Gilmore v. Pope , 5 Mass. 491 ( 1809 )

Parsons, C. J.

All the facts necessary to maintain the action are agreed, provided any action lies on the subscription, and that such action could be sued by the present plaintiff. It has been settled in the case of The Worcester Turnpike Corporation vs. Willard ⁽¹⁾, that on a subscription for admitting associates, if, by the terms of it, the associates severally engaged to pay the assessments made on their shares, the corporation might maintain an action on such engagement to recover the amount of the assessments; and we are of opinion, that this corporation might maintain an action on this agreement, to recover of the defendant the assessments made on his two shares. But the action cannot be maintained in the name of a mere agent of the corporation, as in this transaction the plaintiff has alleged himself to be; there being no consideration, as between the agent and subscribers, to support an action of assumpsit.

* The Court then ordered the plaintiff to be called ; [ * 494 ] but the parties agreed, that the defendant would confess judgment for the amount of the assessments, and should have judgment against the plaintiff for his costs; and the entry was made pursuant to this agreement ^(a).

(1) Ante, p. 80.

(a) See Taunton & South Boston Turnpike vs. Whiting, 10 Mass. 327, and cases there cited in the notes.