South Bay Meadow Dam Co. v. Gray , 30 Me. 547 ( 1849 )

Shepley, C. J.

— This action has be.en commenced to recover the amount of two assessments made upon one share of the capital stock of a company.

The case is presented upon an agreed statement. It does not appear, that there are any pleadings in the case. If there have been, the parties may agree to present matters pleadable only in abatement, as objections to the plaintiff’s right to recover. The rule is not therefore applicable, that the existence of the corporation is admitted by a plea to the merits.

Several objections to a recovery have been made. They are in substance : —

1. That there is no satisfactory proof of the existence of the corporation.

A charter was granted by an act of the Legislature, on July 31, 1846, to certain persons named. Any two of them were authorized to call the first meeting in the manner prescribed.

The certificate made by two of them, upon the back of a paper containing a notice, does not show that notice was given according to the provisions of the act. It appears, however, that there was in fact a meeting of members at the time and place designated in the notice, and that they chose a moderator and clerk, and voted to accept the act of incorporation. A paper for subscriptions to the stock appears to have been drawn, and the defendant subscribed it for one share. At an adjourned meeting he was chosen one of a committee of five to report by-laws for the corporation, and appears to have acted. He, with others representing themselves to be members of the corporation, subscribed four petitions or memorials addressed “ to the directors of the South Bay Meadow Dam Company.”

It is not necessary that the records of a corporation should exhibit a legal organization and acceptance of the act of incorporation. The existence of the corporation may be inferred from the exercise of its corporate powers. Trott v. Warren, 2 Fairf. 227; Penobscot Boom Corporation v. Lamson, 16 Maine, 224; State v. Carr, 5 N. H. 367; Ameriscoggin Bridge v. Bragg, 11 N. H. 102; Middlesex Husbandmen v. Davis, 3 Metc. 133.

It has been decided, that one, who makes a promissory note or other engagement to a corporation, thereby admits its corporate existence. Con. Society v. Perry, 6 N. H. 164; Williams v. Bank of Michigan, 7 Wend. 540; All Saints Church v. Lovett, 1 Hall, 191; Den v. Van Hauten, 5 Halst. 270; John v. Farmer’s and Mechanic’s Bank of Indiana, 2 Blackf. 367.

The defendant in this case, by making a promise in writing to the corporation to pay for one share, by addressing to its directors four petitions, and by acting as one of committee to report by-laws for the corporation, has admitted its existence.

2. The second objection is, that the clerk of the corporation was not sworn, and that he did not file in the office of the register of deeds a certificate of his appointment required by statute, c. 76, § 3. Neither that statute, nor the act of incorporation requires, that the clerk should be sworn. His omission to file the certificate required, cannot affect the existence of the corporation, or its right to maintain this suit.

3. That there were no officers of the corporation except directors, when the assessments were made.

The statutes before noticed do not prescribe, what officers shall be chosen by the corporation. It is provided by statute, c. 76, $ 1, that corporations shall have capacity “ to elect in such manner, as they shall determine to be proper, a clerk and all other necessary officers.” By the sixth article of the by-laws, the directors are authorized to appoint a secretary and treasurer, and to elect one of their number to act as president. The corporation having power to prescribe the manner, in which its officers shall be elected, may determine, that they shall be elected or appointed by its directors. At their meeting, holden on March 30, 1847, the directors made choice of a clerk and secretary, who are in their records stated to have been duly sworn. The corporation had also chosen a clerk, at its meeting holden on March 17, 1847. If by a correct construction of the by-laws, the directors were only authorized to choose a secretary for their own board, the clerk chosen by the Corporation would continue in office, until another was appointed, there being no provision in the statutes or by-laws to determine how long he should continue in office. The Queen v. Corporation of Durham, 10 Mod. 146; People v. Runkel, 9 Johns. 147; McCall v. Byram, 6 Conn. 428. The directors, at a meeting holden on March 17, 1848, chose a secretary of the company and a clerk of the directors, who are stated to have been duly sworn. The record of the proceedings of the directors in making the assessments, was made by their clerk, and the directors by the by-laws were authorized to make assessments.

4. That the amount of the assessments exceeded the amount of personal property, which the corporation was authorized to hold. It was authorized to hold real estate to an amount not exceeding fifty thousand dollars. It could not have been expected to obtain that amount of real estate without collecting from its members the means to acquire it. The act was not intended to prevent the assessment and collection of an amount exceeding three thousand dollars to be expended, but to prevent the corporation from retaining as capital more than that amount.

5. That the corporation has not authorized or ratified the subscription made to its stock.

At the first meeting, votes were passed, that twenty-five dollars be the amount of a share, and “ that the moderator present the subscription paper to the owners of flats above Davis’s narrows.” The paper subscribed by the defendant bears date on the same day. There is no proof that any other subscription has existed. The subscription appears, therefore, to have been authorized by the corporation.

6. That the additional act, approved on August 10, 1848, increased the liability of the stockholders, and thereby relieved the defendant /rom the performance of his contract.

The act of incorporation was accepted, and the subscription was made, with a provision in the act, that it should be subject to all the duties and liabilities imposed upon corporations by the seventy-sixth chapter of the Revised Statutes. The twenty-third section of that chapter provides, that all acts of incorporation thereafter granted, shall at all times be liable to be amended, altered or repealed at the pleasure of the Legislature. The defendant cannot therefore correctly allege, that his liability(has been increased without his consent. He consented to such action of the Legislature by becoming a member of the corporation.

It is well settled, that an action can be maintained on an express promise to pay for a share or to pay an assessment upon it, although the share may be liable to be sold, to obtain s'uch payment. Turnpike Corporation v. Adams, 8 Mass. 138; Turnpike Co. v. Thorp, 13 Conn. 173; Glover v. Tuck, 24 Wend. 153; Herkimer Co. v. Small, 21 ib. 273; 2 Hill, 127; Selma and Tennessee Railroad v. Tipton, 5 Ala. 787.

According to the agreement of the parties, the defendant is to be defaulted.