Hudson Real Estate Co. v. Tower

30 N.E. 465, 156 Mass. 82, 1892 Mass. LEXIS 138

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1892
• Status: Published

Opinion

Allen, J.

At the time when the defendant signed the subscription paper declared on, it was not a contract, for want of a contracting party on the other side; but it has now been established that a subscription of this sort becomes a contract with the corporation when the corporation has been organized, and in this way the objection of the want of a proper contracting party is finally avoided, provided everything goes on as contemplated without any interruption. Until the organization of the corporation, the subscription is a • mere proposition or offer, which may be withdrawn, like any other unaccepted offer. Unless the signer is bound upon a contract, he is not bound at all. ' It is open to him to withdraw. It is not on the ground that there was no sufficient consideration. The seal would do away with any doubt on that score. But it is on the ground that tor the time being and until the corporation is organized the writing does not take effect as a contract, because the contemplated party to the contract, on the other side, is not yet in existence, and for this reason, there being no contract, the whole undertaking is inchoate and incomplete, and since there is no contract the party may withdraw. Limerick Academy v. Davis, 11 Mass. 113. Thompson v. Page, 1 Met. 565. Ives v. Sterling, 6 Met. 310. Perkins v. Union Button-Hole Embroidery Machine Co. 12 Allen, 273. Athol Music Hall Co. v. Carey, 116 Mass. 471. Phipps v. Jones, 20 Penn. St. 260.

In the present case, there was evidence which would warrant a finding that the defendant thus withdrew, before the time came when his subscription would have become a contract.

Exceptions sustained.