60 Me. 430 | Me. | 1872
This is an action of assumpsit. The plaintiff has obtained a verdict for $4,450.74. The defendant moves to have-the verdict set aside upon the ground that it is against law andi against evidence. The question is, whether the verdict can be' allowed to stand. We think it cannot. We fail to perceive any ground upon which it can be sustained. Certainly it cannot upon’ the ground that the plaintiff was a member of the firm of N. O. Mitchell & Co. That firm was created by written articles of agreement. The names of its members are not only signed at the bottom of the agreement, but they are mentioned in the body of it. The plaintiff’s name is not among them. The plaintiff not only did not sign the agreement, but he admits that he never saw it; and his name is not mentioned in it. The entire capital is apportioned among the members of the firm who did sign it, and there
Assuming, therefore, that it is impossible to sustain the verdict upon the ground that the plaintiff was a member of the firm of N. O. Mitchell & Co., both because he never signed the agreement by which that copartnership was formed, and because an action of assumpsit would not be the proper remedy if he had signed it, we come to the inquiry whether it can be sustained upon the ground that the plaintiff made a contract with the defendant alone for a share of his individual interest in the capital stock of the company. We think it cannot for two reasons. The first is that the evidence, fairly construed, will not support such a conclusion. The other is that a contract for the sale of an interest or shares in a joint stock company, is within the statute of frauds ; and in the absence of the other requisites of the statute, must be proved by some note or memorandum in writing. So held in Tisdale v. Harris, 20 Pick. 9, and in North v. Frost, 15 Conn. 400. In the former case the question was very fully considered, and the conclusion reached was that there was nothing in the nature of stocks, or shares in companies, which in reason or sound policy ought to exempt contracts respecting them from those reasonable restrictions, designed by the
The firm of N. O. Mitchell & Co., was to all intents and purposes a joint stock company. The stock was divided into sixteenths. The defendant owned four sixteenths, which was equal to one-quarter of the whole. The plaintiff testifies that it was then contemplated to put in from eight to ten thousand dollars. A sixteenth would therefore be worth not less than five hundred dollars. The plaintiff avers in his declaration that he agreed to take a certain interest, to wit, ‘ one-sixteenth part in and of a joint stock enterprise.’ It is true that in his testimony he denies that he ever said he was
Our conclusion, therefore, is, that the verdict must be set aside and a new trial granted.
Motion sustained.
Verdict set aside.
New trial granted.