Action by the company against Shearer on a subscription to the capital stock of the company. The subscription is as follows, viz.:
“ The undersigned subscribe to the capital stock of the Evansville, Indianapolis, and Cleveland Straight Line Railroad Company, the amounts and lands attached to our names, upon the following express conditions: That the road shall be permanently located on the east side of White river, within one mile of the line run between Indianapolis and Spencer.
August 11, 1853. [Signed] William Shearer, 20,
if Martinsville is made a point.”
The complaint avers that the plaintiff has in all things fully performed the condition of the subscription.
There was a general denial filed, as well as other pleadings, which it is unnecessary to notice.
Trial by the Court, and finding for the plaintiff. Judgment on the finding, a motion for a new trial being overruled.
In a case between the same parties (10 Ind. R. 244), it was settled that the defendant was not liable on the subscription until the plaintiffs had performed the conditions upon which the subscription was made.
Upon a careful examination of the testimony, we think it was not proven that the plaintiffs had performed all the *453conditions. We think the evidence does not show that the road was permanently located “ within one mile of the line run between Indianapolis and Spencer.” This was an essential part of the condition—as much so as that the road should be located on the east side of White river, or that Martinsville should be made a point. For this reason the motion for a new trial should have prevailed.
W. A. Harrison, J. W. Gordon, and I II. Connor, for the appellant.The judgment is reversed with costs. Cause remanded for a new trial.