York & Cumberland Railroad v. Ritchie , 40 Me. 425 ( 1885 )

Tenney, J.

The defendant denies having become a party to the contract, on which this action is attempted to be maintained. Upon the question of fact, whether he executed the contract or not, the testimony is conflicting, and not easily reconcilable. It is further insisted by the defendant, that if he did execute the agreement, that the company have failed to take the steps necessary to furnish a basis for this suit.

We have no occasion to decide this question of fact. Upon the assumption, that the defendant did become a party to the contract, as alleged in the writ, the company cannot prevail, upon the proof adduced.

The suit is to recover the difference between the aggregate amount of assessments on three shares, which it is alleged the defendant agreed to take and fill, and the sum for which those shares were sold. The right to maintain such a suit upon a valid agreement to take the shares, and pay the assessments thereon, and a legal sale of the shares, after a neglect of the owner, to pay assessments properly made and advertised, is given by the statute, incorporating the company. In order to charge the defendant, however, upon this statute liability, there must be a strict compliance with the terms of the statute. And the proof introduced by the company fails to show such compliance.

The charter of the company, special laws of 1846, c. 369, § 5, after providing for the mode in which assessments upon shares may be made, and for directions to be given for payment thereof to the treasurer, requires, that he shall give notice of all such assessments; and in case any subscriber or stockholder shall neglect to pay any assessment on his share or shares, for the space of thirty days, after such notice is given, as shall be prescribed by the by-laws of said corporation, the directors may order the treasurer to sell such share or shares at public auction, after giving such notice as may be prescribed as aforesaid, to the highest bidder, and the same shall be transferred to the purchaser, and such delinquent subscriber shall be held accountable to the corporation for the balance, if his share or shares shall sell for less than the assessments due thereon, <fcc.

At a meeting of the directors of the company on Sept. 11, 1850, it was “ voted, that the president, together with the treasurer, be a committee to adopt such measures as shall promise to be most effective for collecting the arrearages of subscriptions due, and enforce such collection by sales of stock or preliminary employment of an attorney to collect said dues, or in both ways as said committee shall think proper; and that the report of the treasurer of the list of delinquent subscribers be referred to said committee.”

The treasurer testified, that in pursuance of, and claiming authority from said vote of Sept. 11, 1850, and with the consent of the president, he advertised and sold at auction, in the form as prescribed by the by-laws, ;the three shares subscribed for by Charles S. Ritchie, on Dec. 3, 1850, and transferred them, then and there to the purchaser, J. P. Rich, who was the highest bidder for the same.

No provision is made in the charter of the company for a sale of shares, to obtain unpaid assessments thereon, excepting under an order of the directors for that purpose. The directors cannot legally delegate the power to a committee, to order such a sale. And when the order is given by a vote of the directors, it should be absolute and not in the alternative, such as is shown by the vote given to the committee.

The case furnishes no proof, that an order of the directors was given; but on the contrary, it appears by the testimony of the treasurer, that his only authority for selling the defendant’s shares, was the vote of the directors of Sept. 11, 1850, referred to in the case.

Plaintiffs nonsuit.