¶1(concurring): — There were several pleas of defense set up by defendants. Among them was thr.t of failure on the part of the railway company to establish and maintain a division and division headquarters at Milan. While the trial court did mot make special findings yet evidently its action on the declarations of law shows that it found the fact to be that the subscription contract in this respect had not been complied with by the company. An examination of the record shows that there was evidence in the cause sufficient upon which to base such finding. It is true that two witnesses for plaintiffs state that such division was established. But their whole testimony, shows that this was merely their opinion. Mere words of affirmation or denial used by a witness in giving testimony will mot be allowed to control the evident meaning of his whole testimony, *294or the body of the evidence in the cause on that subject. State v. Logan, 84 Mo. App. 584.
¶2But the plaintiffs take the position that the condition to the contract of subscription is that the conveyance of the property given to the company should be made upon condition that it perpetually maintain division headquarters at Milan. That this condition was complied with when such conveyance was made containing such condition regardless of the fact that the company may have afterwards failed to comply with the condition, and that defendants are not excused from payment of their subscription to plaintiffs on account of such failure of the railway company. And in this connection plaintiffs contend that the only condition in the contract, the failure to perform which would excuse defendants, is that one requiring the railway company to establish, a division of said railroad at Milan; that if the company merely established a division at that place it complied with the condition though it was not used or maintained as a division.
¶3We are not impressed with this position. The whole contract of subscription as well as its object and purpose, shows that the consideration for the subscription was that the railway company would establish and maintain division headquarters with the buildings and equipments necessary for such purpose. If the company failed to do this it constitutes a valid defense to the payment of subscriptions. Brimhall v. Van Campen, 8 Minn. 13; Sickles v. Anderson, 63 Mich. 421; Ft. Wayne E. L. Co. v. Miller, 131 Ind. 499. The last clause of the contract should be construed with the whole paper. Its meaning then becomes plain. Plaintiffs should not be permitted to select this one clause, separate it from the other parts and demand that it control the whole. Davis & Rankin v. Hendrix, 59 Mo. App. 444. The case of *295Shaffner v. Jeffries, 18 Mo. 512, does not conflict with this statement of the law. If, in that case, there had been no telegraph line strung, or no “office opened in Union,” and the subscriber yet had been held liable for unpaid subscription, it would have been applicable to the facts in this case.
¶4In obtaining ground for the use of the railway company upon which to establish division headquarters, the plaintiffs, as trustees, procured conveyances from Smick & Bailey to themselves which they afterwards conveyed to the railway company, and from John P. Butler to the railway company. The answer charges that these deeds to the railway company were not such as were contemplated by the contract of subscription and that there was collusion between the railway company, these plaintiffs and Butler to keep these deeds off of the record for several months with the design and purpose of keeping their contents from the knowledge of the defendants and other subscribers until they should pay their subscriptions. There is no evidence in the record to sustain this charge. It is true that the two deeds to the railway company were not recorded by it for several months after their date and delivery to the company. But so far as the record shows that was a mere happening. Unless connected with some tangible evidence it is a circumstance of no consequence. There is not a particle of evidence that there was any design or collusion practiced by either of the parties charged. Indeed, we fail to find any evidence to show that these trustees or Butler even knew that the deeds had not been promptly recorded.
¶5The failure to sustain the answer in this respect does not, however, in the least affect the force of the defense, already discussed, that the railway company has not, under the finding of the trial court, complied, with the contract which formed the basis of defendant’s subscription. The judgment should be affirmed as ordered.