(dissenting.) I agree that the warning for the town meeting of September 30th, 1871, was illegal; but I cannot agree that such illegality is a defense to this action.
1. A special town meeting was held on the 12th day of September, 1872, to make such use of the second mortgage collaterals of the railroad company to be held by the town as would secure the “immediate completion of the road,” and to pay interest on its mortgage bonds, &c., “ and also for the purpose of taking such further action as will best secure the objects above mentioned.” At that meeting it was voted — “ that we let the conditions of the vote of the town to guarantee the second mortgage bonds of the New Haven, Middletown and Willimantic Railroad Company remain as they now stand, and that no Middletown man be allowed to address this meeting.” I regard this as a recognition of the vote as valid and as constituting a part of a valid contract. It clearly contemplates a performance of the contract by the other party and insists upon all the advantages to be derived from it. While this may not of itself be an affirmance of the previous vote, it has an important bearing in connection with the other facts upon the question of estoppel.
*322. The conditions of the original vote provided, among other things, that before the bonds should be guaranteed the road should be completed to Willim antic, and that a passenger station should be located at a given place at which all passenger trains stopping at any station between Portland and Willimantic should stop. These conditions were substantially complied with on the 1st day of March, 1873. Up to this time no.step had been taken by any one in behalf of the town to prevent the guarantee of the bonds under the vote, or to repudiate the agreement of which the vote formed a part. All parties acquiesced in it and the town clerk certified to 'the railroad company, to the other towns, and to other parties concerned, that it was a legal vote. As soon as the road was completed and trains commenced running a town meeting was held to take measures to restrain the town and its officers from performing its agreement. After the town had gained all it could or expected to gain, had in fact secured a substantial performance of the contract by the other party, then for the first time it sets up a mere technicality as a reason why it should not perform its contract. This defense so closely resembles a fraud that I cannot give it my sanction.
3. One condition of the vote was that “no bonds shall be guaranteed until the other towns on the road shall have voted to guarantee four hundred and seventy-two thousand dollars of the same kind of bonds which are guaranteed by this town.” The other towns made their respective votes to depend upon a similar condition. Relying upon the legality of the vote of the defendant town, the other towns ■guaranteed bonds as they had agreed to, and the railroad 'company and contractors made and executed contracts and expended their money in constructing the road and putting it in a working condition, relying upon the town of Hebron to bear its share of the burden. But that town, with full knowledge of the circumstances, permitted the work to go forward to completion, and afterwards, on the 21st day of November, 1874, its selectmen finally refused to guarantee the bonds for the sole reason that the vote was illegal. As *33I view the case it is good law as well as good morals to hold the town estopped from denying the legality of the vote; and that the contractors, who have been induced to expend their money, and those who stand in their places, may well insist upon the estoppel and that the town should perform its agreement.