Kennebec & Portland Rail Road v. Palmer

The opinion of the Court, Shepley, C. J., Tenney, Howard and Appleton, J. J.;, was drawn up by Shepley, C. J. The contract was signed by the defendant on July 16, 1845. The corporation was not organized under its charter until October 28, 1846. The charter and additional Acts of incorporation are referred to in the contract, which declares, “ the subscribers agree to associate together under the provisions of those Acts, and agree and promise to take the number of shares set against our names respectively in the Portland and Kennebec Rail Road Company.” 1. The first objection is, that there was not and is not any existing contract between these parties. The contract was undoubtedly intended to have been made between the parties, for it provides, that payment shall be made “as shall hereafter be required by a vote of said company, when the same shall be organized under said Act oí incorporation,” and the defendant was to receive his shares from it. 2. It is alleged to have been made without consideration. The agreement to associate together under the Act to accomplish the purposes designed, would seem to be a sufficient consideration. The consideration need not proceed from the party with whom the contract is made. The consideration of one promise is, that others will make like promises. If this be not regarded as sufficient, the testimony shows, that the company was subsequently organized; that it proceeded to accomplish the purpose for which the charter was granted ; that the defendant paid in part for the shares ; and, that he promised to pay the remainder. The prior proceedings and acts of the parties are in such cases, regarded as a legal basis for a subsequent promise, and [369] the partial execution of the purpose designed by the charter as forming a sufficient consideration for it. Farmington Academy v. Allen, 14 Mass. 172. Amherst Academy v. Cowls, 6 Pick. 427. The renewal of the promise was made to an existing corporation. Evans, for the plaintiffs. Allen and Morrell, for the defendant. 3. It is insisted, that the plaintiffs cannot recover, because the defendant contracted to take two shares of $200 each and not four shares of $100 each. The original charter provided, that the capital stock should be divided into shares of $200 each. An additional Act, approved on July 16, 1846, provided, that it should be divided into shares of $100 each. This was accepted by the corporation, of which the defendant was a member. Long after this, the defendant paid in part for the four shares assigned to him by virtue of his subscription. He must therefore be considered as having assented to that "change in the division of the stock, and to the assignment of four shares of $100 each instead of two shares of $200 each. The change required no greater sum to be paid; and it neither increased nor diminished his proportion of the capital. The other objections made to a maintenance of the action have been considered and decided in a case between the same plaintiffs and Edward Jarvis. Ante, page 360. Defendant defaulted.