It is somewhat doubtful, from the terms of the instrument in question, who was to expend the money and do the work contemplated. The money was to be paid to Teller; but it is not stated in terms that he was to expend it. Assuming, as claimed on the part of the plaintiff, that the instrument implied a request to do the work, his counsel claims that a true construction of the agreement requires us to hold that the request is addressed to each one of the subscribers, and that either of them could go on and do the work. I do not think this is a reasonable construction. The terms used, and the nature of the case is such, that it is quite clear to my mind, that the parties did not contemplate this when they subscribed. It would be quite an unusual way to accomplish what the parties had in view. Under such a construction, what would give one party a preference over another and if one party commenced the work, what would prevent the interference of one or more of the others? And if several less than the whole number, attempted to do the work, who would control, and how would the work be managed? It seems to me that such a construction is not only unwarranted by the terms of the instrument, but is impracticable and absurd.
A more reasonable construction would be to hold, that the work was to be done by all, and under the direction of all the subscribers. They severally promised to contribute to a joint fund to be placed in the hands of Teller, to be expended in repairing the road. They mentioned no one who was to *Page 134 expend the money and make the repairs, and under such circumstances, as they were jointly interested in the fund and in the work, it is fair to infer, that they intended that the money should be expended and work done by them, or under their direction as a body. If this construction be the true one, it would be easy to show that the plaintiff could not maintain this action. Under such a construction, it cannot be said that there was an implied request in the instrument addressed to the plaintiff to do the work, or an express or implied promise on the part of the defendant to pay him, or that there is any proof in the case that the plaintiff did the work in reliance upon the subscriptions.
But, it seems to me, we must reach the same result, if we adopt the construction given to the instrument by the General Term, that the check was to be drawn and money expended by or under the direction of Teller. I do not mean to express a certain opinion that this is not the proper construction. It is the one most favorable to the plaintiff; and if he cannot succeed under this construction, he cannot at all.
According to this construction, the money was to be paid to Teller, and he was to expend it in making the repairs; and there was an implied request, addressed to him by each one of the subscribers, to make the repairs. But this request alone did not make the promise to pay obligatory, for the reason that Teller did not promise to make the repairs, and the promise could become obligatory only when Teller acted upon the request and made the repairs in reliance upon the subscriptions. (Trustees, etc., v.Stewart, 1 N.Y., 581; Barnes v. Perrine, 12 id., 19;S.C., 9 Barb., 202.)
There is no allegation in the complaint that Teller made the repairs, or caused them to be made. It is not even alleged that the repairs were made under his sanction, or by his authority, or with his consent. It is alleged that the plaintiff made them. The complaint seems to have been drawn up on the theory that the request of the subscribers was addressed to the plaintiff. All it is alleged Teller did was to assign the subscription paper to the plaintiff. But that paper is of no *Page 135 avail, and gives the plaintiff no cause of action, unless it is shown that the request contained by implication in it was acted upon and the repairs were made in pursuance of it, and in reliance upon the subscriptions.
But there is not only this defect in the complaint, but there was no proof that Teller ever acted upon the request. There is no proof that he ever had anything whatever to do with the repairs, or that he even knew, at the time, that the plaintiff was engaged in making them. The proof shows that the plaintiff alone made the repairs, and completed them, before the assignment by Teller to him of the subscription paper. Under such circumstances, how can it be said that Teller acted upon the request, and incurred any expense, in reliance upon the subscriptions? There is no allegation or proof that Teller adopted the work after it was done, except it may be inferred from the assignment of the subscription paper. There is no proof that Teller ever promised or agreed to make the repairs, and, hence, when plaintiff made them, he did not make them, in any sense, as Teller's agent; and, hence, Teller was in no way liable to plaintiff for the repairs made by him. Teller was, therefore, at no time in a situation to enforce the subscriptions, and he could not, by any assignment, confer upon the plaintiff the right to enforce them. He could not, by the assignment, create a cause of action which he did not have.
I am, therefore, of the opinion that neither the facts alleged, nor the facts proved, nor the facts found by the referee, are sufficient to enable the plaintiff to maintain this action; and the judgment below should be reversed and a new trial granted, costs to abide event.
All concur for reversal.
Judgment reversed and new trial ordered, costs to abide the event. *Page 136