ing from the negligence of the person doing the work, which is dangerous in itself. District of Columbia v. Woodbury, 136 U. S. 450; 10 Sup. Ct. Rep'r, 990. In an action against a city for personal injuries caused by the falling of an awning on plaintiff while passing along the sidewalk, evidence that the awning for several years had been covered with boards in violation of an ordinance, and that snow had been allowed to accumulate on it for some time before the accident, the weight of which caused the fall, is sufficient to warrant a finding that the city was chargeable with notice of its defective condition. Bieling v. Brooklyn, 120 N. Y. 98; 24 N. E. Rep'r, 389.

Where suitable notices are posted and barriers erected by a county on an unsafe county bridge, and the barriers are afterward removed without the county's knowledge or consent, the county is not liable for injuries sustained by a person in attempting to cross the bridge, if it had no actual knowledge of the removal of the barriers, or could not have known of it by the use of reasonable care and diligence. Weirs v. Jones County, 80 Iowa, 351; 45 N. W. Rep'r, 883.

Where plaintiff testified that in stepping across a hole in the sidewalk she stepped upon a board apparently sound, but in fact broken, it was error to charge that if the defendant had notice of the hole, but not of the defect in the board, it was nevertheless liable, if in repairing the hole, the defect in the board would have been discovered. Fuller v. City of Jackson, 82 Mich. 480; 46 N. W. Rep'r, 721.

Notice to the city may be inferred by the fact that the defect in the sidewalk is immediately in front of the mayor's residence, and that he was accustomed to pass over it daily. Michigan City v. Ballance, 123 Ind. 334; 24 N. E. Rep'r,

117.

12. Pleading.—Questions as to the sufficiency of the complaint as showing negligence on the part of the defendant or as excluding the inference of contributory negligence on the part of the plaintiff, are considered in the following cases: City of Columbus v. Strassner, 124 Ind. 482; 25 N. E. Rep'r, 65; New Albany v. McCulloch, 127 Ind. 500; 26 N. E. Rep'r, 1074; Balbridge & Courtney Bridge Co. v. Cartrell, 75 Tex. 628; 13 S. W. Rep'r, 8; Elkhart v. Witman, 122 Ind. 538; Campbell v. Kalamazoo, 80 Mich. 655; 45 N. W. Rep'r, 652.

13. Evidence of other accidents.— On the trial of an action against a town for an injury occasioned by a defect in a highway, when one of the issues in the case was the position of a plank at the end of a bridge, and whether it rendered the way unsafe for travelers, evidence that other persons with their vehicles had received injuries at the place of the alleged defect is not admissible to show that the way is defective. Bremner v. Newcastle, 83 Me. 415; 22 Atl. Rep'r, 382. To the same effect, Mathews v. Cedar Rapids, 80 Iowa, 459; 45 N. W. Rep'r, 894.

In an action against a city for personal injuries sustained in a fall on a sidewalk, caused by plaintiff's slipping on a mound of ice, the testimony of a witness that, two years prior to said accident, he fell on the ice at the same place is incompetent to show either that the walk was unsafe or that defendant had notice of its condition. Gillrie v. Lockport, 122 N. Y. 403; 25 N. E. Rep'r, 357.

14. Evidence of other defects in close proximity to one causing the accident. In an action for injuries caused by a defect in a sidewalk, evidence of other defects, in close proximity to the one causing the injury, is admissible as tending to show notice to the municipal authorities of such defect. O'Neill v. Village of West Branch, 81 Mich. 544; 45 N. W. Rep'r, 1023. So where the injury was occasioned by a loose plank in a sidewalk, it was held competent to show that the walk was defective for the entire block, as tending to show notice to the defendant. McConnell v. City of Osage, 80 Iowa, 293; 45 N. W. Rep'r, 550.

15. Statute providing for joint action against the city and the person causing the defect. The charter of the city of Sheboygan (Laws Wis. 1874, chap. 236) provides that, where a personal injury has happened through a defect in a street caused by the negligence of a third person, the city shall not be liable until all remedies against the negligent person have been exhausted. A subsequent general act (Laws Wis. 1889, chap. 471) provides that, where an injury “has happened” as above described, the negligent person shall be primarily liable, but the city may be joined as defendant with him, and judgment shall be entered against all parties found liable; but further action against the city shall be stayed until an execution against the negligent person has been returned wholly or partially unsatisfied. Held, the general statute, though retroactive, affects a remedy only, and, therefore, applies to an injury for which suit was pending when it was enacted. Raymond v. Sheboygan, 76 Wis. 335; 45 N. W. Rep'r, 125. Since the enactment of this general statute, the city is not merely a guarantor of the collectibility of the judgment against the negligent person, and, therefore, is not released from liability by delay in prosecuting the claim. Id.

16. Statute exempting city from liability for misfeasance or non-feasance of its officials.—Laws of New York, 1873, chapter 863, title 19, section 27, exempting the city of Brooklyn from liability for any misfeasance or non-feasance of the common council or of any of the city officials in the discharge of any duty imposed on them as officers, does not relieve the city from liability for failure to discharge any of its corporate functions, one of which is the duty of keeping its streets in repair; and the commissioner of city works and his subordinates, who are placed in charge of the streets, subject to the direction of the common council, must be treated as mere instrumentalities created to perform for the city its corporate function, for whose negligence it remains liable. Bieling v. Brooklyn, 120 N. Y. 98; 24 N. E. Rep'r, 389.

PLANK'S TAVERN Co. v. BURKHARD ET AL.

(Supreme Court of Michigan, July 28, 1891.)

1. STOCK AND STOCKHOLDERS.

PRELIMINARY AGREEMENT TO TAKE STOCK. LIABILITY. Defendants signed a subscription paper reciting that "we, the undersigned citizens of S., promise to pay the trustees of the hotel to be built at S. the sums set opposite our names, to be taken as stock, $25 per share." It was represented to them by the citizens' committee, soliciting subscriptions

VOL. V.-8

that the hotel would cost $150,000, and that this paper was informal, and was merely "to see what could be done," and that a binding subscription paper would be presented later. When this was presented, defendants refused to sign. Afterward a corporation was formed, and an hotel built, costing about $110,000, and stock to the amount subscribed was tendered, but refused by defendants. Held, that they were not liable to the corporation for the sum thus subscribed. Distinguishing Association v. Walker, 47 N. W. Rep'r, 338; 83 Mich. 386.

RROR to circuit court, Berrien county, Thomas O'Hara, judge. Action by the Plank's Tavern Company against Joseph H. Burkhard and another upon a stock subscription. Verdict directed for defendants, and plaintiff brings error. Affirmed.

Lawrence C. Fyfe for appellant. C. B. Potter (Potter & Potter, of counsel) for appellees.

MORSE, J. In the winter of 1888 and 1889 there was talk among the people of the village of St. Joseph about building a large hotel under the auspices of an incorporated hotel company. This agitation in regard to the building of an hotel was occasioned by the visit of John O. Plank to the village, who represented to its citizens that he would cause the erection in the village of a large summer hotel, with a capacity of entertaining five hundred guests or more, said hotel to cost $150,000, in case the people of St. Joseph would subscribe $20,000, to be taken in stock in a corporation to be organized for the construction and operation of such an hotel. An informal meeting of citizens was held, and at such meeting it was thought best by those present to accept Mr. Plank's proposition, and a committee was appointed to solicit subscriptions. Neither of the defendants attended the meeting, and testify that they had never heard of Mr. Plank at the time they subscribed the following paper, which was presented to them by the committee, and signed, as they claim, with reluctance, and upon the representation that the hotel was to cost $150,000: "We the undersigned citizens of St. Joseph, promise to pay the trustees of the hotel to be built at St. Joseph the sum set opposite our names, to be taken as stock, $25 per share." This was signed by a large number of persons, and by the defendants as copartners, as follows: "Burkhard Bros., $200." Defendants also testified that they were told before signing that this paper was not binding. "It was merely to see what they could do. They said they

first

would be around with the binding list afterward." It seems that afterward the committee did go around with a more formal paper, and as fast as it was signed by those signing the first paper, their names were erased from the first subscription. There was evidence on the part of the plaintiff tending to show that there was no abandonment of this first list, and that the second paper was drawn up for the purpose merely of getting all the subscribers on one paper, as several subscription lists had been circulated in the first place. But there was testimony tending to show that this paper was informal, and not meant as the final binding subscription, which is also corroborated by the erasures on the first list of the names of those signing the more formal subscription paper. Unfortunately this last paper was not produced, nor was there any clear testimony as to its contents. When this second paper came around, the defendants absolutely refused to sign it, and declined to pay any thing toward the building of the hotel. Subsequently to this refusal a corporation was formed called "The Plank's Tavern Company," for the purpose of building an hotel in the said village, with a capital stock, stated in the articles of incorporation to be $250,000, and the number of shares to be ten thousand, and the shares to be $25 each. The stockholders in such corporation were five in number as follows: John Carter, of Detroit, four hundred and eighty shares; Norman Buckley, Elkhart, Ind., six hundred shares; John O. Plank, Detroit, eight shares; John Bell, Benton Harbor, eight shares; John Hyman, Jr., St. Joseph, twenty shares. The office of the corporation was located at Detroit, Mich., and the articles of association were acknowledged by the said stockholders between the 22d day of April and the 4th day of May, 1889. September 10, 1889, eight shares of the stock of this corporation were made out to the defendants, and soon thereafter tendered to them. They refused to receive the certificate. This suit was commenced in justice court. upon defendants' subscription, and judgment obtained by plaintiff. On appeal to the circuit court of Berrien county, the judge of that court directed a verdict for the defendants, giving his reasons at some length for so doing.

The hotel was built by this incorporated company, but its whole cost, including furniture and every thing else necessary to equip the hotel for business, did not exceed $110,000, if it reached that

figure. The directors of the company have mortgaged the hotel to John O. Plank, for $60,000. The theory of the plaintiff is that the hotel was built relying upon the promise of the defendants to pay their subscription, and it is argued that the case is ruled by Peninsular Railway Co. v. Duncan, 28 Mich. 130, and the late case of Association v. Walker, 83 Mich. 386; 47 N. W. Rep'r, 338. But we think there is a material difference between the case before us and either of the cases relied on by plaintiff's counsel. In the case against Duncan, he had signed a preliminary subscription paper, provided for and authorized by statute, as one of the original associates for the formation of a railroad company, and signed a subscription agreeing to take a certain number of shares of the capital stock of the proposed company, and to pay therefor "at such times and in such sums as the same shall be assessed, demanded and required to be paid by the directors of said company." In the majority opinion it is said: "In the present case it does not become necessary to discuss the question whether a party who expressly revokes his subscription before the corporation is formed can be compelled to pay it afterward." Page 138. In the same opinion, at page 134, it is also said that the agreement must be mutual, and that there would be no difficulty at common law in enforcing the "promises contained in an agreement of this general nature against the several promisors, where the object to be accomplished was lawful, where a beneficial purpose was in view, and where it was possible to make to the several promisors the return which their subscription called for. In such case the promises are mutual; acts are done and money expended in reliance upon the subscriptions; and the moment the promises are accepted by the organization and action of the corporation, to which they are provisionally made, there can generally be no difficulty in their enforcement, if the corporation then has it in its power to give the stock subscribed for and offers to do so."

In the present case the defendants expressly revoked their subscription before the corporation was formed, and nothing could have been done in reliance upon it; nor was there enough of the subscribers to form a contract in and of itself. It was necessary for the plaintiff, in order to make a case upon it, to supplement and add to its terms by parol evidence. It was not