By the Court,
DIXON., C. J.I think that Bedford was not the agent of the railroad company so that a delivery to him was a delivery to the company; or so that the condition may not be shown to defeat the subscription in the hands of the company. I do not see how he was the agent of the company in any sense, but if he was, it was a qualified and subordinate agency growing out of his appointment as one of the committee on the part of the subscribers. The company never made him its agent, and he had no authority to act for it except what is to be inferred from the fact that he was permitted as *581a member of tbe committee to solicit and receive subscriptions, and that he might have done without such permission. It is clear from the evidence that he was primarily the agent of the subscribers. As such he received the subscription, and as such it was competent for him to take and hold the list as an escrow. I think for this purpose he is to be regarded solely as the agent of the subscribers. It is also equally clear from the evidence that he received the subscription list to be delivered to the company upon a condition which has never been performed. It is therefore inoperative in the hands of the company as against the defendant. In this view we see no error in the giving or refusing of instructions, and nothing in the admission or rejection of evidence for which the verdict ought to be disturbed.
Judgment affirmed.