Appeal by defendant from a judgment in the Superior Court of the City and County of San Francisco, and from an order denying a motion for a new trial. Hunt, J.

Action upon contract in writing. The following is a statement of the facts in this case: On or about the first day of April, 1876, the plaintiff being a railroad corporation duly organized, and as such, authorized to build and operate railroads in this State, proposed and offered to the property owners along a contemplated line, viz: from the Oakland Wharf (of the Central Pacific Railroad Co.), to the State University at Berkeley, or as near thereto as practicable, to build and operate a railroad on said line, provided they (the property owners) should procure at their own expense the right of way, and pay plaintiff in addition thereto the sum of twenty thousand dollars; thereupon a number of the property owners (the defendant included) constituted themselves into a committee for the purpose of soliciting and receiving subscriptions in that behalf, at the instance, and under the authority of the plaintiff. A contract of subscription was prepared by the plaintiff, and delivered to one J. L. Barker, a member of said committee, as agent for the plaintiff, to secure subscriptions thereto.

The contract is as follows:

“ Subscriptions for a Steam Railroad connecting San Francisco and Berkeley, via Oakland:

“ Whereas, the undersigned desire to procure the construction and operation of a steam railroad from the Oakland wharf of .the Central Pacific Railroad Company to the State University at Berkeley, or as near thereto as practicable, on the line recently surveyed by S. S. Montague, Chief Engineer of said Company; and whereas, the Western Development Company propose to construct and operate, or cause to be operated, a steam railroad on said line, provided the undersigned will at their own expense procure and convey to it a right of way of the width of one hundred feet, and land sufficient for a suitable and convenient terminus at Berkeley; also twenty acres of land in addition to said right of way and terminal grounds; and provided further, that the undersigned will pay, or cause to be paid, to said company the sum of twenty thousand dollars, in gold coin, upon the completion of said road, said road to be commenced upon the delivery to said company of the title papers to said right of way, terminal grounds, twenty acres of land, and the deposit of said twenty thousand dollars in the Union National Gold Bank of Oakland, to be paid by said bank to said company upon the completion of said road, which is to be constructed with all reasonable dispatch.

“Now, therefore, in consideration of the premises, we, the undersigned, hereby agree to contribute and pay for carrying out the foregoing enterprise, on demand, the sums of money set opposite our names, in United States gold coin: J. S. Emery, one thousand dollars;” and other persons whose names are here omitted.

The plaintiff built the road, but the defendant refused to pay his subscription.

The Court below gave judgment for the plaintiff. Defendant, after moving for a new trial, appealed from both the judgment and order denying a new trial