Troy Turnpike & Railroad v. M'Chesney, 21 Wend. 296

21 Wend. 296 | N.Y. Sup. Ct. | 1839

By the Court,

Nelson, Ch. J.

All the cases in this court from 1 Caines, 381, to 14 Johns. R. 238, show that the condiiion of forfeiture of stock and nil previous sums paid, for non-payment of any subsequent instalment, is but a cumulative remedy given to the company. See 19 Wendell, 43. The general act passed in 1807, 1 R. L. 228, 1 R. S. 580, relative to turnpike companies, as well as the act respecting incorporations for manufacturing purposes, passed in 1811, 1 R. L. 245, 3 R. S. 221, contain clauses nearly verbatim with the one in this charter, and under which several of the decisions were made.

It is true, the forfeiture clause is here carried into the subscription papers; if it had not been so embodied, the rights and habilites of the subscriber would have depended upon, and must have been construed in reference to the act of incorporation of the company ; and the effect of it would have been as available to him as if incorporated into his contract. I cannot think, therefore, that this circumstance varies the question. The most that can be said regarding the uniform construction of the clause is, that the instrument giving the remedy at common law contains also the one under the statute.

This view answers the objection of variance between the contract as set out and as proved. The plaintiffs had a right to count as upon an absolute promise.

The act of incorporation of this company, Statutes, sess. of 1831, p. 232, § 15, provides that notice shall be given, among other things, “ of the place and time” when and where payments are to be made. The notices published designated the individuals by name, and the city or village in which they resided, to whom the payments were to be made. It is urged that the place is too indefinite. The notice was thirty days, and with ordinary diligence there could have been no great- difficulty in finding the individual. At all events, I think if the failure of payment happened on this account, it lay upon the defendant to give some evidence of it.

It is also urged that the verbal authority given to the agent by the directors to negotiate with the subscribers, and relinquish even the whole of their stock if insisted upon, after the company had determined to build a Macadamized turnpike road instead of a rail road, was nugatory; not being a corporate act of the body. Such is undoubtedly the general rule, though the appointment of the agent, and the' extent of his authority, may as in the case of an appointment by a natural person, be established by circumstances. 14 Johns. R. 118. 4 Cowen, 645. But the question is not at alt important here; because, 1. The defendant was advised of the direction thus given in respect to the previous subscribers before he subscribed ; and 2. Even if his position be correct, as to the ágent in this case, the only, consequence would be, that the subscribers are still liable, which cannot operate to his prejudice. If it be said the directors subsequently ratified the act erasing their names, the answer is, that they have done no more than the defendant was advised they intended to do. ...

Upon the whole, under the charge of the judge at the trial, and the verdict of the jury, I do not perceive that the defendant can complain either in law or equity.

New trial denied.