#### Paint Lick Turnpike Co. *v.*E. B. Wallace & Others.

Subscriptions — Payment.

Persons who subscribe for stock in a turnpike company can not refuse to pay their subscriptions until the road has been built through their lands, in the absence of a stipulation in a subscription contract to that effect.

APPEAL FROM MADISON CIRCUIT COURT.

January *14,*1873.

Opinion by

Judge Pryor:

There is some conflict in the testimony as to the benefits resulting to the appellees from the partial construction of the turnpike road to or near their lands. It is evident from the statements of the appel-lees themselves that the original design of the company was to build the road from the railroad as far as Flat Gap.

The stockholders or subscribers were all desirous of having the road located on a certain route, and so far as the proof shows and to the extent the road had been completed, it is located on the' ground contemplated by all the parties. The testimony is clear and conclusive that Wallace, one of' the appellees, was satisfied with its location and .construction with reference to- his farm- on which he lived, but he is insisting, as well as. his co-appellees, the two- bankers, that before they can be compelled to pay their money subscribed the road must be finished to Mason’s Fork, or extended up that branch of the principal creek. Their subscription, however, is not based upon the condition that the road is to- be completed to that point before they are made to pay. If so-, the road must be-abandoned and the subscribers released from the payment of the money claimed. They, however, agree to pay, provided the road runs to- a certain point and then up a particular creek, having reference to the location of the road and not the payment of the money.

They agree to pay in such calls as are made upon them by the company, and if when these calls are made it appeared that the route had been changed and the company had located the road upon a different creek than the one agreed on, then no recovery could *317be had. The only mode of making the road run to the point designated by the subscription is for the appellees to pay the money, so as to enable the company to construct it. Wallace and I. A. Baker own land very near this turnpike road. It runs onto the land of Wallace, and within a few hundred yards of the land of I. A. Baker. Prior to' its construction they had from five to seven miles of dirt road to travel over in order to get to the railroad depot. Now they have five miles of turnpike to travel' upon.

*Burnam, for appellant.*

*Carpenter, for appellees.*

If these appellees are released, all the parties to the contract, or who subscribed, might have refused to pay until the road was completed through their lands, and thus prevented any effort at its construction. If the parties did not intend to pay the money until the road was finished, they should have so stipulated. No road could be made, as said by this court in the case of *McMillan v. The Maysville and Lexington Road,*15 B. Monroe 234, if under such subscription the payment can be postponed and the completion of the road demanded. There was no objection in the court below to a prosecution of the joint action for these several liabilities.

The judgment is reversed with directions to the court below to render a separate judgment for the amount due by each of the appellees, to be credited by any amount due them by the road, and if the appellees desire to take proof on this subject they should be permitted to do so.