Hudson v. Carman , 41 Me. 84 ( 1856 )

Tenney, C. J.

The plaintiff introduced the charter of “The Boston and Portland Telegraph Company,” approved Aug 3, 1850, and advertisements in the Portland Argus and Advertiser, published in each three weeks successively, purporting to have been signed by Charles -H. Hudson, one of the corporators, notifying a meeting of the persons named in the Act, to be held in Portland at a certain place on Nov. 5, 1850, to act upon the following matters: — 1st, To choose a chairman and secretary of said meeting. 2d, To see if the persons named in said Act, will accept the same. 3d, To make choice of such officers, as may be authorized by law, for such corporations, &c.

The plaintiff then offered a certain boók, and called Stephen Berry, who testified, that he was the acting clerk of the company and, as such, had the custody of the book offered and exhibited; that he had knowledge that the book was the one in which the records of the company are kept; that he received by mail the written appointment of clerk, pro tern., signed by the president, which was read in the case. After this, he received the book of records from C. H. Hudson, and has since that time made entries therein, for the records of that corporation, as clerk of the same, and signed the entries as such; and has kept the book in the company’s office, No. 58, Exchange Street.

After the foregoing evidence was adduced, the plaintiff offered to introduce the book, for the purpose of showing, from the records, the first meeting and organization of the company, and that the defendant was a stockholder therein. The evidence was excluded, on the ground that the existence and organization of the corporation, must first be proved by evidence aliunde, before the books of the corporation could be introduced in evidence; and that the records offered of the corporation itself, upon the proof offered, were not admissible to prove the' fact of its own organization, in an action against a person alleged to be a stockholder.

After a charter has been obtained by individuals from the Legislature, the acceptance thereof, from the nature of the case, must be preliminary to the process of organization. And it is not unusual at a meeting of the corporators, called and held according to the provisions of the charter, to commence their action by the choice of a chairman and secretary of the meeting; and upon that to take a vote upon the question, whether they will accept the charter or not. If the vote upon this question is in the affirmative, an organization takes place by the election of permanent officers, and other acts important to carry into effect the objects of the company, and a record thereof made.

. The acceptance of the charter, creating the company, like every other controverted fact, is to be proved by the best evidence in the power of the party, who relies upon it. The books of a corporation are the regular evidence of its doings.

If books have not been kept, or have been lost or destroyed, or are not accessible to the party upon whom the affirmative lies, doubtless an acceptance of the charter may be proved by implication, from its acts, if such acts are capable of proof. Coffin v. Collins, 17 Maine, 440. The books are admissible to prove the organization and existence of the corporation. Angel & Ames on Corporations, c. 18, § 12.

In an action like the present, to recover against an individual stockholder the full amount of a creditor’s execution and costs, obtained against the corporation, of which he may be a member, or a part of such execution and costs, it is necessary, if required, that the existence and organization of tbe corporation should be established. The judgment obtained apparently against the company, may not be conclusive of such existence and organization, in an action to which he is a stranger. But the highest species of proof of these facts is as proper and as necessary in such action as for other purposes, where the existence and organization are required.

The existence and organization of the corporation was not required in this case to be proved by other evidence, than the records of the company.

The book does not appear to have been kept by Berry with all the care, which it is desirable that such records should be made; and it appears that he did not take the oath of clerk, yet there is nothing which renders it doubtful that he was the acting clerk of the company; that the book contained its records made before he received it; that those records touching the acceptance of the charter and the organization were sufficient; and that after it came to his hands, he made and signed the entries as records. We think the book should have been received as evidence on the question of organization of the company. 6 East, 868.

Exceptions sustained. — New trial granted.

Rice, Hathaway, Cutting and Goodenow, J. J., concurred.