Buckfield Branch Railroad v. Irish , 39 Me. 44 ( 1854 )

Cutting, J.

— The only question, for the consideration of the Court, appears, from, the arguments submitted, to be upon the construction of the original contract entered into by the respective parties, which is in these words: — “ The undersigned hereby agree to take and fill the number of shares set against their names respectively, in the capital stock of the Buckfield Railroad Corporation,” &c., to which the verdict finds, that tbe defendant was a subscriber to one share.

In the case of Bangor Bridge Co. v. McMahon, 10 Maine, 478, this Court have decided, that the term “to fill,” in a similar contract, is equivalent to an express promise to pay assessments legally made upon the share represented. And we are not aware of any decision in this State, which overrules that opinion, and no sufficient argument has been adduced, which inclines us so to do. More especially since that term had received a legal construction, and in contemplation of law, must have been known to the defendant, when he became one of the subscribers. Consequently, according to the agreement of the parties, a default must be entered, and the defendant is to be heard in damages before either member of the Court.

Shepley, C. J., and Howaud, Rice and Hathaway, J. J., concurred.