Fairhaven Turnpike Co. v. French

1 D. Chip. 209

Opinion

Chipman, Ch. J.

delivered the opinion of the Court.

The averment that the Company had divided their stock into shares, certainly is not an impertinent averment in this case. The Company stock could be divided into shares, in this case by the act of the Company only. A share in the stock of a Company, has reference to an aliquot part of the Stock. What that aliquot part is, must be determined and known, in order to .know the quantity of interest, to which each member, owning a certain number of shares is entitled, and the rights of each member, as a constituent-part of the Company. The aliquot parts of the Company stock are not ascertained by the act of incorporation; but, by the seventh and eighth sections of the act, we see it was contemplated, that the stock or interest of the proprietors or members of the Company, should be ascertained and known by shares, which is left to depend on some act of the Company. Now what do the Company sell, or what does the purchaser buy, without something to which it maybe referred for ascertainment ? Who is to determine whether it is to consist, of a tenth, a hundreth or a nintieth part ? Had the shares been sold as certain aliquot parts, as three hundredth parts, for instance, it would have been sufficient. Any further averment might have been unnecessary: because such disposition of the stock, by the Company in certain proportions of the whole, would of itself have been a sufficient act of the company — a sufficient ascertainment of the shares. And perhaps, proof of such sale might be sufficient proof of the averment in this declaration, of the division of the stock into shares. But as no such mode was adopted, the averment does not seem to be unnecessary.

There is certainly a distinction between an averment merely unnecessary, and an impertinent averment. An averment of a particular fact, which would be supplied by a general presumption, is merely unnecessary, as in a declaration on a promissory note. The general averment of value received, is a sufficient averment of a consideration, and it will be presumed that there was a sufficient consideration for the promise. Under this averment it is unnecessary to aver of what particulars the consideration consisted. But, if the plaintiff in such case, go on to aver a particular consideration, as _a horse sold and delivered, money paid &c.; the fact, though unnecessary to have been averred, must now be proved. But if he go farther and aver also that the horse was bred by A, or that the money was brought from Europe, it is wholly impertinent. The fact, who bred the horse, or whence the money was brought, cannot have any relation to the consideration between the plaintiff and de fendant, it may be rejected and need not be proved: but whether the horse was sold, or the money paid, is of the very essence of the consideration; but which consideration would have been taken on the general presumption as good, under the general averment, had The particular averment been omitted.

In the present case the Court are of opinion, that this averment is not of a fact impertinent, bat of a fact, which at least must have been presumed from same ground-that the Company Had divided their stock into certain ascertained shares-that in selling the shares they sold known portions of the stock. The prooff cannot, therefore, be dispensed with.

On which the plaintiff’s became non suit.