Belfast & Moosehead Lake Railway Co. v. Inhabitants of Unity , 62 Me. 148 ( 1871 )

Danforth, J.

This is an action to recover the assessments upon three hundred shares of the capital stock of the plaintiff company, of which it is alleged the defendants became owners by virtue of their original subscription therefor.

The first question raised is whether or not the defendants ever became the owners of such, or any number of shares. It is not claimed that they were in any other way than by virtue of a contract. Such contract, like any other, if it exist at all, must do so by reason of an assent of each party to every proposition of the other without any modification. “Wherever there is not an assent, express or implied, to the terms of the proposed contract by both parties, there is no mutuality and no contract. Smith on Contracts, (third edition), 171, note; Jenness v. Mt. Hope Iron Co., 53 Maine, 20.

The case finds that books for subscriptions were opened by persons duly authorized therefor, as prescribed by the charter. In these books were certain rules and regulations adopted by the directors, and proposed as terms of the contract by which subscribers were to become owners of the shares subscribed for. The defendants, by their selectmen, subscribed said books for three hundred shares, but in so doing, added other and different conditions than those recorded therein. Those in possession of the books were authorized to sell the shares only upon .the terms therein recorded. Before the contract could be completed, the company must in some legal manner assent to the additional propositions of .the defendants. This was never formally done. No action in regard to these propositions appears to have been taken by the company until June 29, 1868. At that time the directors voted to locate their road upon a route which did not lead through Unity. As one of the defendants’ propositions was that the road should be located through Unity, this was, on the part of the directors, a virtual, if not a direct refusal of their assent to the terms offered by the defendants. Whatever, then, might have been the condition of the parties in relation to the supposed contract up to this time, this rejection of it by the plaintiffs would seem to put an end to it, and no further action would be required on the part of the defendants, unless for the purpose of renewing the negotiations. But these negotiations never were renewed, and the parties not only had not met, but the proposal of the one had been rejected by the other. But the defendants were not satisfied with this state of things. On the fifteenth day of March, 1869, and before any further action by the plaintiffs, they rescinded their former • vote authorizing the subscription, thereby withdrawing their offer. This it was certainly competent for them to do at any time before the offer had been accepted, if not at any time before notice of acceptance had been communicated to them, as held in Jenness v. Mt. Hope Iron Co., before cited. But it is contended that this vote could be rescinded only by the same majority required to pass it. If there is any doubt upon this point, it would seem to be whether or not a minority even, larger than one-third of the voters, could not withdraw or rescind the former vote. The law required a two-thirds vote to authorize a subscription. No binding contract could be made between these parties for the sale of stock, except by the assent of the plaintiffs and “two-thirds of the voters of the town, present at a legal meeting.” Clearly, after the meeting of March 15, 1869, no such contract could be made. After that date, there was no assent of a majority, much less of two-thirds, of the voters; and before that time the testimony shows no contract, assented to by both parties. Essex Turnpike Corporation v. Collins, 8 Mass., 292, is a case like this in principle and decisive of it.

As, therefore, the contract upon which the action rests fails, it is unnecessary to examine the other points raised in the defence.

It is, however, claimed that the plaintiffs may recover under the provisions of the Special Laws of 1869, c. 206. But the only purport of that act is to afford a remedy where the “terms and conditions of the subscription have been substantially complied with.” It does not propose to make a contract for the parties where none had previously existed, nor would it have been competent for the legislature to have done so, if such had been the object. Plaintiffs nonsuit.

Appleton, C. J., Walton, Barrows and Yirgin, JJ., concurred. Dickerson, J., dissented.