
    The Worcester Turnpike Corporation versus Aaron Willard.
    If a member of a turnpike corporation expressly promise the corporation to pay his proportion of the legal assessments, such promise is good in law, and an action may be maintained for the breach of it, notwithstanding the general remedy provided by the statute of 1804, c. 125, defining the general powers and duties of turnpike corporations.
    The declaration in this action was in case, and a new count had been filed, as follows, viz. “ for that the said plaintiffs were, by an act of the General Court, &c., passed, &c., made and constituted a corporation or body * politic by the name of [*81] The Worcester Turnpike Corporation, to make, lay out and keep in repair a turnpike road from Roxbury to Worcester, in the course, direction and manner described in said act of incorporation, and afterwards, at, &c., on, &c., in consideration that the plaintiffs, at the request of the said Aaron, had admitted him to take one share in the capital stock of said corporation, and to become a proprietor therein, he, the said Aaron, then and there undertook and faithfully promised the plaintiffs, that he would take the said one share in their said stock, and would pay all such legal assessments as should thereafter be made by the government of said corporation, after the same should have been organized, and carried into operation according to the said act of incorporation, at the time the same should become due and payable; provided, however, and his the said Aaron’s promise aforesaid, was upon these conditions following, to wit, that the number of shares in said capital stock should be six hundred, and also that the said road should be finally located and made from Worcester, so as to cross Charles river, near the upper falls, so called, at or near General Elliot’s mills, thence in the most eligible and practicable route near the Punch Bowl Tavern in Rox-Imnj, thence down near Roxhury Meeting-House; and the plaintiffs aver that afterwards the said corporation was fully organized and went into operation, and the number of shares in the said stock thereof was six hundred, and the said road was located and made in the course and direction in the conditions aforesaid described, and the said Aaron, as such proprietor as aforesaid, paid the first assessment of twenty dollars on his said share ; and afterwards, to wit, at said Boston, on, &.C., the government of said corporation made a second assessment of ten dollars upon each and every of the shares in the said stock, to be paid into the treasury of said cor- [ *82 ] poration, on or before, &c.; and * there afterwards on, &c. the government of the said corporation made a third assessment of thirty dollars, &c., and there afterwards on, &c. the government of the said corporation made a fourth assessment of twenty dollars, &c., all which said assessments amounted in the whole on said Aaron’s share to the sum of sixty dollars; of all which said assessments, at said Boston, on the said days on which the same were respectively made as aforesaid, the said Aaron had notice, and was requested to pay the same: Yet although the said times for the payment of the said assessments are all long since passed, the said Aaron hath not paid said several sums of money assessed as aforesaid, nor either nor any part thereof, to the plain tiffs, but neglects and refuses so to do.”
    Upon the issue of non assumpsit, the cause was tried at the last November term, in this county, before the Chief Justice, and a ver diet found for the plaintiffs by consent of the parties, subject to the opinion of the Court upon the following case, viz. That after the passing of the act of incorporation, the persons named therein as members, in order to ascertain who would be proprietors and the terms of their admission, drew up a subscription paper of the following form, viz. “We, whose names are hereunto subscribed, hereby severally agree to take the number of shares in the Worcester Turnpike Corporation, by each of us set down, and affixed to each of our respective names; and to pay all such legal assessments on each of said shares, as shall hereafter be made by the future government of the said corporation after the same shall have been organized and carried into operation according to the act or law of the commonwealth for establishing said corporation; provided, however, that this subscription and obligation is upon this condition” [as in the declaration is set forth] ; “that among other persons, the defendant subscribed the same, and set down and affixed one share to his name; that six hundred shares were subscribed; that the said turnpike was * finally located ac- [ * 83 ] cording to the condition prescribed in the said subscription paper; that, to defray the necessary expenses of locating and making the said turnpike, the said corporation have duly made four assessments on the said proprietors, the first of which, being twenty dollars, the defendant has paid; that the other three assessments amount to sixty dollars on a share, of which the defendant had due notice, but refused to pay them. If the court should be of opinion that upon these facts the plaintiffs have maintained this action on their new count, the verdict was to stand; otherwise to be set aside, and a general verdict entered for the defendant, and judgment to be rendered accordingly.
    The cause stood over to this term for argument, and now B. Whitman, of counsel for the defendant, argued that the tenth section of the act of 1804, c. 125, defining the general powers and duties of turnpike corporations, had provided a specific remedy for the delinquency of any proprietor in the payment of assessments: that by his subscription to the paper in this case, the defendant had made himself a member of the corporation, and had become legally bound to pay all assessments duly made; his share was liable to be sold by the treasurer on his neglecting to pay any such assessment, and this was the only remedy which by law the plaintiffs had to enforce payment. The special promise of the defendant made him no farther liable than the law had before made him. It was merely a promise to perform a duty, which the law had already enjoined upon him, and for the breach of which the law had provided a distinct and adequate remedy. To subject the defendant to this action, while those members of the corporation who did not subscribe the paper are exempted, is to maintain that different members of the same corporation are bound by different laws, and obliged to their duties by different sanctions, which seems a great absurdity.
    * Jackson, for the plaintiffs
    thought the case very plain. [ * 84 ] The defendant made a legal explicit contract, to perform certain duties, on certain specified conditions, and the case shows the conditions fulfilled. If he was able to contract, and the corporation were capable of being contracted with, the law will give them a remedy by action.
    The general statute respecting turnpike corporations makes the shares liable to be sold. But this may be, and most commonly is, in fact, a very inadequate remedy. A prudent corporation will therefore require a personal stipulation, from each member, that in every event they may be assured of adequate funds to carry on their undertaking. And there is no principle of common law, nor any thing in the statute, which forbids the making or enforcing such a stipulation.
   The opinion of the Court was afterwards delivered as follows, by

Parsons, C. J.

The defendant objects to the verdict found for the plaintiffs in this action, because there was no evidence to prove the contract declared on. The contract produced in evidence was signed by the defendant, and the other members of the corporation. In this contract he engages to take one share, and to pay all such legal assessments as should afterwards be made by the government of the corporation, on condition that the number of shares should be six hundred, and that the turnpike should be located as is there described ; and it was admitted that the conditions were performed, and the assessment on the shares duly made, as declared by the plaintiffs.

The statute of 1805, c. 67, erecting this corporation, as well as the statute of 1804, c. 125, respecting turnpike corporations in general, provides that the shares of a delinquent proprietor may be sold for the payment of the assessments which are in arrear. [ *85 ] This remedy the * defendant contends is the only remedy which the plaintiffs by law have, and that he is not liable to an action for not paying his assessments.

The plaintiffs contend that they may not only sell the shares, but on a contract like this, as a cumulative remedy, may compel the payment of the assessments by action.

The indemnity which a turnpike corporation can, by the stature creating it, claim for the expenses of locating and making the turn pike, arises wholly from the legal toll to be received.- And after it is created, with all the necessary powers, it may be very uncertain whether the indemnity will be sufficient,, as the expenses and the toll are each uncertain; and the directors can have no funds to enable them to' contract with or pay the workmen, but the value of the shares when sold, unless they bind themselves personally to the payment. This cannot reasonably be expected from them, without some further security from the proprietors than the value of their shares, which in fact may be unequal to the reimbursement.

This furtner security is therefore a reasonable one, and of convenience to the public, so far as turnpikes are a common benefit. There is no legal objection to a contract between the corporation and the individual members of it, more than between a town and any of its inhabitants, when the authority of the corporation to contract with its members is within the reason of the powers vested in it, and may be necessary, for their execution; although this authority may not be expressly given by the incorporating act, or by any other statute.

Notwithstanding the remedy of sale given by statute, if the proprietors, to induce the corporation to make the turnpike, will expressly promise to pay their proportion of the legal assessments for the expenses, and the corporation proceed in the execution of their powers on the faith of these promises, we are satisfied that the promises * are good in law. They are made between [ * 86 ] parties competent to make them, and for a legal consideration. This consideration arises not only from the expenses incurred by one party (the corporation), but also from the benefit received by the other party (the proprietor), by his interest in the turnpike road, and his right to receive a proportion of the toll. If the promise is good in, law, an action to recover damages for the breach of it may be maintained.

In applying the evidence in the cause to these principles, it appears that the defendant, in consideration of becoming a proprietor of one share, made a legal contract with the corporation, to pay the assessments duly made, on certain conditions; that those conditions were performed; that the assessments on his and on the other shares were duly made; that he had notice, and was requested to pay his assessments, which he refused. Having made a legal contract with the plaintiffs for a good consideration, and having broken it, he is liable for the damages arising to the plaintiffs for the breach. The plaintiffs have therefore maintained their action, and the verdict must stand .

Judgment according, to the verdict. 
      
      
         Gilmore vs. Pope, post, 591. — Middlesex Turnpike Corporation vs. Swan, 10 Mass. 384, 3d Ed. and note. — Taunton and South Boston Corporation vs. Whiting, 10 Mass. 334. 3d Ed. and note. — Essex Turnpike Corporation vs. Collins, 8 Mass. 292.— Middlesex Turnpike Corporation vs. Locke, 8 Mass. 268. — Andover Turnpike Corporation vs. Gould, 6 Mass. 40. — Andover Turnpike Corporation vs. Hay, 7 Mass. 102.— New Bedford and Bridgewater Turnpike Corporation vs. Adams, 8 Mass. 163.
     