Page:North Dakota Reports (vol. 2).pdf/335

 ject only to the condition that the railway should not be constructed according to the terms of the contract.” This doctrine is by no means recognized universally, and it is not too much to say that the weight of reason and authority is against it. Baptist Church v. Cornell, 117 N. Y. 601, 23 N. E. Rep. 177; Presbyterian Church v. Cooper, 112 N. Y. 517, 20 N. E. Rep. 352; Methodist Church v. Kendall, 121 Mass. 528; University v. Livingston, 57 Iowa 307, 10 N. W. Rep. 738. But this question we are not called upon here to decide, nor is it at all material, for, assuming the decision to be sound, it makes nothing against our position, for here there was a general agreement on the part of all to pay $5,000 for the creamery. Each was bound for the full amount. The plaintiffs agreed to build the creamery for $5,000, and the engagement of the subscribers is to pay, not the amount set opposite their several names, but the sum of $5,000 generally. “We, the subscribers hereto, parties of the second part, agree to pay the above amount for said creamery when completed,” etc. The consideration for this joint promise to pay $5,000 was the erection of this creamery. The consideration therefor was not executed, but executory. There did not arise upon the signing of the contract by the appellant an absolute obligation to pay $5,000 or any portion of it, the same as though he had actually received the consideration for the promise—the theory upon which subscribers are held liable in the class of cases to which Buchel v. Lott belongs—but he became bound to stand by his agreement, or, in default thereof, to pay such damages as a breach of his contract would cause. The petition for rehearing is denied. All concur.

Bartholomew, J., having been of counsel, did not sit on the hearing of the above case, nor take any part in the decision; Judge Templeton, of the first judicial district sitting by request.