President of the Union Turnpike Road v. Jenkins , 1 Cole. & Cai. Cas. 264 ( 1803 )

Kent, J.

That doctrine has been completely overruled in a ease where Skynner, Baron, delivered, in the house of lords, the unanimous opinion of the twelve judges. Rann v. Hughes, 7 D. & E. 350.

Lewis, Ch. J.

This court has decided that a contract merely in writing, does not supersede the necessity of a consideration.

jHixrison, in reply.

In support of the notice in arrest of judgment, nothing can be more clear than that where entire damages are given, and one count is bad, the judgment must be arrested. But in this.declaration there is not one good count, and this is -apparent on the face of the record without any aid aliunüe. On the first count the objection as to the order is certainly fatal. The act operating like a charter, specifies a particular manner in which *the orders or the subscribers are to be made; the [*388j by-laws of the company are not to oppose the laws of this state, or the laws of the union; and yet, supposing the company to have authorized the president and directors to make orders on the stockholders, that very authority can be supported only by allowing a violation of the law itself by which the company is incorporated. If one branch of those by whom a specific act is ordered to be done, can be dispensed with, another may, and there is no saying how far this principle is to be carried; no power can be exercised under the statute but what is created by it, and executed in the manner it prescribes. On the point of consideration, the authority from 5 D. & E. is decisive; no consideration appears by the declaration. The amendment asked must be denied, because it is evident whatever went to support the first count, must have been applicable to the second and third counts, which were on the same note as that mentioned in the first: if so, Eddowes v. Hopkins, relied on by •the plaintiffs, shows the amendment cannot be granted.

Radcliff, J.

delivered the opinion of the court. In this .case there is a motion in arrest of judgment, founded on objections made to all the counts in the declaration.

The counts are three in number, and the objections which apply to all are,

1st. That the promise or contract set forth in the declaration is void for want of consideration, and connected with this is another objection, which was distinctly urged, that the first instalment of 10 dollars not being paid, the contract was incomplete, and not obligatory on the company, and therefore also void.,

2d. That the commissioners appointed by the act did not, as soon as 1,000 shares were subscribed, give the notice required by the act to choose directors.

3d. That no order or determination of the president, directors and company, requiring the payment of the instalment in question, is stated in the declaration to have been made.

*4th. To the second and third counts there is a further objection, that the plaintiffs have declared on the promise or subscription in writing, as upon a. promissory note within the statute.

As to the first, the form of the subscription which contains the promise, is prescribed by'the act in the following -terms: “We, whose names are hereunto subscribed, do for ourselves and our legal representatives, promise to pay to the president, directors and company of the Union Turnpike Road-, the sum of 25 dollars for every share or stock in said company, set opposite to our respective names, in such manner and proportion, and at such time and place, as shall be determined by the said president, directors and company.” The declaration states the plaintiff’s subscription in these terms,,but does not aver that the 10 dollars oil each share were paid, and which the act required the defendant to pay at the time of subscription.

We cannot discover any ground on which this promise ought to be considered as void. The subscription was taken by commissioners who were authorized to receive it, and in the form prescribed by the act. That form 'contains an absolute promise to pay the money to the president, directors and company. On the one side, the interest of the company in selling the shares, and the public advantage to be derived from the success of the institution ; and on the other, the expected profits to accrue from the stock, were sufficient considerations to uphold the promise. By force of the act itself, also, it must be considered as good. The legislature also must have intended that it should be obligatory, for else the formal manner in which it was prescribed to be taken would be senseless and nugatory. We cannot imagine that a contract in terms so express and complete should be designed to mean nothing.

The last section of the act by which the company was created, cannot, in my opinion destroy its effect. It is thereby further enacted, that the directors may call for and demand the sums so subscribed, at such times and in such proportions as they shall see fit, under the pain of the forfeiture of the shares and all previous payments. This provision was ^designed as an additional se- [*390] curity for the proportion of the shares which should remain unpaid, and to enable the company, by a decisive measure, to compel the prompt payments which the objects of the institution required. They had an election to adopt this expedient, and exact the forfeiture, or to enforce payment in the ordinary course by a suit on the original contract. Hot having insisted on the forfeiture, they, of course, have a right to maintain this action.

The objection which is founded on the idea that the contract was not obligatory on the company, and, therefore, not mutual in its operations, we also think is not well taken. The subscription was for the full sum originally due foi each share. The 10 dollars on each share were due immediately, and the engagement with respect to that sum was like a note or obligation payable on demand. The contract was complete, and -the defendant had a right to tender the payment of the 10 dollars, and demand its performance on the part of the company, who had an equal right to enforce it against him. Neither party could revoke it without . mutual consent, or a default on the adverse side. We, therefore, consider the contract as reciprocally binding, and founded on a valid consideration.

The second objection is, that the commissioners appointed, by the act did not, as soon as 1,000 shares were subscribed, give notice to the stockholders to choose directors. This ■was, we think, properly relinquished by one of the defendant’s counsel. It does not appear when the precise number of 1,000 shares was subscribed. The defendant subscribed his shares on the 17th of April, 1801, and it is averred, that on the 21st of the same month upwards of 1,000 shares, to wit, 1;990 were subscribed, and that the commissioners, "on that day, gave notice to choose directors. The particular time of giving this notice, after 1,000 shares were subscribed, could not be material. The act in this respect was merely directory to the commissioners, and if they did not strictly execute their trust, it could not affect the existence of the company, nor any contracts made with them.^[1]

*The third objection is, that no order or determination of the president, directors and company, requiring the payment of this instalment, is averrred. It is averred that the president and directors only made the order. The promise was made to the president, directors and company, according to the form prescribed by the act, and it is therefore, argued that this order ought to have been made by the company, as well as by the .president and directors. This criticism ought not to prevail against the only practicable construction that can be given to the ihode of executing the powers of this corporation. It is obvious that the company in their collective capacity, can never act. The president and directors are their representatives, and they alone are authorized to manage the concerns of the company. The "act invests them with this power, and it is thus set forth in the declaration. They alone could require the payment in question, and the order was properly made ■by' them.

4th. The last objection applies to the 2d and 3d counts only, in which the plaintiffs have declared on the ■ defendant’s subscription as upon a note o'f hand, without setting forth the act or any consideration to support the defendant’s promise. It is not expressly declared upon as a note within the statute concerning promissory notes, but the counts can be supported on that idea alone, for they do not state any consideration independent of the making of the note. The shares of stock to which the defendant would be entitled, are not set forth "as the consideration of the promise, but "merely as descriptive of its extent, and as designating the amount he undertook to pay. These counts, therefore, cannot be maintained unless the note be considered to come .within the statute, which we think it does not. Although by the note the defendant promised to pay 25 dollars for each share, it depended on the future operations of the company, which was not yet organized, whether the whole or any part of that sum would finally "be demanded or become due. The payment was, therefore, uncertain and contingent,^(a) and such a note has frequently *been held not to come within the statute, and can [*392] be declared upon only as special agreement,

These counts being, therefore, defective, and the verdict general, the judgment ought to be arrested,^(a) unless the verdict be amended by applying it to the first count in the declaration. An application for that purpose was made by consent, concurrently with the motion in arrest of judgment. And if the judge, before whom the cause was tried, will certify that the evidence applied solely to that count, or, as we apprehend the correct rule to be, that all the evidence given would properly apply to that count as well as to the others, we think the amendment ought to be allowed.^(b) The practice of amending in such cases is well ' established, and is consistent with reason and justice to the parties.^(c) The result of our opinion¡ therefore, is, that the judgment be arrested, unless such amendment'be made, and in- that case that the motion be denied.

Lewis, Ch. J.

These are actions of assumpsit brought by the president, directors, and company of the Union Turnpike Road against the defendant Thomas Jenkins, on two several subscriptions amounting to two hundred and eighty shares in the capital stock of said company, for certain payments called for, pursuant to the act of incorpora" tian, by the said president and directors.

The declaration contains three counts. The 1st sets forth the act of incorporation, the formation of the company pursuant thereto, the subscription of the defendant, the call for certain payments of seven dollars on each share, and his refusal to pay, whereby he became liable, &c.

The two remaining counts are on the several subscriptions of the defendant, as on his promissory notes.

■A verdict was found generally for the plaintiffs, and the cause is now before us, on a motion in arrest of judgment, on the part of the defendant, and a motion, on the part of the plaintiffs, to amend the verdict by the notes of the judge who tried the cause, so as to confine it to the first count in their declaration, on an affidavit that no evidence was offered on the other counts.

*The principal ground of the motion in arrest of [*893] judgment, is the alleged want of a consideration to support the promise without which, it is insisted, the action is not sustainable. On the record no consideration is stated; no loss or gain to either party; and, testing the conduct of the commissioners by the provisions of the act none is to be found, in my opinion, in the contract itself. The act requires that to constitute a stockholder, he shall subscribe an engagment in the words following: “We, whose names are hereunto subscribed, do, for ourselves and our legal representatives, promise to pay to the president, directors, and company of the union turnpike road, the sum of twenty-five dollars for every share of stock in the said company, set opposite to our respective names, in suchmannor and proportion, and at such time and place, as shall be determined by the said president, directors, and company.” It also further requires, that every subscriber shall, at the time of subscribing, pay unto either of the commissioners, the sum of ten dollars, for each share so subscribed. The subscription and payment are both essential to the con» summation of the contract. These were cotemporanéous acts.

The declaration states the subscription by the defendant merely, without averring any payment or demand of the ten dollars on each share; and it was admitted, on "the argument, that, in fact, they were neither demanded nor paid.

I cannot see, then, any consideration for this promise; and the legislature appear to have been, apprised of the inconvenience that might arise from this source, and have provided for it, in some measure, by the last clause in the statute, which gives a power to the directors “ to call for, and demand, of and from the stockholders respectively, all such sums of money by-them subscribed; or to be subscribed at such times, and in such proportions, as they shall see fit, under pain of forfeiture of their shares, and of all previous payments made thereon.”

Suppose the speculation had been an advantageous one, and before the first call of the president and directors, the stock had risen considerably in value, could not [*394] the directors, *with propriety, have refused to consider Mr. Jenkins as a stockholder, on account of his not having made the payment required by the act on his subscribing ? I think they could. No positive benefit, then, arising from the future emoluments of the company transactions, can be considered as a consideration for the promise, and if it could none such is stated on the -record.

Notwithstanding the motion to amend, it was insisted 'the suit was maintainable on the 2d and 3d counts. I think not For a promise to pay on a contingency, which may, or may not happen, cannot be declared on as a note of hand. The instrument must be payable at all events.

The propriety of amending I need not consider, as I am of opinion, no suit can be maintained on the first count foi want of a consideration.

I am of opinion judgment ought to be arrested.^(a)

Motion to arrest the judgment denied; that for amendment granted.^(b)

[1] See Fire Department v. Kip, 10 Wen, 266; McFarlan v. Triton- Ins. Co. 4 Denio, 392.

(a) The payment of a bill or note must be absolute; and at all events, independent of any uncertainty or contingency. See Kingston v. Long, Raym. 8; Appleby v. Bidulph, 8 Mod. 362; Roberts v. Peake, 1 Burr. 323; Beardsley v. Baldwin, 2 Stra. 1151; Pearson v. Garrett, Comb. 221; Haydock v. Lynch, 2 Id. Raym. 1533. The distance of time at which the payment is to be made is immaterial, if on an event which must necessarily happen; as six weeks alter the death of the defendant’s father; (Cooke v. Colehan, 2 Stra, 1217 ;) and events of a public nature for which the faith of government is pledged, are deemed moral certainties, and not contingent; as the paying off a ship of war. Andrews v. Franklin, 1 Stra. 24; Evans v. Underwood, 1 Wils. 262.

See also Worden v. Dodge, 4 Denio, 159; Ketchell v. Burris, 24 Wend. 456; Dutchess Cotton Manufacturing Co. v. Davis, 14 J. R. 238; Goshen Turnpike Co. v. Hatin, 9 J. R. 217.

(a) Bayard v. Malcolm, 2 Johns. Rep. 550, and, quœre, what the law is now?

(b) See Elliott v. Skypp, Cro. Car. 338; Williams v. Jones, Barnes, 6; Hankey v. Smith, ibid. 449; Newcombe v. Green, 2 Stra. 1197; Doe v. Perkins, 3 D. & E. 749; Bois v. Bois, 1 Lev. 134; Bold's Case, Salk. 53; Halloway v. Bennett, 3 D. & E. 448 ; Bolde v. Walter, 1 Roll. Rep. 82; Petrie v. Hannay, 3 D. & E. 659.

See also Picket v. Snyder, 9 Wend. 416.

(c) See Holt v. Scholefield, 6 D. & E. 695, where Lawrence, J., says, if the ividence apply to the bad as well as the good counts, the amendment from the judge’s notes cannot be made, because (per Buller, J., in Eddowes v. Hopkins, Doug. 377) “it is impossible for the judge to say on which of the counts the jury had found the damages, or how they had apportioned them.'

(a) After pronouncing the judgment of the court, Radcliff, J. observed, that he thought the regular practice was to obtain the certificate of the judge before whom the cause was tried, that the evidence applied only to the count on which it was meant to enter judgment. Kent, J., who tried the cause, said, the affidavit of the plaintiff’s attorney was correct, and therefore he deemed it sufficient for the amendment. In this the bench concurred.

(b) Judgment reversed, (1 Caines’ Cases in Error, 86,) on the ground taken by Lewis, Ch. J., as to the first count.