Saco Manufacturing Co. v. Whitney , 7 Me. 256 ( 1831 )

Mellen C. J.

delivered the opinion of the Court at the ensuing May term in Kennebec.

The promissory note declared on was given by the defendant for the price of two shares of stock in the company, and was made payable to Pray, treasurer of the company; and was indorsed in blank by Pray as treasurer, and also in his private capacity. The consideration for which the note was given, was the memorandum signed by Rogers, calling himself agent for the company, by which he promised to the defendant that Pray, the treasurer, should give his obligation for certificates of two shares of stock in the company. It does not appear that Rogers had any authority from the company to enter into any such stipulation in behalf of it. Numerous objections have been urged against the plaintiff’s right to recover.

It is contended that the defendant’s promise was not founded on any legal consideration. “ It is a known rule of law that to make a contract or agreement obligatory, the consideration must be either a benefit to the person promising, or some trouble or prejudice to the party to whom the promise is made.” 1 Comyn on Contr. 13; 1 Comyn’s Dig. tit. Action on the case upon Assumpsit B. and numerous cases cited; Yelv. 184, and note 1, We must consider the defendant as desirous of becoming the owner of two shares in the stock of the company, and as giving the note in question in consideration of the agreement of the plaintiff to procure them for him. This agreement was a benefit to him. Here was promise for promise, which is a good consideration. 1 Com. on Contr. 14.

It is contended, however, that here was not one binding promise for another j because Rogers had no authority to bind the company; and that the promise did not bind him personally. It is true he subscribes the note with his name, adding the words “ agent Saco Manufacturing Companybut as he was not agent for the purpose, the words following his name may be considered merely as descriptive, but he personally bound himself.

It is said that Rogers received no benefit from the contract made with the defendant, because Whitney’s note was made payable to Pray as treasurer of the company ; but if it was not any advantage to Rogers, the performance of tlie promise would have been an advantage, and the broach of it an injury to Whitney ; and thus, according to the principle above cited from Comyn, the promise on each side was binding.

Again it is said that the promise of Pray to deliver to Whitney a duly executed certificate of the shares, was a conditional one, as to üie time when it shall ho delivered ; namely, on payment of the note and interest, and so does not agree with the contract or promise of Rogers ; but this objection is not maintained by facts. Rogers describes no particular form of the certificate in his agreement with Whitney; besides, it appears to be in conformity to the vote of the directors, giving to the treasurer the power to sell shares and give certificates of them to purchasers.

Again ; it is contended, that this action cannot be maintained, because, tbougb Rogers procured a certificate of the said shares to be duly issued by the treasurer, and iuformed the defendant of the fact and requested him to receive it in exchange for the accountable receipt which he then held, still he did not carry the same to tile defendant and deliver or tender it to him. We think the answer to this objection by the plaintiff’s counsel ma.y be considered a sufficient one; which is, that Rogers, in the above transaction, was acting as the agent of the defendant, and that his possession must be deemed the .possession of the defendant. But, as we have said before, the promises were mutual and independent; and therefore, if the note had been made payable to Rogers, he need not, in an action on it in his own name, have averred or proved a delivery of the certificate to the defendant; and for the same reason the present plaintiffs need not do it.

Again it has been urged that the note declared on has been assigned to trustees, and so the plaintiffs have no authority to maintain an action in it. It appears, however, that it was produced on trial by the plaintiffs, and we may and ought to presume that it has been lawfully reconveyed to them, with power to recover it, if due. 3 Wheat. 172, 183. Besides, the defendant seems to have no interest in this arrangement.

The last particular we shall notice is, the language of the defendant in his communication to the company, bearing date January 15, 1830; in which he proposes a negotiation, by which he might transfer one share to the company by way of security for the very note now in suit, and that the interest, and $100 in part of the principal, should be retained by the company for the purposes proposed by him; thus treating the note as valid, due and uncontested. In view of all the facts and objections which we have examined, we are all satisfied, that the ruling of the judge was correct, admitting parol proof of the creation of new shares under the vote of July 9, 1828 $ and that his ruling was incorrect, that the action was not maintainable. This last, however, was a ruling pro forma, as it appears* The result is that the defendant must be called.