Walworth v. Brackett

98 Mass. 98

Opinion

Hoar, J.

The court are all of opinion that this case is settled by the decision given in the case of Newcomb v. Reed, 12 Allen, 362. The only circumstances which now appear, different from those which were the basis of that decision, are these: that the plaintiffs offered to show that two of the persons named in the act of incorporation did not consent to the call of the first meeting ; but, upon being requested, refused to join therein; and did not attend said meeting nor participate in the organization of the company; that none of the persons acting became associated therein at their request or by their authority; and that there were no subscribers to the stock of the company previous to the date of the act of incorporation.

But the fact remains that there was an act of incorporation by the legislature; that the first meeting was called, though not in the mode directed by the statute, (St. 1855, c. 140,) by one of the persons named in the act as a corporator; and consisted of the persons associated with him, by his consent, and with the acquiescence of the other named corporators, in taking the stock. That there were no subscribers to the stock of the company previous to the date of the act of incorporation does not show that there were not such subscribers before the call for the first meeting was issued; and, as it does not appear that the two persons named in the act of incorporation who refused to participate in the organization made any objection to their associate’s proceeding without them, or made any claim to the exercise of the corporate powers, either at that time or subsequently, it is to be inferred that the subscribers to the stock undertook to organize the corporation with their assent, although not by their authority.

As against all persons but the Commonwealth, therefore, and the two persons named as corporators who refused to join, if they had chosen to assert an adverse right, the organization seems to be valid. Until the organization of the corporation, as there were no subscribers to stock before the date of the act of incorporation, the persons named in the act were entitled to hold the franchise, and control the organization. St. 1855, c. 140. All these persons had notice that an organization was intended, and two of them refused to join. But it is still true, as was said in the opinion in Newcomb v. Reed, that “ all of them who desired to do so have accepted the act, organized under it, issued stock, elected officers who have acted and served in that capacity, carried on business, contracted debts, and exercised all the functions of corporate existence. It is therefore too late to deny that the corporation ever had any legal existence.”

Judgment for the defendmts on the verdict.