In this case the Court of Civil Appeals of the Second Supreme Judicial District have certified to us certain questions for decision, in accordance with the provisions of section 35 of the act to organize the Courts of Civil Appeals, approved April 13, 1892. Laws of 1892, p. 31. The certificate sent to this court contains copies of the following written instruments: First. A subscription offer signed by citizens of the city of Sherman for the purpose of inducing the construction of a branch of the St. Louis, Arkansas Texas Railway to that city. This instrument nominates and appoints a committee of three citizens to make a contract on behalf of the subscribers with the railway company. Second. A contract between the committee, acting on behalf of the subscribers, and the company for the construction of the road. Third. A contract between J.H. Britton and O.T. Lyons on the one part and the railway company on the other, by which the former, among other things, bind themselves to procure the right of way and grade the road at their own cost and expense from Sulphur Springs to Sherman, and the company, in consideration thereof, assign to them the subscription list first mentioned.
The questions submitted are:
"1. Whether the subscription agreement is a separate contract, so as to admit of a separate suit thereon against each subscriber for the amount of his subscription.
"2. Whether, under the terms of the subscription agreement, the committee *Page 457 had authority to make the subsequent contracts, as shown in said exhibit.
"3. Whether, in a suit by Britton and Lyon, as assignees, or by the railway company, against one of the subscribers, the latter could interpose as a defense, in the nature of a failure of consideration, the noncompliance of the railway company with that part of the agreement which required it to locate and maintain within the city of Sherman passenger and freight depots, and to establish and maintain at said city a division of its road, and to build such round houses and machine shops as might be necessary therefor, assuming that it had complied with so much of the contract as required it to complete the construction of its road into the city of Sherman on or before the 1st of August, 1887, and to maintain, equip, and operate the same."
We are clearly of the opinion, that the first question should be answered in the affirmative, although the words "we, the undersigned, hereby promise and agree," if unqualified, would impart a joint undertaking; yet the subsequent provision in the writing, that "each subscriber" should "be liable only for the amount opposite his name," leaves no doubt that the intention was that the obligation was to be several.
The second question is more difficult. Its determination requires a conscruction of that part of the subscription paper which authorizes the committee to make a contract with the company, as well as of the contract which was actually made. In effect, the subscribers to the former instrument severally offer to pay to the company the amounts set opposite their respective names, "in consideration that the railway company shall within a reasonable time after the acceptance hereof construct, maintain, and operate a railway from or near Mount Pleasant, Texas, to Sherman, Texas, to connect with the railway of said company, it being formerly the Texas St. Louis Railway; and shall establish and maintain in the city of Sherman, at a convenient place, depots for freight and passengers." The committee, by the terms of the offer, are empowered "to make a suitable contract with the said railway company, and to provide therein for the manner of collecting this subscription, and all other details that may be found necessary as to the location of depots, and whatever else that may be of interest to the town in making the same."
By the contract which was actually entered into on behalf of the subscribers by the committee, they undertook to bind the subscribers to "procure and pay for the right of way for said company from the west line of Hopkins County to and within the limits of the city of Sherman," and to "cause to be constructed the grade of said road from the town of Sulphur Springs, in Hopkins County, to and within the corporate limits of the city of Sherman," etc. They also undertook to bind the subscribers to procure adequate depot grounds for the railway from the line of Hopkins *Page 458 County to the city of Sherman, as well as suitable and adequate grounds for depot and terminal facilities in said city.
In consideration of these undertakings on behalf of the subscribers by the committee, the railway company, among other things, agreed to accept the grade and to construct, operate, and maintain the railway to the city of Sherman, on or before the 1st day of August, 1887.
These are the prominent features of the contract, and we think they make it apparent that the committee, by executing it, exceeded the powers which the subscribers had conferred upon them. They were authorized to make out any contract which they might think would secure the construction of the road — not a contract to bind their constituents to do anything but to pay the amounts of their subscriptions, but a contract that the railway company should construct the road in consideration of the sums respectively promised by them.
The contract as actually made attempts to bind the subscribers to an undertaking not only to procure the right of way and depot grounds, but also to construct the grade. Until this was done the railway company was bound to do nothing. The offer on part of the subscribers clearly shows that it was contemplated, that in order that the railway company should avail themselves of it, it should promise to construct and maintain the road, without further aid from them than the money they had promised to pay. The contract attempts to bind them to do what they did not offer to do, and what they evidently contemplated the railway company should promise to perform. It binds the railway company to act only on condition that they should comply with stipulations which they did not authorize their committee to obligate them to perform. It is evident therefore that the contract contemplated by the subscribers and that actually made are essentially different.
If it could be said that the agreement accomplished the same result as that contemplated, and imposed no additional burden upon the subscribers, it may be that the contract should be upheld, as being substantially the same as that which was authorized. But such is not the fact.
The two contracts — that between the railway company and the committee, and that between the former and Britton Lyon — indicate that these parties contemplated that Britton Lyon should do all that the committee had promised on behalf of the subscribers, in consideration of an assignment to them of the subscription list. But the subscribers did not empower the committee to stipulate for the promise of Britton Lyon to do a part of the work, and that of the railway company to do the remainder. Besides, the railway company's promise was conditional upon the compliance of Britton Lyon with their agreement, or upon the depot grounds and right of way being provided and the grade completed by some other persons who might be substituted in their place. It follows, we think, that the contract actually made is not the same in substance as *Page 459 that contemplated by the parties to the subscription list, and that therefore the latter were not bound by it. For the reasons stated, we are of opinion that the second question must be answered in the negative.
In the view we take of the case, the third question becomes abstract, and need not be answered.
Delivered April 27, 1893.