The defendants could not enforce this agreement. 1st. Because it is not binding on the plaintiff, Austin, for want of a valuable consideration. 2d. .Because it would not be important, inasmuch as they could get' other stocks in the market or stock of the same company. 3d. They are mere volunteers, and the agreement being executory, it would not be enforced — ■ Story Eq. Yol. 2 sec 793. *a.*

At the date of the instrument, 2nd March, 1850, it appears that Austin was only honorably bound, by signing *“*the hundred man plan.” His agreement to become one of the hundred men on that plan, could not have been enforced in this court.

The N. C. railroad was not organized until after the 2nd March, 1850.

It is not *alleged in the bill,*that the signing of the instrument in question by the defendants was any inducement to Austin, to bind himself legally by subscribing in the books of the railroad. His doing so, was entirely voluntary, and he cannot complain of defendants.

The paper which was signed at Board’s in Austin’s hand writing, shows three things for defendants. 1st. That at that time, Fleming had not agreed to take any of Austin’s stock, for he appears to claim full $4000. 2nd. That the defendant, Eoseborough, was already a large subscriber to the railroad company. 3rd. That there must have been some previous understanding between Austin and defendant by which Austin was to procure large railroad contracts for their mutual benefit.

It appears that Austin has not treated this instrument as a legal obligation on defendant until lately.

*266§£. It is not alleged that Austin called on defendant to go witb biin to the books of the railroad and subscribe. It does not appear that he called on them, at any time, for their proportions of the 5 per cent, or of any installment.

This bill ought to have been filed before he subscribed on the books.

Plain'iffs did not apply to defendants to go forward to the books, and substitute themselves for part of his stock, until February 1852, and not after until March 1853.

Equity will refuse specific performance, when from the circumstances it is doubtful whether the party meant to contract to the extent that he is sought to be charged — Story Eq, Vol. 2 sec. 116, note latter part.

The construction put upon the instrument, by the bill, is a forced construction — not warranted by the language.

Rattle, J.

An attentive examination of this ease, has led us to the conclusion that the agreement entered into between the plaintiff, Austin, and the defendants, is abinding contract, and being in writing, signed by the defendant, is one, of which the Court of Equity, acting upon its well established principles, will decree a specific performance. It may be admitted that at the time when this agreement was made, it was merely voluntary and not obligatory upon the parties for the want ’ofa consideration; but when the plaintiff, Austin, afterwards . went forward and subscribed on the books of the North Carolina Railroad Company, for eighty shares of stock, in pursuance of what was called *“*the hundred man plan,” it changed its character, and became invested with all the essential qualities of a valid contract. From, the recital which p2-ecede8 the agreement, and which is explanatory of its objects, it plainly appears that the plaintiff1, Austin, had not then become a subscriber for stock upon the books of the Railroad Company, but that he had entered into an arrangement with others to do so whenever a sufficient number of men could be *267found to secure the charter of the company by taking the required amount of stock, not taken by others.' It appears further, that this arrangement, or plan was reduced to writing and that e ch person who signed it, was called a subscriber, and in that sense, and not in the sense of having become already a subscriber on the books of the Bailroad Company, for stock, was the term used. This is clearly manifest, from its being stated expressly in the recital, that the arrangement commonly called the hundred man plan, was *“*intended to secure the charter of the North Carolina Bailroad Company.” From this recital, introduced for the very purpose of explaining the agreement, which the plaintiff, Austin, and the defendants, were about to enter into, it is clear that when the parties spoke of the “ said individual stock already taken ” by the plaintiff, they did not mean stock for which the plaintiff had alredy subscribed in the books of the company, but only what he had previously engaged with others to take, in order to secure the charter of the company. Admitting then, that when the agreement in question, was signed by the parties, the defendants were bound in honor only, and not in law to fulfill it, and that they might have notified the plaintiff, and thereby have avoided it, yet when the plaintiff relying upon their engagement to take a portion of the stock for which he might subscribe, went forward and by his subscription on the books of the company, bound himself to pay for eighty shares of stock in such manner as might be required by the company, the defendants became legally bound to relieve him by taking a certain 'portion of such stock. The weighty obligation assumed by the plaintiff of paying, either in money or work, eight thousand dollars towards the accomplishment of what was supposed a great public improvement, in which profits to the individual subscribers were indeed anticipated, but were necessarily somewhat doubtful and contingent, and were cer- • tainly not to be realized for several years, formed undoubt*268edly a *valuable*consideration for the defendant’s promise to him. But the defendants object, that the contract is one for the transfer of stock in a public company, for the breach of which, the plaintiff has his remedy at law, and that, therefore, the court of equity will not interfere to give the extraordinary relief of decreeing a specific performance. This objection might avail when applied to a contract for the sale and transfer of stock in a company, already in existence, and whose stock had in market a certain or nearly certain value. In such a case damages at law would afford an adequate and complete redress. 2 Story Eq. Sec. 717. But the slightest reflection will convince any one who turns his attention to the subject, that this is a very different case. Here the North Carolina Railroad company was just struggling into life, and the subscribers for its stock were taking upon themselves very heavy burdens, with a dim prospect of future advantage." It would therefore be manifestly impossible to give to the plaintiff, in a suit at law, damages at all commensurate with the injury which he might sustain by the failure of the defendants to fulfill their engagement with him. 1 Sto. Eq. Sec. 717, 718 719. This view of the case answers also the objection that it would operate hardly upon the defendants to compel a specific execution of their contract. It would be much harder upon the plaintiff if it should not be done. Ibid Sec. 724 et seq. It is objected further, for the defendants, that the remedy must be mutual, “ that it is requisite that a mutual enforcement in specie be practicable.” Adams Eq. 80. That is so ; and here we think there can be no doubt that the defendants could compel the plaintiff, Austin, to transfer *to*them the number of shares which they agreed to take. But it is objected again for the defendants, that though they signed the agreement in question, they did so upon the express understanding and engagement that he was to procure fo.r them contracts for work and labor in grading the track of the Rail*269road which would save them from the payment of their subscriptions in money, and that their agreement with the plaintiff was to become obligatory upon them only in the event of Ms procuring for them such contracts. These alleged stipulations of the plaintiff, were, it is admitted, not inserted in the written agreement, because the defendants thought they might rely upon the parol promise of the plaintiff to fulfill them. The doctrine of Courts of Equity is that they “ will allow the defendant to show that by fraud, accident, or mistake, the thing bought is different from what he intended ; *or that material terms have been omitted in the written agreement*/ or that there has been a variation of it by parol; or that there has been a parol discharge of a written contract,” and, that if any of these things be shown by parol, they will decline to interfere, and leave the party to his remedy at law. 2 Sto. Eq. Sec. 770. Whether the present case comes within the operation of the doctrine, it is unnessary for us to decide ; for if it does, the defendants have altogether failed in proving their allegations. Erom the proof, it rather appears that although the subject of procuring contracts for work on the road was discussed between the parties, and although a plan for obtaining such contracts by the plaintiff and the defendants and others was actually drawn up in writing, yet the paper was never signed, and was finally abandoned, and it seemed to be understood that each party was to procure for himself such contracts as he could.

Upon a review of the whole case, we think we have shown that the agreement between the plaintiff, Austin, and the defendants, is founded upon a valuable consideration; is mutual, and capable of being mutually enforced in specie; is of such a nature, that an enforcement in specie is necessary to the plaintiff, and not oppressive to the defendants, and our conclusion, therefore, is, that such agreement, being in writing and signed by the defendants, ought to be specifically enforced by this Court, Adams’ Eq. p. 78 et seq. The North *270Carolina Railroad Company, which has been made a party-plaintiff for that purpose, states its willingness to accept the defendants, as subscribers for its stock, in lieu of the plaintiff, Austin, who may, upon making a rateable deduction for the eighteen shares of which he was relieved by the company, have a decree according to his prayer.