Hope Iron Works v. Holden , 58 Me. 146 ( 1870 )

Danforth, J.

The jury have decided that there was a failure of consideration for the notes in suit. Upon this point we see no reason to disturb the verdict. The defendants supposed they were purchasing shares in the capital stock of an incorporated company. Mantón was selling shares in a company to be incorporated. Suppose the contract had been as Mantón understood it, and suppose shares in a company in process of organization to be a sufficient consideratiómfáFa promissory note, still the defendants never received such shares. At the date of the original notes, even the charter had not beéh'granted, and after it was granted no organization was ever completed or even begun. The defendants never received the conveyance of any shares, nor were they put in any position to enjoy the rights of a preliminary subscriber. They, as a consideration for their notes, obtained no shares in an incorporated company, nor any rights in one not incorporated. The original agreement with Mantón was not consummated by him, or-by any one under him.

It is, however, said that the receipt of Jan. 14,1868, is, of itself, á sufficient consideration for the notes. But this is not a contract for the future sale of shares. It is rather a recognition of one already made. The fair construction of the paper is, that the shares themselves were the consideration of the notes, and not an agreement to sell or convey in the future. This paper does not, in any degree, change the testimony or modify its effect as to the original agreement under which the notes were given, nor does it furnish any new consideration for them.

It may be conceded that an agreement or promise to do anything in the future is a sufficient consideration for a promissory note. But, as already seen, this is not such an agreement or promise. It looks to a past transaction and not to a future, except as to the issuing of the certificate. It contemplates the stock as already in existence and sold, the certificate, only, to be prepared.

But perhaps a more conclusive answer to this point is, that the jury have found that the defendants never accepted the receipt as a substitute for the stock, or made any promise in the notes, or otherwise, upon the strength of it. And if the testimony does not place this beyond all doubt, it tends, so strongly in that direction, that we cannot say the verdict was wrong.

It- is further said that the paper of March 2,1868, called a “ provisional certificate,” is a sufficient consideration for the promise of the defendants. Whether this paper is of any value, may perhaps be doubted. There is nothing in the case to show’the authority of Mr. Field to issue such a certificate. It is quite evident that, if issued with the proper authority, it does not comply, with the requirements of law for the assignment of the letters-patent, and would give the defendants no interest whatever in such patent.

But there is the same difficulty with this paper as with the other. The jury have said, and we think were justified in saying, that the defendants never accepted it as in any respect fulfilling the original agreement, or as claiming any right or interest under it. There is nothing in the case showing that the renewals of the original note were other than simple renewals under the original agreement, founded upon the original consideration, and not induced by any subsequent transactions. The same may be said of the subsequent promises to pay. They appear to have been made with the expectation of, and relying upon, the fulfillment of the original agreement, and not because of the receipt or “ provisional certificate.” They were, in fact, accompanied by a repudiation of these papers, a denial that they did fulfill the Original undertaking, and constantly claiming a certificate of the stock.

The suggestion that the jury were unable to agree upon one point submitted to them, as vital to the verdict rendered, might, perhaps, be entitled to serious consideration, were that question properly before us. But the motion for a new trial is founded not upon any misconduct of the jury, or that they were unmindful of their duty in neglecting to settle one of the issues presented to them, but upon the ground that the verdict rendered is against the evidence. The verdict as it stands necessarily disposes of that point. It is a denial that the plaintiffs are holders for a valuable consideration and without notice. And the question presented by the motion is whether that denial is unsupported by the testimony. We think it is not .only not unsupported, but that it is fully justified, and that if the jury had understood the fourth question as presented to them, they would have had no difficulty in coming to a conclusion. It may, perhaps, be somewhat doubtful from the testimony, whether the plaintiffs are holders for value. But if they are, there can scarcely be a doubt as to their having had notice of the origin’ and subsequent history of the notes. Mantón testifies that he was the agent and treasurer of the plaintiffs; that they “acted as bankers for the Machinist Tool Company, advancing the money and collecting the assessments.” It further appears, from Manton’s testimony, that the original note was made payable to plaintiffs, dis-. counted upon their indorsement, and the money raised on the discount was used, not for their own benefit, but for that of the Machinist Tool Company. This, with other testimony showing the intimate connection of Mantón and the two companies, and the knowledge of the plaintiffs of these notes, and the transaction out of which they grew, would seem to remove all difficulty as to notice.

The whole charge of the presiding judge is excepted to, but no particular ruling or instruction is pointed out as being erroneous, nor have we discovered anything in it objectionable.

Motion and exceptions overruled.

Appleton, C. J.; Kent, Walton, Barrows, and Tapley, JJ., concurred.