certificate is necessary before the corporation can sue upon the contract of subscription, when the payment is made by the contract conditional upon the delivery of the certificate: Courtright v. Deeds, 37 Iowa, 503; and where a party, after the organization of a corporation, subscribed to its "preferred " capital stock, it was held that the implied promise of the company to issue the stock, and of the subscriber to pay for it, were concurrent and dependent, and an action by the company upon the subscription could not be maintained unless the company had issued or offered to issue the stock: St. Paul etc. R. R. v. Robbins, 23 Minn. 439; but the action can be maintained without a delivery or tender of the stock, if the action is to recover, not the whole price, but installments due: Minneapolis Harvester Works v. Libby, 24 [d. 327.

GENERAL FORM OF SUBSCRIPTION

- HOW MADE. The form of the subscrip

tion is immaterial, if the intent of the parties can be collected from the writing: 1 Morawetz on Private Corporations, sec. 69; Nulton v. Clayton, 54 Iowa, 425; S. C., 37 Am. Rep. 213; Monterey etc. R. R. v. Hildreth, 53 Cal. 123; Phoenix Warehousing Co. v. Badger, 67 N. Y. 294. Thus in the first of these cases, a writing, reciting an association for the purpose of organizing a bank, and stating, among other things, "the names and residences of the shareholders, with the number of shares held by each," and subscribed by the in. corporators, was held to constitute a subscription to the capital stock on the part of the signers. A subscription by a partnership name is a sufficient compliance with an act which requires a subscriber to articles of incorporation to subscribe thereto "his name, place of residence, and amount by him subscribed": Ogdensburgh etc. R. R. v. Frost, 21 Barb. 541. A subscription, it is held, cannot be delivered as an escrow, to commissioners appointed to receive subscriptions, to take effect only on a specified condition, but the subscription is absolute, and the non-performance of the condition is no defense: Wight v. Shelby R. R., 16 B. Mon. 4; S. C., 63 Am. Dec. 522.

Nor is it necessary to the validity of a subscription that it should be made in a book for that purpose: Boone on Corporations, sec. 108; Hamilton etc. Plank Road Co. v. Rice, 7 Barb. 157; Ashtabula etc. R. R. v. Smith, 15 Ohio St. 328; Stuart v. Valley R. R., 32 Gratt. 146. Thus in Woodruff v. McDonald, 33 Ark. 97, subscriptions were made on a loose sheet of paper, which was put in a bound book used as a record of the company, and the contents of this paper, with the names of the subscribers and amounts subscribed, were entered in the book by the commissioners appointed to open books of subscription, and this was held a sufficient subscription; and again it is decided that where a subscription is made in a small blank-book, and is afterwards accepted by the corporation, it is not necessary that the same should be transferred to the stock-books of the company: Brownlee v. Ohio etc. R. R., 18 Ind. 68. But of course, if a charter or general statute requires the subscription to be made in a certain form or manner, the subscription must be so made, to be binding: See Shurtz v. Schoolcraft etc. R. R., 9 Mich. 269; Car lisle v. Saginaw etc. R. R., 27 Id. 315; Parker v. Northern Central etc. R. R., 33 Id. 23; Northern Central etc. R. R. v. Eslow, 40 Id. 422.

A signature to an incomplete paper, wanting in any substantial particular, will, however, not be binding upon the signer without further assent on his part to the completion of the instrument: Dutchess etc. R. R. v. Mabbett, 58 N. Y. 397; but if he leaves the amount of his subscription blank, he may impliedly authorize those empowered to take subscriptions to fill up the blank: Jewell v. Rock River Paper Co., 101 Ill. 57.

Irregularities merely, and not substantial defects in the subscription, will

not avoid it. Thus where the legislature provides that the form of the subscription shall be with the "president, managers, and company," the contract is valid although the word "president" be omitted: Hagerstown T. Road Co. v. Creeger, 5 Har. & J. 122; S. C., 9 Am. Dec. 495; and see the cases, supra, this head. And a subscriber will be deemed to have waived all objection to the form of his subscription, where, after making it, he acts as a stockholder, and as such accepts the office of director: Lane v. Brainerd, 30 Conn. 565. The construction of a contract of subscription is for the court: Monadnock R. R. v. Felt, 52 N. H. 379. Where no place of performance is mentioned in a contract made in one state to subscribe to shares of stock of a railroad corporation established by the laws of another state, and having its road and treasury there, the contract is to be performed in the latter state, and is to be construed by the laws thereof: Penobscot etc. R. R. v. Bartlett, 12 Gray, 244; S. C., 71 Am. Dec. 753.

It has been held that a subscription may be made payable in goods: Searight v. Payne, 6 Lea, 283; and see post, "Payment of Deposit as Essential to Validity of Subscription "; but in Ohio it is held that as against creditors of the company, a subscriber cannot avail himself of the benefit of a collateral agreement by which his subscription was to be paid otherwise than in money: Henry v. Vermillion etc. R. R., 17 Ohio, 187; Noble v. Callender, 20 Ohio St.

199.

SUBSCRIPTION TO BE IN WRITING-PAROL EVIDENCE TO VARY SUBSCRIPTION. The authorities seem to agree that subscriptions to corporate stock must be in writing: Boone on Corporations, sec. 108; 1 Morawetz on Private Corporations, sec. 77; Pittsburgh etc. R. R. v. Gazzam, 32 Pa. St. 340; Pitisburgh etc. R. R. v. Clarke, 29 Id. 146, 152; Fanning v. Insurance Co., 37 Ohio St. 339; S. C., 41 Am. Rep. 517; Vreeland v. New Jersey Stone Co., 29 N. J Eq. 183. And the general rule which prevents a written contract from being varied or contradicted by parol applies. The terms of a subscription cannot, therefore, be varied by parol evidence of a special agreement made prior to or contemporaneous with the subscription: Smith v. Tallassee etc. Plank Road Co., 30 Ala. 650; Ridgefield etc. R. R. v. Brush, 43 Conn. 86; Martın v. Pensacola etc. R. R., 8 Fla. 370; S. C., 73 Am. Dec. 713; New Albany etc. R. R. v. Fields, 10 Ind. 187; Evansville etc. R. R. v. Posey, 12 Id. 363; Thigpen v. Mississippi Central R. R., 32 Miss. 347; Piscataqua Ferry Co. v. Jones, 39 N. H. 491; McClure v. People's Freight R'y, 90 Pa. St. 269; Cunningham v. Edgefield R. R., 2 Head, 23; as to show that the subscription was made on a condition: Fairfield Co. T. Co. v. Thorp, 13 Conn. 173; Wight v. Shelby R. R., 16 B. Mon. 4; S. C., 63 Am. Dec. 522; Kennebec etc. R. R. v. Waters, 34 Me. 369; North Carolina R. R. v. Leach, 4 Jones L. 340; Miller v. Hanover etc. R. R., 87 Pa. St. 95; S. C., 30 Am. Rep. 349. But undoubtedly, explanatory parol evidence is admissible: Johnson v. Wabash etc. Plank Road Co., 16 Ind. 389; Sodus Bay etc. R. R. v. Hamlin, 24 Hun, 390; Greer v. Chartier's R`y, 96 Pa. St. 391; S. C., 42 Am. Rep. 548. And in an action on a subscription to corporate stock, it is competent for the defendant to show by parol, in the absence of record evidence, that the subscription list upon which his name appeared was annulled and abandoned, and that another subscription was subsequently opened: Southern Hotel Co. v. Newman, 30 Mo. 118. A memorandum added to the formal subscription is presumed to have been made at the time of the subscription, in the absence of evidence to the contrary: Rob inson v. Pittsburgh etc. R. R., 32 Pa. St. 334; S. C., 72 Am. Dec. 792.

WHAT AGENTS CAN RECEIVE SUBSCRIPTIONS. — If the charter or general law under which a corporation is formed provides that subscriptions for

shares shall be received by agents of a particular class, no other agents can bind the company or subscribers by receiving subscriptions: 1 Morawetz on Private Corporations, sec. 64; Shurtz v. Schoolcraft etc. R. R., 9 Mich. 269; Parker v. Northern Central etc. R. R., 33 Id. 23; Northern Central etc. R. R. v. Eslow, 40 Id. 422. But if a subscription is not binding, merely because it was received by an agent who had no authority from the corporation to receive it, the want of authority may be cured by a subsequent ratification: Walker v. Mobile etc. R. R., 34 Miss. 245; Mobile etc. R. R. v. Yandal, 5 Sneed, 294. In Crocker v. Crane, 21 Wend. 211, S. C., 34 Am. Dec. 228, it was held that receiving subscriptions of stock was a ministerial act, under a statute authorizing commissioners to take subscriptions and subsequently to distribute the stock, and such act might be performed by an agent or deputy, or by any one without authority whose act is afterwards ratified by the commissioners.

NO ONE IS BOUND BY SUBSCRIPTION unless he himself executed the contract, or authorized an agent to do it for him: Coyote G. & S. M. Co. v. Ruble, 8 Or. 284; McClelland v. Whiteley, 15 Fed. Rep. 322; but of course, a subscription in the name of a third person is an act capable of ratification: McCully v. Pittsburgh etc. R. R., 32 Pa. St. 25; Philadelphia etc. R. R. v. Cowell, 28 Id. 329. A person cannot himself be held as a subscriber to corporate stock, where he makes the subcription without authority in the name of another, although he may be otherwise liable: Salem Mill-dam Corporation v. Ropes, 9 Pick. 187; S. C., 19 Am. Dec. 363; contra: State v. Smith, 48 Vt. 266, where it is said that he would bind himself and become the equitable owner of the stock.

PAYMENT OF DEPOSIT AS ESSENTIAL TO VALIDITY OF SUBSCRIPTION. - Charters and general incorporation laws frequently require subscribers to corporate stock to pay a certain sum upon each share at the time of subscription, and the question has arisen as to the effect of such a provision upon subscrip tions if the sum be not paid. It has been held, in the first place, that the payment is not a condition precedent to the incorporation or organization of the company: Smith v. Tallassee etc. Plank Road Co., 30 Ala. 650; Mitchell v. Rome R. R., 17 Ga. 574. And the rule is also maintained that non-payment will not vitiate the subscription: Illinois River R. R. v. Zimmer, 20 Ill. 654, 657; Goodrich v. Reynolds, 31 Id. 490, 496; Wight v. Shelby R. R., 16 B. Mon. 4; S. C., 63 Am. Dec. 522; Vicksburg etc. R. R. v. McKean, 12 La. Ann. 638; Minneapolis etc. R'y v. Bassett, 20 Minn. 535; S. C., 18 Am. Rep. 376; Henry v. Vermillion etc. R. R., 17 Ohio, 187; Stuart v. Valley R. R., 32 Gratt. 146; Pittsburgh etc. R. R. v. Applegate, 21 W. Va. 172. It has, however, been held by other cases that payment was a condition precedent to make the subscription binding: Hibernia T. Corp. v. Henderson, 8 Serg. & R. 219; S. C., 11 Am. Dec. 593; Fiser v. Mississippi etc. R. R., 32 Miss. 359; State Ins. Co. v. Redmond, 1 McCrary, 308; Wood v. Coosa etc. R. R., 32 Ga. 273; com. pare Mitchell v. Rome R. R., 17 Id. 574; and this view was maintained by an early case in New York: Jenkins v. Union T. Road, 1 Caines Cas. 86, which was approved in Highland T. Co. v. McKean, 11 Johns. 98, although it was there held that where the subscriber was a commissioner to receive subscriptions, and subscribed while the subscription book was in his hands, he would be considered as having made the required payment. See to the same effect Ryder v. Alton etc. R. R., 13 Ill. 516; but the authority of Jenkins v. Union T. Road, supra, has been disapproved in Lake Ontario etc. R. R. v. Mason, 16 N. Y. 451; Rensselaer etc. Plank Road Co. v. Barton, Id. 457, note; compare Excelsior Grain Binder Co. v. Stayner, 25 Hun, 91; S. C., 58 How. Pr. 273;

61 Id. 456. Where this latter construction is adopted, and payment is regarded as a condition precedent, the payment need not necessarily be made at the outset, but it is sufficient if it be made at a subsequent time: Black River etc. R. R. v. Clarke, 25 N. Y. 208; Ogdensburgh etc. R. R. v. Wolley, 34 How. Pr. 54; Excelsior Grain Binder Co. v. Stayner, supra; Fiser v. Missiasippi etc. R. R., supra; Barrington v. Mississippi Central R. R., 32 Miss. 370; and the subsequent payment may be made in services: Beach v. Smith, 30 N. Y. 116. But it is held in Pennsylvania that where one subscribed after the organization of the company, his failure to make a payment at the time of subscribing did not invalidate his contract: Erie etc. Plank Road Co. v. Brown, 25 Pa. St. 156; Philadelphia etc. R. R. v. Hickman, 28 Id. 318; compare Bucher v. Dillsburg etc. R. R., 76 Id. 306, 312; Garrett v. Dillsburg etc. R. R., 78 Id. 465. The payment may be made for the subscriber by a third person, and ratified by the subscriber: Mississippi etc. R. R. v. Harris, 36 Miss. 17. As was stated above, payment may be made in services: Beach v. Smith, supra; and payment by a certified check is sufficient: In re Staten Island etc. R. R., 37 Hun, 422; compare Thorp v. Woodhu”, I Sandf. Ch. 411; or by a check drawn against a sufficient fund, and which would have been paid on presentation: People v. Stockton etc. R. R., 45 Cal. 306; S. C., 13 Am. Rep. 178; or by a note: Greenville etc. R. R. v. Woodsides, 5 Rich. L. 145; S. C., 55 Am. Dec. 708; Vermont Central R. R. v. Clayes, 21 Vt. 30, 35; contra: Leightly v. Susquehanna etc. T. Co., 14 Serg. & R. 434. If the subscription or the by-laws, but not the charter, requires the payment, failure to pay will not vitiate the subscription: Water Valley Mfg. Co. v. Seaman, 53 Miss. 655; Piscataqua Ferry Co. v. Jones, 39 N. H. 491.

SUBSCRIPTIONS UPON CONDITION. - Unless forbidden by charter or statute, conditional subscriptions may be received by a corporation: Boone on Corporations, sec. 110; New Albany etc. R. R. v. McCormick, 10 Ind. 499; S. C., 71 Am. Dec. 337; Keller v. Johnson, 11 Ind. 337; S. C., 71 Am. Dec. 355; Branham v. Record, 42 Ind. 181, 199; Henderson etc. R. R. v. Leavell, 16 B. Mon. 358, 364; Taggart v. Western Maryland R. R., 24 Md. 563, 595; Jacks v. City of Helena, 41 Ark. 213. In Pennsylvania, subscriptions made before a corporation is organized must be unconditional, but after incorporation they may be conditional: Pittsburgh etc. R. R. v. Stewart, 41 Pa. St. 54, 58; Pittsburgh etc. R. R. v. Biggar, 34 Id. 455; Bedford R. R. v. Bowser, 48 Id. 29; Caley v. Philadelphia etc. R. R., 80 Id. 363; a conditional subscription before organization would be taken as absolute, and the condition simply be regarded as void. The early turnpike act of New York, it is also held, conferred no power on commissioners to receive conditional subscriptions, and such subscriptions were contrary to public policy, and void: Butternuts etc. T. Co. v. North, 1 Hill, 518; Fort Edward etc. Plank Road Co. v. Payne, 15 N. Y. 583.

If a subscription be made upon condition, it is not binding until the condition is complied with; and on the other hand, when the condition is performed, the subscriber is liable: Boone on Corporations, sec. 110; note to banklin Glass Company v. Alexander, 9 Am. Dec. 101; Santa Cruz R. R. v. Bch cartz, 53 Cal. 106; Martin v. Pensacola etc. R. R., 8 Fla. 370; S. C., 73 Am. Dec. 713; Evansville etc. R. R. v. Shearer, 10 Ind. 244; Jewett v. Law renceburgh etc. R. R., Id. 539; Junction R. R. v. Reeve, 15 Id. 236; Indianapolis etc. R. R. v. Holmes, 101 Id. 352; Merrill v. Gamble, 46 Iowa, 615; Banet v. Alton etc. R. R, 13 Ill. 514; Penobscot etc. R. R. v. Dunn, 39 Me. 587; Central T. Corp. v. Valentine, 10 Pick. 142; Swartwout v. Michigan etc. R. R., 24 Mich. 389; Burrows v. Smith, 10 N. Y. 550; Dorris v. Sweeney, 60 Id. 463; Hamilton etc. Plank Road Co. v. Rice, 7 Barb. 157; Chamberlain v. Painesville etc. R. R.,

15 Ohio St. 225; Ashtabula etc. R. R. v. Smith, Id. 328; Philadelphia etc. R. R. v. Hickman, 25 Pa. St. 318; Spartanburg etc. R. R. v. De Graffenreid, 12 Rich. L. 675; S. C., 78 Am. Dec. 476; Lowe v. E. & K. R. R., 1 Head, 659. If a subscription be on condition that a railroad should "locate and construct" its road along a certain route, the condition is complied with by the location of the road: Miller v. Pittsburgh etc. R. R., 40 Pa. St. 237; S. C., 80 Am. Dec. 570; Swartwout v. Michigan etc. R. R., 24 Mich. 389; McMillan v. Maysville etc. R. R., 15 B. Mon. 218; S. C., 61 Am. Dec. 181; and where a subscrip tion is made to the stock of a railroad, on condition that the final location of the road should be upon a certain route, the permanent location of the road contemplated by the contract is the adoption by the directors of the route mentioned: Smith v. Allison, 23 Ind. 369, citing the principal case. Where a subscription is made on condition that a certain sum be subscribed by the citizens of a certain place, a subscriber is a citizen of that place, within the meaning of the condition, if he boards, does business, and spends nearly all his time there, although he was domiciled in another place: Union Hotel Co. v. Hersee, 79 N. Y. 454; S. C., 35 Am. Rep. 536.

A condition upon which a subscription depends may, of course, be waived. And it has been held that a promissory note, subsequently given for a con. ditional subscription, was a waiver of the condition, in O'Donald v. Evansville etc. R. R., 14 Ind. 259; Evansville etc. R. R. v. Dunn, 17 Id. 603; compare the principal case. So in Chamberlain v. Painesville etc. R. R., 15 Ohio St. 225, it was held that the giving by a subscriber of his note for the balance of his subscription, and taking therefor from the company a receipt stipulating that, when paid, the amount of the note should be applied on his stock, is prima facie a waiver of conditions precedent; and in Slipher v. Earhart, 83 Ind. 173, it was decided, distinguishing the principal case, that a subscriber for corporate stock, payable on certain conditions, by subsequently giving notes for the amount payable on the happening of the conditions, but omitting to mention one condition, thereby waived the omitted condition. A sub. scriber also waives a condition precedent by executing a deed of lands, absolute in form, in payment therefor, and receiving the stock of the corporation: Parks v. Evansville etc. R. R., 23 Id. 567.

WITHDRAWAL OR RELEASE OF SUBSCRIBER.-A subscriber, properly speak. ing, to corporate stock has no power to rescind his contract at pleasure and withdraw from the corporation: 1 Morawetz on Private Corporations, sec. 109; Selma etc. R. R. v. Tipton, 5 Ala. 787; S. C., 39 Am. Dec. 344; United Society v. Eagle Bank, 7 Conn. 456; Bishop's Fund v. Eagle Bank, Id. 476; Klein v. Alton etc. R. R., 13 Ill. 514; Ryder v. Alton etc. R. R., Id. 516; Muskingum Valley T. Co. v. Ward, 13 Ohio, 120; S. C., 42 Am. Dec. 191; Johnson v. Wabash etc. Plank Road Co., 16 Ind. 389; Hughes v. Antietam Mfg. Co., 34 Md. 316; compare Payne v. Bullard, 23 Miss. 88; S. C., 55 Am. Dec. 74; nor can the agents of the corporation consent, on its behalf, to the withdrawal of a subscriber: 1 Morawetz on Private Corporations, sec. 109; Bedford R. R. v. Bowser, 48 Pa. St. 29; Hughes v. Antietam Mfg. Co., supra; Jewett v. Valley R'y, 34 Ohio St. 601; Chouteau Ins. Co. v. Floyd, 74 Mo. 286; Gill v. Balis, 72 Id. 424; Upton v. Tribilcock, 91 U. S. 45, 48; and the president of a corporation has no authority by virtue of his office to consent that an absolute and unconditional subscription shall be changed so as to become conditional, to the prejudice of the company or its creditors: Morgan Co. v. Thomas, 76 Ill. 120. In Greer v. Chartier's R'y, 96 Pa. St. 391, S. C., 42 Am. Rep. 548, it was held that where a person receives the subscription book of a corporation to procure subscriptions, and enters his name therein as a subscriber, and persuades others to