Smith v. Poor , 37 Me. 462 ( 1854 )

Cutting, J.

— Assuming as proved all the plaintiff contends for — that the Portland Gas Light Company was legally organized — that the plaintiff drew the order in favor of the defendant — --that it was charged to the drawer and credited to the drawee on the books of the company, in payment of his subscription for two shares; still the plaintiff fails to sustain his declaration, on either of the money counts, for various reasons. He proves no privity of contract, either expressed or implied; there is no evidence, that the defendant ever knew or consented to any of the proceedings, or that he has since availed himself of the credit by any use or disposition of the shares. It does not appear, that the defendant was under any legal obligation to pay for his stock, or that any assessment could be collected, otherwise, than, provided by statute for selling at public auction the shares of delinquent subscribers, which course, perhaps, under the circumstances, the defendant 'might have preferred to have been taken, and certainly he had an illustrious example, as disclosed, in the case of New Bedford and Bridgewater Turnpike Corporation v. John Q. Adams, 8 Mass. 138.

Another objection to the plaintiff’s recovery is, the legal presumption, that when the order was drawn, it was given for an adequate consideration, paid or secured at the time, to remove which the burthen is on him. Townsend, Ex’r, v. Derby, 3 Met. 363.

Exceptions overruled and the nonsuit confirmed.

Shepley, O. J., and Rice and Hathaway, J. J., concurred.