Brewer v. Stone

77 Mass. 228

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1858
• Status: Published

Opinion

Dewey, J.

1. We perceive no ground of objection to the form of this action. The action was properly brought in the name of Brewer and Baldwin. They were the parties to the contract of the first part, so described in the instrument, and acknowledged to be by the terms of the special written contract signed by the defendant. The fact that, by some arrangement between themselves, one of the plaintiffs had sold out all his interest in the Cape Cod Telegraph Line to the other plaintiff on the 16th of June 1855, and before the execution of the contract by the defendant, does not prevent this action being brought in the name of both according to its actual tenor, Baldwin not objecting. It is declaring upon the promise according to its legal effect.

2. The principal question is, whether the plaintiffs have shown such performance on their part as entitles them to maintain their action. The subscriptions for stock were by the terms of the contract payable when the posts were erected from Provincetown to Orleans; “ at which time said Brewer and Baldwin shall grant and convey in fee simple the said Cape Cod Telegraph Line, with all the fixtures,” &c. The defendant denies that such conveyance has been duly made. The contract, as will be seen by reference to it, was loose and indefinite as to the persons who were to be made grantees in such conveyance. The conveyance was to be made by the plaintiffs, but nothing appears as to whom it was to be made, unless it be a legal inference that the conveyance was so to be made as to embrace the names of all the numerous list of subscribers. No doubt it was to be made for their benefit, and so as to secure their interest. But there is much in the contract to indicate that the parties contemplated acting through a corporation. It provides for the payment of twenty five dollars “ for each and every share of stock.” The subscribers are denominated “ stockholders.” It was, we think, incident to such a subscription for such an enterprise as this, that the subscribers should organize under an act of incorporation, and that the conveyance should be made to the corporation for the benefit of the stockholders. The case shows the giving of such notice as was adapted to secure to each subscriber the opportunity to vote on the question of obtaining such act of incorporation and participating in the proceedings under it. Such being the case, the fact that the defendant, or any one of the subscribers, did not see the notice of the meeting, or attend the same, would not release him from liability to pay his subscription to the plaintiffs, who had performed their contract in a manner that was adapted to the case, and reasonably within the stipulation to convey the same for the use and benefit of those persons who should become subscribers for shares in the stock of the Cape Cod Telegraph Line.

3. The book of records was competent evidence for the purposes for which it was introduced. Exceptions overruled.