Davis v. Proprietors of the Second Universalist Meeting-house

49 Mass. 321

Opinion

Shaw, C. J.

The court are of opinion, that the by-law, by virtue of which the plaintiff’s certificate was issued, was valid. It was passed at a meeting of the persons incorporated, which was duly warned, and which was held for the purpose of accepting their charter and organizing under it, and electing a committee to frame and report a code of by-laws. The raising of funds was one of the objects necessarily embraced in the objects of the corporation, after its charter was accepted; and by-laws respecting that object might well be passed. The provisions of the Rev. Sts. c. 44, <§> 2, as to by-laws concerning the matters there enumerated, are not restrictive but directory.

The court are also of opinion, that the by-law of the defendants, and the plaintiff’s subscription for shares, constituted a contract; and that the defendants had authority to make such a contract. By their act of incorporation they were authorized not only to build , a meeting-house, but also to hold property, besides their house, the yearly income of which should not exceed $1500, that is, property to the amount of $30,000, to constitute a fund for parochial purposes. To borrow money, then, was an incidental power conferred on them.

The plaintiff having, on his part, performed the terms of the special contract, so as to leave a mere simple debt or duty between the parties, he is entitled to recover back the $100 in an action of indebitatus assumpsit. 2 Stark. Ev. 95. The contract, as before stated, arose -out of the defendants’ vote and the plaintiff’s subscription. The certificate, issued under the seal of the president and clerk, was not the contract, but merely established or evinced the relation of the plaintiff as a stockholder.

Judgment for the plaintiff.