The President, Directors and Company of the Union Turnpike Road v. Thomas Jenkins; The same v. the same, in three other actions, 1 Cole. & Cai. Cas. 264

Kent, J. That doctrine has been completely overruled in a case where Skynner, Baron, delivered in the House of Lords the unanimous opinion of the twelve judges. Caines Amicus curia. Rann v. Hughes, 7. D. & E. 350. Van JYess. A written contract without considera- . .. , . . non may be declared on as it is. Lewis, C. J. This court has decided that a coni tract merely in writing, does not supersede the necessity Of a consideration; Williams.

That the contract was hot consummated by payment of the 810 required by the act, is also urged as a reason why the action cannot be maintained, but surely the commissioners might have dispensed with this. As to the objection that the promise was given to pay such slim as the President, Directors and Company should order; and that the order was only by the President and Directors, it can hardly be thought the defendant ever hoped to rely upon it. The President and Directors are the agents of the Company, duly chosen by them physically and legally to express their will.

The order made by the President and Directors, is an order made by the Company. This follows necessarily, for the President and Directors are, by the words of the law, to act for and to manage the concerns of the Company: when • ** they 'were chosen the powers of the Company were transferred to them, and this being under the letter of the statute, they were the only persons to make the order. Had it been complied with, the defendant would never again have been called upon for anything paid under it. Harison, 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 aliunde. On the first count, the objection, as to thf order, is certainly fatal.

The act operating like a charter, specifies a particular manner in which the orders of the subscribers are to be made; the bye-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 authorised the President and Directors to make orders on the Stockholders, that very authority can be supported, only by allowing a violation of the law by which the Company itself 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 in 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 appii5 k . cable *0 the second and third counts, which were on the ;ame note as that mentioned in the first; if so, Eddowes v. Hopkins, relied on by the plaintiffs, shows the amendment cannot be granted. Per Curiam, delivered by Radcliff, J. In this case there is a motion in arrest of the 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 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.

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" -6‘ subscribed, do for ourselves and our legal repre- “ sentatives, promise to pay to the President, Direc- ■ ■ tors 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 on each share were paid, and which the act required the defendant to pay at the time of subscription. I cannot discover any ground oh which this promise ought to be considered as void. The subscription was taken by commissioners who were authorised 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 render the promise binding. By force of the act itself 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. I cannot imagine that a contract in terms so express and complete should tje. Resigned 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 pain of the forfeiture of the shares and all previous payments. This provision was designed as an additional security 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. Not 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, I also think is not well taken. The subscription was for the full sum originally due for 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. I, therefore, consider the contract as reciprocally binding, and founded oñ 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, I think, properly relinquished by one of the defendant’s counsel. It does not appear when the precise number of 1,000 shares were subscribed. The defendant subscribed his shares on the 17th of April, 1801, arid 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. \ The third objection is, that no order or determination of the President, Directors and Company, requiring the payment of this instalment, is averred. 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 mode 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 authorised to manage the concerns of the Company.

The act invests them with this powei, 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. The last objection applies to the second and third counts only, in which the plaintiffs have declared on the defendant’s subscription as upon a note of 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 malting of the note. The shas es 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 cov-ius, therefore, cannot be maintained unless the note be considered to come within the statute, which I 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 ot any part of that sum would finally be demanded or become due. The payment was, therefore, uncertain and contingent, and such a note has frequently been held not to come within the statute, and can be declared upon only as a special agreement. These counts being, therefore, defective, and the verdict general, the judgment ought to be arrested 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 I apprehend the correct rule to be, that all the evidence given would properly apply to that count as well as to the others, I think the amendment ought to be allowed. The practice of amending in such cases is well established, and is consistent with reason and justice to the parties.

The result of my opinion, therefore is, that the judgment be arrested unless such amendment be made, and in that case, that the motion be denied. Lewis, C. 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 share's in the capital stock of said Company, for certain payments called for, pursuant to the act of incorporation, by the said President and Directors. The declaration contains three counts.

The first sets forth the act of incorporation, the formation of the Company pursüant 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 mo, tian 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 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 engagement in the words following: “ We, whose “ names are hereunto subscribed, do for ourselves i£ and our legal representatives, promise to pay to the “ President, Directors and Company of the Union u Turnpike Road, the sum of twenty-five dollars, for “ every share of stock in the said Company, set op- “ posite to our respective names, in such manner and iC proportion, and at such time and place, as shall be de- “ termined by the said President, Directors and Coma panyP It also further requires, that every subr scriber 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 consummation of the contract. These were cotemporaneous 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 apprized 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 S( and from the stockholders respectively, all such u sums of money by them subscribed, or to be sub- “ scribed, at such times, and in such proportions “ as they shall see fit, under pain of forfeiture of a their shares, and of all previous payments made •u 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 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 coukl. 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 im sisted the suit was maintainable on the second and third 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 for want of a consideration. I am of opinion judgment ought to be arrested. 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 plaintiffs’ attorney was correct, and therefore he deemed it sufficient for the amendment.

In this the bench concurred.