Kierstead v. Bennett , 93 Me. 328 ( 1899 )

Savage, J.

Assumpsit upon a promissory note of the following tenor:—

“Danforth, Maine, August 26, 1895.

$350.

Thirty days after date, I, in my official capacity, as Treasurer of the Danforth Trotting Park Association, promise to pay Oliver Kierstead, or order, three hundred and fifty dollars, with interest, value received.

Horace A. Bennett, Treas.”

The defendant pleaded the general issue. The plaintiff claims that this note is to be construed as the personal, individual obligation of the defendant, Horace A. Bennett, who signed it. The defendant, on the other hand, contends that the note, on its face, is the note of the Danforth Trotting Park Association, and that he is not personally liable. An examination of the record will, we think, show that, so far as the proper decision of this case is concerned, it is immaterial which contention is correct.

The case shows that on July 12, 1895, the defendant and others organized a voluntary association. They chose officers. They voted that the name of the association be the “Danforth Trotting Park Association.” They adopted by-laws and fixed the amount of the capital stock. On the following day, July 13, 1895, a part of the associates who had organized July 12, including the defendant, and also including others who had not previously been associates, signed articles of agreement, with the intent to organize a corporation under the statute. Due notice was given of a meeting for organization, to be held July 27, 1895. That meeting was not held. Subsequently, in September, 1895, and apparently without further notice, the associates who had signed the articles of agreement, went through the form of organizing a corporation under the name of the “Danforth Trotting Park Association.” The proceedings were manifestly irregular, and we express no opinion as to their validity. It is evident that on the date of this note, August 26, 1895, there was no corporation by the name of the “Danforth Trotting Park Association.” Nor had those who had associated themselves for the purpose of organizing a corporation adopted any name at that time. But there was a voluntary association of that name when this note w.as given, and the defendant was one of the associates, as well as treasurer of the association. There was no other Danforth Trotting Park Association than the one of which the defendant was a member. That was the one in existence August 26,1895, and we must assume that the defendant contracted with reference to it, rather than with reference to something which did not exist.

Now the defendant claims that the note sued must be held to be the note of the Danforth Trotting Park Association, and that when the defendant ¿promised in his “official capacity,” he promised for and in - behalf of the association. Assume it to be so. Then he promised for and behalf of all the associates, including himself. That being so, all the members, himself included, are liable upon the promise which he made. All are co-promisors. He is sued; the others are not. But the non-joinder of a co-promisor is available only by plea in abatement.

Hence it follows that whichever view may be taken of the note, the defendant is liable.

Defendant defaulted.