Mirick v. French , 68 Mass. 420 ( 1854 )

Merrick, J.

The declaration alleges that the defendant owes the plaintiffs the sum of one hundred dollars, for money by them paid, laid out and expended at his request and to his use. And upon the statement of facts agreed to by the parties, we can see no reason to doubt their right to recover that sum of him. It is a well settled principle of law in this commonwealth, that when one subscribes with others a sum of money to cany on some common project, lawful in itself, and supposed to be beneficial to the projectors, and money is advanced upon the faith of such subscription, with his knowledge and without objection from him, an action for money paid, laid out and expended may be maintained to recover the amount of the subscription, or such part of it as is equal to his proportion of the expense incurred. It was so determined in this court many years since, and the principle has not been disturbed or brought into question by any subsequent decision. Farmington Academy v. Allen, 14 Mass. 172. Bryant v. Goodnow, 5 Pick. 228.

The defendant signed the subscription paper recited in the declaration. All the conditions contained in it were duly complied -with. The third condition was a provision in favor of Mr. Dewey; but there was no corresponding obligation on his part to take a lease of the premises. When, therefore, he voluntarily resigned all claim he might have as lessee of the buildings, the condition was discharged, and nothing further remained to be done under it. The defendant was notified, as he should have been, of the meeting at which the plaintiffs were chosen trustees. In execution of the common project, and relying in part upon his subscription, they proceeded to expend, and did expend, a sum exceeding the whole amount agreed to be contributed by all the subscribers. The defendant had knowledge of all this; and when called upon for payment of his proportion, or the amount which he had subscribed, made no other objection to a compliance with that request, than a present want of money with which to do it; and upon being informed of the relinquishment by Dewey of his rights as lessee, said that would not affect his subscription, but he should pay just as if the relinquishment had not taken place. It thus appears that he originally stipulated with others to contribute a certain sum of money in execution of a project supposed to be for the common advantage; that the money was expended by the plaintiffs upon the faith of his promise; and that he subsequently recognized his original engagement as a still subsisting obligation. Upon this statement of facts, he is clearly liable to the plaintiffs in the present action, and judgment must be rendered in their behalf for the amount of his subscription.

Judgment for the plaintiffs.