Moore v. Chesley

17 N.H. 151 | Superior Court of New Hampshire | 1845

Gilchrist, J.

This action is brought to enforce a contract, made, as it is said, by the defendant, to pay twenty-five dollars towards the building of a meeting-house, in which he would, by the terms of the contract, be entitled to one share, or one fifty-fourth part, such being the number of shares subscribed by the thirty-four who became parties to the enterprise.

It becomes necessary to inquire, who were the parties to the contract ? "Were they or others entitled, upon a breach of it, to sue for consequential damages ? and what was the consideration upon which the promise of the defendant was founded ?

The contract is in writing, and is an agreement among those who signed it, to take a definite number of shares in the proposed building, and to pay, at the rate of twenty-five dollars a share, to a committee to be appointed, to defray the expenses of the undertaking. This defendant became a party to the contract by subscribing for one share. It is said, indeed, that by inserting the words, “ one pew,” between his name and the figure denoting the number of shares, he in some way limited or qualified the undertaking with which, but for those words, the writing would seem to have charged him, to take and pay for one share. But there is some difficulty attending such a supposition, because it is not apparent in what way those words qualify the meaning of the other words and figures ; whether they mean that he would take one pew in addition to the share, or whether he intended to make the taking of a share to depend upon the condition of its entitling him to a pew in the house, or upon the condition that it should cost no more than a pew should cost; and unless it can be pointed out how the -words, by their plain significance, vary or qualify the indubitable force of the contract as it would stand without them, it would be hardly reasonable to insist that they impaired its force and meaning at all. By writing his name and the figure in the column beneath the word, “No. shares,” it must be presumed that he intended to assume the liability obviously pointed out by the instrument. The additional words must be rejected as surplusage, unless they can be shown to have a meaning.

Rejecting these words then, the paper appears to be the evidence of a contract between the several parties subscribing it, that each should pay the sum set against his name. Each contracts and agrees with all the others, and upon breach of his undertaking, becomes liable in an, action at the suit of the others for damages. It was so held in George v. Harris, 4 N. H. Rep. 533.

But it is said, perhaps upon the authority of cases cited there, that although the agreement was made between all the subscribers together, yet any one or more of them, having advanced money for the purposes contemplated in the agreement, might sue a delinquent party for his just share. Such would, perhaps, be the case, but it does not appear by the evidence that the money had been so advanced. Bryant v. Goodnow, 5 Pick. 228; Cong. Soc. v. Ferry, 6 N. H. Rep. 160.

Neither can these parties maintain the action upon the ground that the defendant, in common with others, promised to pay the money to such as should be appointed the building committee; the cases in which others than the parties to the contract are authorized to sue, being those only in which the contract is made for the express benefit of such third parties. 1 Chit. Pl. 4, and notes, (10th Am. ed.)

Such are the parties entitled to sue uppn the contract. The consideration by which each is bound is the promise of the others to contribute to the common object. The case of George v. Harris sufficiently establishes this; and it is, moreover, illustrated by numerous cases, in which persons, uniting for a common object, not immoral or otherwise obnoxious, as, for instance, the release of a debtor from the several claims of those whp so imite for his relief, each has been held, in consideration of the undertaking of the others, to a substantial and bond fide .compliance with the terms of their mutual agreement. Cockshott v. Bennett, 2 T. R. 763.

But a different consideration is set up in the declaration, and it is a well settled rule that the consideration of a promise must be proved as laid in the declaration. Knox v. Martin, 8 N. H. Rep. 155. For these two causes fihe verdict must be set aside.

It would seem that Pike was, by the releases which were exchanged, qualified to testify in the case. He can gain nothing by what the plaintiffs may recover, nor can they be entitled, in the event of their failing in the action, to call upon him for indemnity, however the fact may have previously been.

Neither does the fact that a clerk kept a memorandum of the proceedings of the meetings which the subscribers held, render it necessary for them to prove those proceedings by that memorandum. It is in no legal sense a record, and would serve no other purpose than as something for the clerk to refer to in aid of his memory, or to supply its deficiencies. The witness could remember without such aid, and it was perfectly competent for the plaintiffs to prove the facts by that evidence.

New trial granted.