dissenting. — Accepting the rule of law which courts of equity will insist upon in the reformation of written agreements, set forth in the foregoing opinion as substantially correct, although rather sharply cast, in comparison with the same doctrine concisely stated by Judge Story xn his Treatise onEquity Jurisprudence, vol. 1, §§ 152-162, nevertheless my reading of the testimony in the case satisfies me that the real contract between the parties was clearly and beyond any reasonable doubt a conditional one, which condition was never fulfilled on the part of the company, and that its non-insertion in the written contract was wholly an innocent and inadvertent omission, growing out of the admitted fact, perhaps, that the railroad company had, at the time of making the said agreement, already settled the question of location, and let a contract forfhe construction thereof, under which work was then being done; and also the further fact that the agreement in question was prepared and drawn up for signature by a scrivener, a stranger to the transaction, and who, for some unexplained reason, failed to express the full terms of the agreement as it was intended by the parties.
Again, if there was the least doubt that the parties intended that the agreement should express the conditional portion of the contract, the same is entirely removed by their subsequent acts. Soon after the alleged contract was entered into, the company abandoned the location of their-road up the Langworthy Hollow, whereupon the defendant at once demanded the repayment to him of the fifty dollars which he had paid on his subscription. This was done by Edward Langworthy, the agent of the company, who had made the contract with the defendant only some two months *394before. The subscription note was not taken up, although the contract was rescinded, because it was not in the possession of Mr. Langworthy, but in the custody of the treasurer of the company, at another office; yet the defendant had permission to go and take the same up, which he neglected to do at the time.
The acquiescence of the company for more than two years in the recession of the contract by their acknowledged agent, because of a failure to comply with the condition upon which the stock had been taken, without complaint, or without requiring of the agent to pay the fifty dollars which he had returned to the defendant, or without calling upon the defendant to pay any portion of the residue of his subscription, is such a ratification of the act of their agent in the premises as estops them, in my opinion, from denying his power to refund the money, or of rescinding the contract, for the reasons stated. All this occurred in the spring of 1857. The plaintiffs took an assignment of this canceled subscription note in the fall of 1859. If it had any legal existence at that time, it was over due, of course, the plaintiffs received it subject to the equities of the defendant against the company. The judgment below, as I think, should be affirmed.