Trott & al. vs. Warren, 11 Me. 227

Mellen C. J. at the ensuing April term in Cumberland, delivered the opinion of the Court. This case presents several questions for consideration; and as we are all satisfied that the verdict must be set aside and a new trial granted, it may be useful to the parties for the Court to express their opinion as to all the points which have been the subjects of examination. It appears that on the first of April, 1828, Isaac Wendell was the sole owner of the property replevied and in controversy in this action.

The first question in the order of events is, whether by the alleged agreement between him and the Kennebunk Manufacturing Company, of the said first of April, 1828, the property in dispute was legally conveyed to, and vested in said Company. As the plaintiffs claim under a sale of said property, on execution against said Company, as the property of the Company, the above mentioned question is one of vital importance to them. Unless they can substantiate their title to the goods and chattels replevied, it is of no importance to examine the rights of the defendant.

The first objection urged against the title of the plaintiffs is, that the Kennebunk Manufacturing Company, on the said first of April, were not a corporation, capable of contracting for the property in dispute, and of taking and holding the same; inasmuch as it had not then been organized completely, nor all the shares subscribed for. The Court are of opinion that the facts stated in the report of the Judge shew the existence of the Company as a corporation, capable of taking and holding property.

In addition to the authorities cited by the counsel for the plaintiffs to this point, we would merely refer to the act establishing Bowdoin- College, which contains a grant to the corporation of certain lands, which, of course, preceded the organization under the charter. The case of the Salem Mill-dam Corporation, 6 Pick. 23, was a question as to the legality of an assessment, which depended on the peculiar language of the Act. In the case before us, many officers had been chosen and important corporate acts had been done, to all of which we refer without a restatement of them -in this opinion.

The next question is, whether any contract was made by the corporation with Wendell, by means of which the property in question was conveyed to the corporation. The only evidence relied on of such sale is the written contract or agreement of April 1, 1828. This was signed by Wendell and by only two of the purchasing committee, being a minority — and the jury have expressly found that the committee did not ratify or assent to the sale of the first of April; or, as the Judge has certified, that a majority did not by parol or otherwise.

This fact, thus found, is decisive against the plaintiffs, in respect to their right to retain the verdict. We are of opinion that the instruction of the Judge was correct as to the question of alleged fraud in the supposed sale, in respect to the creditors of Wendell, as also in respect to innocent purchasers of, or under the Company, for a valuable consideration and bona fide, and without notice of fraud in a prior sale.

It has been contended that there are two questions to which the attention of the Court and jury were not particularly directed at the trial, and in respect to which the jury have expressed no opinion.

In the first place, it is said there are facts in the case, shewing that the Company ratified, or such as would authorize a jury to infer a ratification by the Company, of the contract of April 1, 1828, as a sale to them of the property in question : or if not, that there is evidence of a parol contract of sale of property to the amount of $14,000: — but to which the attention of the Court and Jury was never directed.

These may constitute subjects of interesting inquiry on another trial, and on which the jury may pronounce their verdict; but as the written agreement of April 1, 1828, and its legal character, was the only evidence of sale relied on, and as this agreement was never ratified by a majority of the committee in any manner, the consequence is, that the verdict which was for the plaintiffs, is contrary to law and inconsistent with itself: of course it cannot stand. Verdict set aside and new trial granted.