Basford v. Brown , 22 Me. 9 ( 1842 )

The opinion of the Court was drawn up by

Tenney J.

—■ This action cannot be maintained. The original subscription of the plaintiff, defendant, and others, was undoubtedly for carrying into execution an object desirable to them and lawful in itself. But if it be a promise to pay, it is one made to no particular person and founded upon no valuable consideration. It contains no authority in any one to act for the subscribers in furtherance of their common design. The report of the case shows, that the plaintiff and two others made contracts with the master and paid him money and also paid other bills for expenses incurred in carrying on the school. But no agency is found to have been conferred upon him, or any authority given to make contracts. The defendant did sometimes attend the school, but it does not appear, that he had knowledge, that the plaintiff had assumed any liabilities, if in fact any were assumed'by him, in behalf of the subscribers ; and such knowledge cannot be inferred from any thing in the case before us.

The authorities referred to by the plaintiff’s counsel, as analagous to the one at bar, were those wherein the defendants had conferred on the plaintiffs an agency, or had distinctly recognized in them a power to act, in carrying into effect the purposes contemplated in the subscription papers. This case exhibits no such facts.

Assuming that the subscribers, including the defendant, had authorized the plaintiff and two others to make all the engagements, necessary to carry into execution the object expressed in the paper, there is no evidence, that the plaintiff has made advances for the defendant. He has paid a sum much less than that already received on the subscription paper, and there is nothing on which we can found the presumption, that the money paid by him did not all arise from those receipts. He and Harris have each paid an equal sum, and together more than that paid by the subscribers; but how can we say that the plaintiff and not Harris has advanced the sum, which has not been obtained on the paper ? Harris has the same right of action as the plaintiff’ has, and we do not see how a judgment in this action against the defendant can bar one in the name of Harris.

The nonsuit confirmed.