20 N.H. 90 | Superior Court of New Hampshire | 1849
Lewis Pillsbury, one of the plaintiffs upon the record, having proposed to convey to a company to be formed for building mills, certain real estate at a price indicated in the writing, a number of others, including the defendant, agreed to take stock in the mills to an amount indicated by each in his subscription. The defendant agreed to take $400.
Now the meaning of this paper is very clear. One party proposes to sell the land, and each, in consideration of that proposal, and of the promise of the others, agrees to give a specified sum towards buying the land and constructing the proposed mills. The defendant promised to give $400 towards those objects, and this sum he is bound to pay, provided the conditions have been fulfilled.
There is evidence that they have been fulfilled. A conveyance of the land was made to the subscribers to the project, and the mills were built; and there is evidence
The case is, in many respects, like that of George v. Harris, 4 N. H. 533. Money has been advanced by the plaintiffs in the prosecution of the object in which the parties all united, and towards which the defendant promised to contribute a certain sum. It has been advanced upon the faith of that promise; and according to the doctrine of the case cited, he is liable to an action in behalf of the parties who have so advanced the money, for the sum which he promised to pay.
This is the plaintiffs’ case. Is there a defence to it ? The defendant introduced evidence that the subscribers to the project became parties to certain articles, having for their object to regulate their action as a company in relation to the property and to the enterprise generally; and evidence that the defendant refused to sign those articles, and that he refused to proceed farther with the project, and to assent to the conveyance of the land. Upon this evidence he makes two points. In the first place he moves for a nonsuit, upon the ground that the articles show that the land was bought and the mills built for a partnership, and that the defendant cannot be charged as a partner at the suit of the other members of the firm; and secondly, that if that technical objection fails, there is not evidence to show that he ever joined the partnership, and so he never participated in the benefits, either of the grant of the land or of the mills erected.
Upon the first point he insisted upon a nonsuit. The evidence upon which the nonsuit was moved came from the party himself who moved it. A nonsuit is not granted in such cases, for the plaintiff* is not obliged to yield to the evidence, and is entitled to have it weighed by the jury.
Nor is it a clear proposition that if, in addition to the mutual agreement of all the parties to contribute certain sums for the purchase of the land, and for making the proposed improvements upon it, and the consequent purchase and construction of the improvements under circumstances that would bind the individuals to contribute, according to the case made by the plaintiffs, they should, in the progress of the work, arrange that it should be enjoyed by them upon the principles of a copartnership, it would at all affect their several liabilities under the original mutual contract.
Their agreement to buy the land and build a mill is one thing; so much they all agree to do. The manner of using it when built is an entirely different matter, not necessarily, as it would seem, affecting the obligations of the parties to the unqualified undertaking to purchase and to build.
Whether the defendant agreed with his associates as to the manner in which their common property should be enjoyed, when acquired and put in a condition to yield an income, must be admitted to be wholly immaterial as it regards his original engagement to buy and pay for it. So it seems wholly immaterial whether or not they agreed to proceed as partners in making the improvements. No one could be made, against his own will, to enter that relation with the others; and his obligation to contribute could not be affected by the fact that his associates chose that form of association as the most convenient for effecting the common purpose of building the mill. To hold
The motion for a nonsuit was, for all these reasons, properly denied.
As to his second point, it has been seen that if, in addition to the original agreement to purchase and improve, some of the parties enter into an association for the purpose of regulating their common action in relation to the property and the enterprise, with a view to the convenient or effective prosecution of it, whether that association be in the nature of a partnership or otherwise, they may well do so without disturbing the rights and obligations of the parties to the original agreement. It is, therefore, immaterial whether the defendant associated himself with the others or not, in the particular manner in which they united, so far as respects his promise to pay $400 towards the common object.
The evidence that he dissented from becoming a member, if the verdict had been in conformity with it, was not pertinent to the real issue. The evidence of his dissent to the conveyance was submitted to the jury; but it failed, in the encounter with other evidence, to procure a verdict in conformity with it. There was evidence of an assent to the conveyance.
The directions of the court to the jury seem to have been sufficiently favorable to the defendant. They charge him only upon the supposition that he did not withdraw from his undertaking until the mill was built.
The evidence, however, does - not warrant a verdict for more than $400. It fails to show that he expressly agreed to pay more, or to show the circumstances under which any such agreement was entered into by any of the parties. With this qualification there may be
Judgment on the verdict.