The plaintiffs are the proper parties to recover this money in their own name. The promise is made directly to them, stating that they were to act as trustees for the subscribers. They were authorized to make assessments from time to time as the money was needed ; they were the men to whom it was made payable, by the agreement of all parties, and when paid, plaintiffs were to use it as trustees for the subscribers, in constructing buildings, which'they wore to control for the time being as such trustees, and finally convey to the corporation, when that should be formed and ready to receive the property. It might be a much more troublesome question to decide who could properly collect this money, if the plaintiffs could not.
The authorities seem uniform that where the nominal promisee is an agent, and has a beneficial interest in the performance of the contract, or a special property in the subject-matter of the agreement, the legal interest and right of action is in him ; and when a promise is made to one sustaining the character of trustee, lie and not the cestue que trust, or person ultimately interested, is the proper person to bring an action upon it. Treat v. Stanton, 14 Conn. 445; Barnes v. Insurance Co., 45 N. H. 21, 28, and cases; Doe v. Thompson, 22 N. H. 217; Goodall v. Insurance Co., 25 N. H. 169; 1 Ch. Pl. 7; Cobb v. Insurance Co., 6 Gray 192.
We do not see any objection to the amendment, the court having been satisfied, as we are to assume they were before it was allowed, that this sum specified in this new count is the identical sum which was sought and intended to be recovered under the old counts. The form and the cause of action remain unchanged. Stevenson v. Mudgett, 10 N. H. 340; Bailey v. Smith, 43 N. H. 409, and cases cited.
*527The subscription paper was introduced to sustain this count. Does this paper and the accompanying evidence, as stated in the case, sustain it? The first part of the paper is like an ordinary subscription paper. Then follows this paragraph: “This subscription is made upon the following conditions: that, when the sum of $50,000 is subscribed, said trustees are to erect, upon a lot of land lying northerly of Cheshire Railroad, belonging to Messrs. Madison Fairbanks, Daniel Buss, Horace Adams, and John Humphrey, in accordance with such plans as may be hereafter adopted and given them by the subscribers, or by a committee which they may choose for that purpose, a building or buildings suitable for manufacturing and mechanical purposes, and to furnish the same with appliances for steam-power, main-shafting, with gearing and belting appropriate therefor; and when said buildings and machinery are completed, the whole property is to be leased to the said Madison Fairbanks and his associates for a term of ten years, at a rent of six per cent, upon the whole investment, said Fairbanks & Co. paying all taxes assessed thereon, and keeping the buildings and fixtures properly insured and repaired at their own expense, giving said lessees the privilege of purchasing said property, at any time during the term of said lease, by payment of the amount expended, with interest or rent to the time of such purchase; provided, however, that the said Fairbanks, Buss, Adams, and Humphrey, before the commencement of said buildings, shall furnish proper guaranties for the acceptance and fulfilment of such lease, and shall subscribe to this paper, and convey to the said trustees the aforesaid tract of land which they purchased of Messrs. Holt. Boyce, and Greeley, at the cost of the same to them, to be held in trust for the purposes stated in the conditions of .this instrument.”
The evidence tended to show that the sum of $50,000 was subscribed, and that the buildings had been constructed; and so far as appears, we judge they may have been constructed according tq the plans adopted by the subscribers or their committee, though that fact is not-made very plain. If such was the fact, then the circumstance that the buildings cost more than the amount subscribed would be no objection, that we can see. We find nothing in the contract that makes it necessary that $50,000 should be subscribed, aside from the subscriptions of Fairbanks, Buss, Adams, and Humphrey, provided they chose to sign and helped to raise that amount; and we see nothing in this circumstance that could invalidate the contract, nor do we see that there was anything wrong in their conveying the land at cost in payment of their subscription. It made no difference, in the end, whether they conveyed the land in payment of their subscription, or received the money for the land, and then paid the money back on their subscription.
We see no objection to the form or manner of the assessments, nor would it seem that upon the evidence stated there was any substantial objection to the notice or the demand upon the defendant. But there is one point on which the proof is fatally defective. It does not appear that Fairbanks and others, before the commencement of the buildings, furnished the proper guaranties for the acceptance and fulfilment of *528said lease. Upon a careful examination of the contract, it will be seen that the subscription was made upon certain conditions to be performed by the trustees, which conditions were to be performed upon another condition precedent; and unless botli these conditions were complied with, the promise to pay the money subscribed could not be enforced. The first condition is, that “ when the sum of fifty thousand dollars is subscribed, the said trustees are to erect,” upon a certain lot of land of said Fairbanks and others, and'’in accordance with certain plans to be furnished them in a specified way, “ a building or buildings suitable for manufacturing and mechanical purposes, and to furnish the same with appliances for steam-power, main-shafting, with gearing and belting appropriate therefor.”
Then follows a statement of what is to be done with the buildings when completed; that the same are to be leased to said Fairbanks and others for ten years at six per cent, upon the whole investment; that they should pay all taxes upon the premises, should keep the same insured and in good repair; and they were to have the right at any time within the said ton years to purchase tlie property at cost and interest. Then follows the second condition : “ provided, however, that the said Fairbanks, Buss, Adams, and Humphrey, before the commencement of said buildings, shall furnish proper guaranties for the acceptance and fulfilment of sucli lease, and shall subscribe to this paper, and convey to the said trustees the aforementioned tract of land ” — describing it, and declaring the trusts for which it was to be held.
■ Here are three things that are to be done before the commencement of the buildings, viz., (1) Fairbanks and others are to furnish proper guaranties for the acceptance and fulfilment of such lease; (2) they shall subscribe to this paper, and (3) shall convey to said trustees said tract of land on which the buildings are to be built. The trustees were to build the.buildings, and, of course, it was their duty to see that these three conditions were complied with before they commenced the buildings. Two of them were performed, — the subscribing the paper, and the conveying the land upon the terms specified; but the other, which was perhaps as important as either to the subscribers, is not shown to have been complied with. We think it was necessary for the plaintiff to show this fact in order to make out his case. If money is payable upon condition precedent expressly stated, as in this case, in order to recover the money, the plaintiff must show the condition complied with.
Reading this whole contract together, we find the order in which the different parts of the transaction were to be done to be as follows : First, $50,000 was to be subscribed ; then, guaranties were to be taken from Fairbanks and others that they would take a lease of the premises when completed for ten years, and would pay a certain rent, with other stipulations as to their duties and rights ; next, they (Fairbanks and others) were to subscribe the paper, or if they had done so before, that would answer equally as well. Then they were to convey the land to the trustees, after winch the trustees were to *529build upon said land a building or buildings, &c., according to certain plans and specifications, and, when completed as specified, the property was to be leased to Fairbanks and others upon the terms and stipulations agreed. It was evidently contemplated that, after all the conditions precedent to the commencement of the buildings had been performed and complied with, the stockholders should form themselves into a body corporate under the statute, that the trustees should convey all this property when completed to said corporation, and that the corporation should lease to Fairbanks and others.
And we think a fair and just construction of this contract would require that the trustees should see that all these conditions were complied with that were to be performed before they were authorized to begin the buildings, before they could properly assess the shares, or at least could legally collect an assessment. The money was to be assessed and collected to build with, and when needed for that purpose it might be collected ; but not until the trustees had seen that all things were done that were required to be done, in order to authorize them to commence the buildings. Such a construction, we think, is eminently just, as it secures the rights of all subscribers to the paper; while no one is injured by it, as it does not cause a moment’s delay after the trustees were authorized to strike the first blow upon the buildings.
If we interpret the contract as the plaintiffs do, that the words “ this subscription is made upon the following conditions ” should mean “ this subscription is made upon the following trusts,” it would not change or affect the result. It would then be upon this condition: “ provided, however,” that said Fairbanks and others, “ before the commencement of said buildings, shall furnish proper guaranties,” etc., and'‘shall subscribe to this paper,” and shall “ convey to said trustees the before-mentioned tract of land.” In any view we can take of this contract, we think the true intention was, that not only the fifty thousand dollars should be subscribed, but that these’ guaranties should be furnished, the paper subscribed, and the land conveyed, before the trustees should begin to build, or should be authorized to collect money to build with. This construction seems necessary for the safety of the subscribers for the stock.
There are not facts enough stated in the case to show whether the evidence offered by the defendant was competent or not. We see no reason why the corporation might not mortgage its property to secure its debts, if such mortgage rvas made subject to said lease, if any such lease existed or was contemplated ; nor was the fact that no such lease had been given necessarily conclusive that the proper guaranties had not been taken of Fairbanks and others, and that there might not be sufficient reason for the delay in giving the lease, provided the company had not put it out of their power to lease according to the contract, by giving mortgages inconsistent with that arrangement. The corporation may still lease according to the arrangement originally made, so far as appears. The giving of the lease was to be subsequent to the payment of the money and the completion of the buildings, and is to be per*530formed in a reasonable time after tlieir completion ; and what would be such reasonable time, is a question of fact depending on all the circumstances of the case.
Upon, another trial, all the facts relating to the mortgage, and the reasons why a lease has not been given earlier, can be shown, if they become material. But, unless it be shown that the trustees took the proper guaranties of Fairbanks and others for the acceptance and performance of the lease, as well as to secure the subscription of $50,000, and obtain the signatures of Fairbanks and others to the paper, and their conveyance of the land to the trustees, before they began upon said buildings, we think the plaintiffs cannot recover. This vermust be set aside, and a New trial granted.