McKenney v. Bowie

Stbout, J. The defendants claim that the note in suit was not the promise of the defendants, but of the Durham Agricultural Society, which, they say, was a corporation organized in 1886 under R. S., c. 55, §§ 1, 2 and 3. Those sections provide that seven or more persons may apply in writing to a justice of the peace in the county, who may issue his warrant directed to one of the applicants, requiring him to call a meeting, and after the service provided, that the applicants at such called meeting may organize a corporation. The evidence introduced fails to show an incorporation of the Durham Agricultural Society under the statute. There is no evidence that seven or any number of persons applied to a justice of the peace, nor that any justice ever issued a warrant. A book is introduced, headed “ Records of the Durham Agricultural Society,” which begins with the statement, — “ Agreeable to a legal warrant, a meeting was called May 8th, 1886,” and then proceeds to state the doings at the meeting, which are signed “ J. L. Wright, Sec.” The original warrant is not produced, and no copy of it or its service is contained in the book, and no statement that it was issued by a magistrate, or that any service was made, and no statement of the persons present at the meeting. Mr. Wright, it is true, expresses his opinion that it was a legal warrant, but it is possible the court might think differently if it was produced. He was not the authorized tribunal to determine its legality. Maddocks v. Stevens, 89 Maine, 336. It is said that a corporation of the same name was organized in 1892, by some, if not all of the original associates, perhaps as a result of doubt of the legality of the first attempt. But as this was after the date of the note in suit, it is of no importance here. To form a corporation under the statute, its terms must be complied with, and this must be proved when the existence of the corporation is in controversy. Utley v. Union Tool Co., 11 Gray, 139; Morawetz on Corporations, § 132. Nor does the case fall within the principle that, under some circumstances, a legal organization may be inferred from the grant of [401] a charter, and the performance of corporate acts, without production of a record of its first meeting, as in Sampson v. Bowdoinham Steam Mill Corp., 36 Maine, 79. When this note was given, there appears to have been an association of individuals, including the defendants, who were acting under the name of the Durham Agricultural Society, but no corporation. Five of the signers of the note were designated as “trustees,” and the sixth as “treasurer.” Not being incorporated, all of the associated persons were liable upon contracts lawfully made by the association. Those sued being associates, and not interposing the objection that others bound were not sued, cannot escape liability on the note, whether it is regarded as the note of the association or of the individual signers. The note was given July 7, 1891, payable in one year, and suit brought March 1, 1899. The statute of limitations is interposed. The note bears various indorsements, the last of which was in 1896. One other payment thereon of $21.90 made on November 4, 1897, is proved and admitted, and should be allowed. All payments were made by Charles H. Bliss, one of the signers. Nothing was ever paid by either of the other signers. As to him, therefore, the note is taken out of the statute of limitations. As to all the others it is barred. This result is reached, if we treat the note as that of the association, as claimed by the defendants. But we regard the. note as the personal obligation of the signers. It does not purport to be the promise of the association, but it is the promise of the “trustees and treasurer or their successors in office.” If there had been a corporation, and it was intended as its promise, the use of the term “successors in office” was without meaning. A corporation has no successor — its life is continuous, until .dissolved. In either case, no defense is disclosed, except the statute of limitations. Judgment for plaintiff against Charles IT. Bliss for amount of the note, less ‡21.90 paid November If., 1897, and not indorsed, and judgment for all other defendants.