First National Bank v. Almy

Gray, C. J. The defendants having associated themselves together by an agreement in writing, setting forth their intention to constitute a corporation, the name, purpose and location thereof, the amount of its capital stock, and the number and par value of its shares ; the officers, chosen at a meeting duly called for the purpose, having submitted to the commissioner of corporations a certificate setting forth a true copy of that agreement and the date of that meeting, together with the records of the corporation ; and that certificate having been approved by the commissioner and filed in the office of the Secretary of the Common [478] wealth, and a certificate issued by him of the organization and establishment of the corporation; the defendants became a corporation, and the certificate of the Secretary of the Commonwealth had the force and effect of a special charter from the Legislature, and was conclusive evidence of the organization and establishment of the corporation. St. 1870, <?. 224, §§ 1, 6-11, 30. Section 32 of that statute, prohibiting the corporation from transacting business until the whole amount of the capital stock had been paid in in cash and a certificate of that fact filed in the office of the Secretary of the Commonwealth, would not prevent an action from being maintained and judgment rendered against the corporation, upon a debt contracted before the filing of such a certificate ; and the associates and members of the corporation can be sued upon such a debt only in equity, and after the recovery of judgment against the corporation, as provided in §§ 39-47. Merrick v. Reynolds Engine Governor Co. 101 Mass. 381. Hawes v. Anglo-Saxon Petroleum, Co. Ib. 385, and 111 Mass. 200. Priest v. Essex Hat Manuf. Co. 115 Mass. 380. Pollard v. Bailey, 20 Wall. 520. Even if the organization of the corporation had been defective, there would have been great difficulty in holding the associates to be subject to the liability of copartners, which they never intended to assume. Fay v. Noble, 7 Cush. 188. Trowbridge v. Scudder, 11 Cush. 83. The case wholly differs from that of a limited partnership under the Gen. Sts. c. 55, where the associates intend to form a partnership of some kind, and the statute expressly provides that, if the requisite certificate is not filed and published, all shall be liable as general partners for the debts of the partnership. Pierce v. Bryant, 5 Allen, 91. Lancaster v. Choate, Ib, 530. Haggerty v. Foster, 103 Mass. 17. Judgment for the defendants.