received by Janney merely as an escrow, or as in the nature of an escrow, only to be delivered or used upon the performance of certain conditions precedent, and that until they were performed there could be no valid delivery.

In determining this question it becomes important to consider the nature of a subscription to the stock of a proposed corporation, and the relation of the different parties to each other under the facts of this case. A subscription by a number of persons to the stock of a corporation to be thereafter formed by them has in law a double character: First. It is a contract between the subscribers themselves to become stockholders without further act on their part, immediately upon the formation of the corporation. As such a contract it is binding and irrevocable from the date of the subscription (at least in the absence of fraud or mistake), unless canceled by consent of all the subscribers before acceptance by the corporation. Second. It is also in the nature of a continuing offer to the proposed corporation, which, upon acceptance by it after its formation, becomes as to each subscriber a contract between him and the corporation. I Mor. on Priv. Corp., § 47, et seq.; Red Wing Hotel Company v. Frederich, 26 Minn. 112, 1 N. W. Rep. 827. Janney, the promoter, who solicited and obtained the subscriptions, occupied the position of agent for the subscribers as a body, to hold the subscriptions until the corporation was formed in accordance with the terms and conditions expressed in the agreement and then turn it over to the company without any further act of delivery on the part of the subscribers. The corporation would then become the party to enforce the rights of the whole body of subscribers. It follows then, that, considering the subscription as a contract between the subscriber, a delivery to Janney by a subscriber was a complete and valid delivery, so that his subscription became eo instanti a binding contract. The case stands precisely as a case where a contract is delivered by the obligor to the obligee. It cannot therefore be treated as a case where the writing has been delivered to a third party in escrow.

The defendant, however, attempts to bring the case within the rule of Westman v. Krumweide, 30 Minn. 313, 15 N. W. Rep. 225, in which this court held that parol evidence was admissible to show that a note delivered by the maker to the payee was not intended to be operative as a contract from its delivery, but only upon the happening of some contingency, though not expressed by its terms; that is, that the delivery was only in the nature of an escrow. We so held upon what seemed the great weight of authority, although the doctrine, even to the extent it was applied in that case, is a

somewhat dangerous one. The distinction between proving by parol that the delivery of a contract was conditional, and that the contract itself contained a condition not expressed in the writing, is one founded more on refinement of logic than upon sound practical grounds. It endangers the salutary rule that written contracts shall not be varied by parol. Said Earl, J., in Pym v. Campbell, 6 El. & Bl. 370, in sustaining such a defense: "I grant the risk that such a defense may be set up without ground, and I agree that a jury should, therefore, look on such a defense with suspicion." And in all the cases where such a defense has been sustained, so far as we can discover, they have been cases strictly between the original parties, and where no one has changed his situation in reliance upon the contract and in ignorance of the secret oral condition attached to the delivery, and hence no question of equitable estoppel arose. Many of these cases have been careful to expressly limit the rule to such cases. Benton v. Martin, 52 N. Y. 570; Sweet v. Stevens, 7 R. I. 375.

Conceding the rule of Westman v. Krumweide, supra, to its full extent, there are certain well-recognized doctrines of the law of equitable estoppel which render it inapplicable to the facts of the present case. This subscription agreement was not intended to be the sole contract of defendant. It was designed to be also signed by other parties, and from its very nature defendant must have known this. Each succeeding subscriber executed it more or less upon the faith of the subscriptions of others preceding it. The paper purports on its face to be a completed contract, containing all the terms and conditions which the subscribers intended it should. When this agreement was presented to others for subscription, defendant had not only signed it in this form, but he had also done what, under the facts, constituted, to all outward appearances at least, a complete and valid delivery. He had placed it in the proper channel according to the ordinary and usual course of procedure for passing it over to the corporation when organized, and clothed Janney with all indicia of authority to hold and use it for that purpose without any other or further act on his part, untrammeled by any condition other than those expressed in the writing. In reliance upon this, others have not only subscribed to the stock, but have since paid in a large share of it. The corporation has been organized and engaged in business, expending large sums of money and contracting large liabilities, all upon the strength of these subscriptions to its stock, and in entire ignorance of this secret oral condition which defendant now claims to have attached to the delivery. To permit defendant to relieve himself from lia

bility on any such ground, under this state of facts, would be a fraud on others who have subscribed and paid for stock, upon the corporation which has been organized and incurred liabilities in reliance upon the subscriptions, and on creditors who have trusted it. The familiar principle of equitable estoppel by conduct applies, viz. Where a person, by his words or conduct, willfully causes another to believe in the existence of a certain state of facts, and induces him to act on that belief so as to alter his own previous condition, he is estopped from denying the truth of such facts to the prejudice of the other.

We have examined all the numerous cases cited by the defendants' counsel, and fail to find one which, in our judgment, is analogous in its facts, or the law of which will cover the present case. The two which at first sight might seem most strongly in his favor are Beloit and Madison R. Co. v. Palmer, 19 Wis. 574, and Ottawa, etc. R. Co. v. Hall, 1 Bradw. (Ill. App.) 612. But an examination of these cases will show that in neither did or could any question of estoppel arise, and in both the court held that the person to whom the instrument was delivered after signature was a stranger to it, so that it was strictly a delivery in escrow to a third party. Cases are cited where a surety signed a bond or nonnegotiable note, and delivered it to the principal obligor, upon condition that it should not be delivered to the obligee until some other person signed it, and where, without such signature, the principal obligor delivered it to the obligee, and yet the courts held that the surety was not liable, although the obligee had no notice of the condition. Such cases seem usually to proceed upon the theory that a delivery to the principal obligor under such circumstances is a mere delivery in escrow to a stranger; the term "stranger" in the law of escrows being used in opposition merely to the party to whom the contract runs. It may well be doubted whether in such cases, where the instrument is complete on its face, the courts have not sometimes ignored the law of equitable estoppel. No such defense would be allowed in the case of negotiable paper, and it is not clear why the distinction should be drawn on that line. The doctrine of estoppel rests upon totally different grounds, and operates independently of negotiability, being founded upon principles of equity. But whether the cases referred to be right or wrong, we do not see that they are in point here. Our conclusion is that the court erred in admitting the evidence objected to, and for that reason a new trial must be awarded.

Order reversed.

STRASBURG RAILROAD COMPANY V. ECHTERNACHT.

21 Penn. St. Reports 220 (1853).

Certiorari to the common pleas of Lancaster county.

This was a bill in equity on the part of the railroad company, filed with a view of enforcing the specific performance of an agreement, which was as follows:

"We, the undersigned, agree to take the number of shares of the capital stock of the Strasburg Railroad Company, set opposite to our respective names, the price per share to be $100, provided there can be a charter obtained at the next ensuing session of the legislature of Pennsylvania, granting said company to terminate said. road at the east end of the borough of Strasburg, and connecting with the state road at or near Lemon Place; granting also the said company to do all the business connected with the road, such as forwarding and receiving produce of all kinds, coal, lumber, and all other commodities as are transportable over other railroads."

William Echternacht, the defendant, was a signer for five shares. Application was made to the legislature, and on the 11th of February, 1851 (which was during the next ensuing session after the signing of the agreement), the act to incorporate the Strasburg Railroad Company was passed (Pam. L. p. 53), the provisions of which are in accordance with the terms specified in the above agreement.

The road was commenced, and it was alleged that the property of the defendant rose in value. He, however, refused to subscribe. to the stock of the company, and the bill in question was filed. Demurrer.

The demurrer was sustained by the court below, and the bill was dismissed; and to this error was assigned.

BLACK, C. J. Before the Strasburg Railroad Company was incorporated the defendant and others signed a paper, agreeing that if it should be incorporated with certain privileges, they would subscribe the number of shares set opposite to their respective names. The charter was obtained, and the defendant refused to take the stock. Whereupon the company brought this bill in equity to enforce specific performance of the contract.

A contract cannot be made by one person alone. It takes two to make a bargain. Before a promise becomes a binding obligation, it must not only be made to, but must be expressly or impliedly accepted by the party for whose benefit it was meant. The paper before us is no more than a naked expression of the subscriber's intention to purchase certain shares in the capital stock of a company which it was expected would be incorporated by the legisla

ture. Besides it is without any sufficient consideration. It is not pretended and cannot be made out from the paper that the agreement of the defendant was the motive of the others for taking stock. It is well settled that procuring legislation of any kind, is not a consideration which will support even a direct promise to pay a fair compensation for the labor of the promisee about such a business.

Again: If there was a binding engagement it was not made with the railroad company, which did not exist at the time.

But, supposing this to have been a valid contract, to which the plaintiff was a party, and based upon good consideration, a bill in equity is not the mode of enforcing it; the remedy at law for its violation being full, complete and adequate.

Decree affirmed.

BRYANT'S POND STEAM MILL COMPANY V. JOHN G. FELT.

On report.

87 Maine Reports 234 (1895).

This was an action of assumpsit brought to recover of the defendant the sum of two hundred dollars, as appeared by his alleged subscription upon an original subscription book, and upon the outer cover of which was the following writing: "Subscriptions for a steam mill to be erected at or near Bryant's Pond." The original agreement was as follows:

"We, the undersigned, hereby agree to pay for the number of shares set opposite our names, said shares to be ten dollars each, and nonassessable, for the purpose of erecting suitable buildings, with steam power, for the manufacturing of various kinds of wood to be used in the contract of one C. H. Adams, he paying three per cent. annually as rent on all money so paid, said moneys to be paid when needed for the purpose above named, provided the town will abate taxes on said buildings and stock for the term of ten years."

Plea, general issue and the following brief statement:

And for a brief statement of special matter of defense, to be used under the general issue pleaded, the defendant further says: That said defendant never subscribed for nor promised to pay for any shares in the said Bryant's Pond Steam Mill Company; that the signature of said defendant was procured and affixed to said. paper declared on, if at all, on Sunday, and whatever contract was made, if any, was made on Sunday, and therefore void; that sub