
    John Gilmore versus Elijah Pope.
    Where one subscribed for certain shares m a turnpike, and promised to pay to A. B., agent of the proprietors, all assessments, &c., it was held that the agent could maintain no action for the assessments unpaid, but that the promise wou’d support an action by the proprietors in their corporate capacity.
    This was a special action of assumpsit brought by the plaintiff, aaming himself “ one of the Taunton and South Boston Turnpike Corporation,” and agent for the said corporation to procure subscriptions for shares in the turnpike road to be laid out and made by said corporation, and alleging a promise of the defendant to him, to take two shares, and to pay to the plaintiff or his order, on demand, all assessments that should at any time be made by said corporation for the purpose of laying out said turnpike road, and making and keeping the same in repair, and for damages incurred for lands over which it might pass, provided it was laid out and made on the west side of Pinnacle Rock, so called, &c. The plaintiff then avers that the promise aforesaid, and all moneys to be paid to him in virtue thereof, were for the sole use and benefit of the said corporation;— that the road was laid out on the west side of Pinnacle Rock, &c.; —that the corporation have expended 30,000 dollars in laying out and making said road, &c., and for those purposes made sundry assessments on the shares, which are set forth, amounting in the whole to 90 dollars on each share, of which the defendant had due notice, and had been requested to pay the assessments on the said two shares, but has refused, &c.
    The cause came before the Court upon a statement of facts agreed, to the following effect
    [ * 492 ] * That the said corporation was duly established and regularly organized according to law; — that the plaintiff was duly appointed an agent for said corporation, for the purposes expressed in the declaration ; — that the defendant signed a subscription paper, by which the associates were admitted, and which, after reciting the incorporation, and that the stock was divided into three hundred shares, proceeds : “ We the subscribers, in consideration thereof, and also of the benefit the said turnpike road will be to us and the public, hereby engage to take the number of shares set against our respective names severally, and to pay on demand to John Gilmore, or order, all assessments that may at any time be made by the corporation, for the purpose of laying out, making and keeping in repair the said road, and for the payment of damages to individuals for land, &c., provided the said road is laid out and made the west side of Pinnacle Rock,” &c., annexing two shares to his name ; — that the defendant has received his certificates of the two shares, and that they are recorded in the clerk’s books ; — that the road was laid out and made in the route prescribed; — that the assessments stated in the declaration have been regularly voted and notified; — that the defendant has paid no part of them ; — and that the corporation had laid out, and nearly completed the said road, previously to the commencement of this action.
    If, upon these facts, the Court should be of opinion that the said assessments are recoverable in this action, the defendant agreed to be defaulted, otherwise the plaintiff agreed to become nonsuit.
    
      Wheaton, for the defendant
    contended that if the promise was to be considered as made to the plaintiff, it was nudum pactum, and wholly without consideration; it was a promise upon condition that the road should be laid out in a specific route; but the plaintiff had no control of that subject. It was not in his power to direct * where the road should pass. And as the [ * 493 ] only consideration, that could operate on the defendant, was the making the road in a place which he was desirous of, he had in fact nothing to ground such a promise upon as the law will enforce by action.
    If the promise was to the corporation, they might bring their ac tian; but to that the defendant would contend that, the law having provided another and sufficient remedy against delinquent proprietors, by the sale of their shares, this promise was void also as to the corporation.
    
      Tillinghast, for the plaintiff
    contended that here being an express promise to the plaintiff in writing, to pay him, as agent for the corporation, upon a condition, which had been exactly complied with, and from which it must necessarily be presumed that the defendant was to derive a benefit, or at least a gratification, there was sufficient evidence of a consideration to support the action.
   Parsons, C. J.

All the facts necessary to maintain the action are agreed, provided any action lies on the subscription, and that such action could be sued by the present plaintiff. It has been settled in the case of The Worcester Turnpike Corporation vs. Willard , that on a subscription for admitting associates, if, by the terms of it, the associates severally engaged to pay the assessments made on their shares, the corporation might maintain an action on such engagement to recover the amount of the assessments; and we are of opinion, that this corporation might maintain an action on this agreement, to recover of the defendant the assessments made on his two shares. But the action cannot be maintained in the name of a mere agent of the corporation, as in this transaction the plaintiff has alleged himself to be; there being no consideration, as between the agent and subscribers, to support an action of assumpsit.

* The Court then ordered the plaintiff to be called ; [ * 494 ] but the parties agreed, that the defendant would confess judgment for the amount of the assessments, and should have judgment against the plaintiff for his costs; and the entry was made pursuant to this agreement . 
      
       Ante, p. 80.
     
      
      
         See Taunton & South Boston Turnpike vs. Whiting, 10 Mass. 327, and cases there cited in the notes.
     