Carr v. Bartlett

72 Me. 120 | Me. | 1881

Peters, J.

The defendant, with others, signed an agreement of association containing the following clauses : "Wo, the undersigned, residents of the town of Montville and vicinity, hereby agree to enter into association for the purpose of erecting and operating a cheese factory. . . . and we severally and individually bind ourselves, by these presents, on or before; the first day of May, 1874, to pay to our'regularly appointed building committee the several sums set opposite our names for tho purpose of building and furnishing said factory. . . . The above not to be binding unless the sum of §2000 is subscribed.”

This undertaking, while it remained inchoate and incomplete, was not binding upon the defendant. It was without consideration. It was not a sufficient consideration that others joined in the same promise, relying upon her promise. Foxcroft Academy v. Favor, 4 Maine, 382; Cottage St. E. Church v. Kendall, 121 Mass. 528. The latter caséis the subject of an instructive note, citing and discussing a mass of authorities, in the Amer. Law Reg. (Phila.) Sept. No. 1877.

At this stage of the undertaking the defendant could have withdrawn from it, or she could continue a party until the same became a completed agreement and binding upon her. She took the latter course. The subscription became completed. Her associates paid in their subscriptions, made purchases and entered into contracts necessary for the consummation of the common enterprise. She is presumed to have assented to all that was done. Those facts furnished a sufficient consideration for the liability which by her subscription she assumed. The authorities are agreed upon this point, as the cases cited and those to be cited cleai’ly show.

It is denied that the plaintiffs are competent parties to sue for the subscription. They are the regularly appointed building-committee of the subscribers. They are themselves subscribers. In their name for the benefit of the associates they contracted for the erection of the factory. Under the agreement, they are the payees or promisees by description, in whose names the subscriptions are collectible for the benefit of all concerned. They are the association by representation. Therefore the objection is avoided, that sometimes is presented in this class of contracts, that the mutual promises of subscribers do not afford a consideration for a contract with a third person, for a want of privity between the subscribers and such person. Thompson v. Page, 1 Metc. 565 ; Ives v. Sterling, 6 Metc. 310; Fisher v. Ellis, 3 Pick. 323; Watkins v. Eames, 9 Cush. 537; Athol Music Hall v. Carey, 116 Mass. 471; Curry v. Rogers, 21 N. H. 247. There can be no valid objection to a suit in the name of the plaintiffs for the benefit of themselves and associates.

It is further objected, that the property and business became absorbed into a corporation subsequently formed. Bat this was after the defendant’s liability became fixed. It seems that all the subscribers were incorporated into a company with a corporate name, without any change in the purposes of the association or adding any liabilities to those before assumed. It gave them little more than "a local habitation and a name.” Whether the defendant became thereby legally a member of the incorporated body or not, it is not a reason why her subscription cannot be enforced by the committee to whom the payment by the agreement was to be made. No right can be taken from her. For any loss or injury caused by others she can commence an action or resort to a remedy in equity. Thompson v. Page, supra; Fisher v. Ellis, supra; Mirick v. French, 2 Gray, 420 ; Machias Hotel Co. v. Coyle, 35 Maine, 405.

The corporation voted to release the defendant from the payment of her subscription. The vote was without any consideration, and before the vote was acted upon it was reconsidered and annulled. That affords no defence to the action.

Defendant defaulted.

AppxjETON, C. J., WaltoN, DaNeorth, Virgin and Ltbbey, JJ., concurred.