
    Central Turnpike Corporation versus Joseph Valentine.
    Where papers of a corporation, which the clerk of thexorporation testified were lost, liad been intrusted by him to other individuals for a temporary purpose, a long time before the trial at which they were wanted, it was held, that the testimony of such individuals was not necessary in order to lay a foundation for the admission of secondary evidence of the contents of the papers.
    Where the capital stock of a corporation is required by the charter to be divided into a fixed number of shares, in an action brought by the corporation against a subscriber for stock, to recover an assessment laid for the general purposes of the corporation, the plaintiffs must prove that the whole number of shares.were taken up before the assessment was laid, and if any persons subscribed on a condition precedent, that such condition has been either performed or waived.
    Assumpsit to recover the assessments upon sixteen shares . in the Central Turnpike Corporation, alleged to have been subscribed for by the defendant. The cause was tried before Parker C. J.
    The act of incorporation (Si. 1824, c. 13,) provides, that the stock of the corporation shall be divided into 400 shares of $ 75 each ; and that no person shall be held to pay a greater sum than $75 on any share by him subscribed for.
    The subscription papers contained a promise of the suhscribers to pay the sums which should be assessed on their shares.
    The subscription paper said to have been signed by the defendant, was not produced, but was alleged to be lost. It was proved that Harrington, the. former clerk of the corporation, was dead, and his administrator, Train, testified that he had come into possession of all Harrington’s papers, among which were some relating to this turnpike, but there was no subscription paper. And the present clerk, a member of the corporation, who succeeded Harrington, made oath that there was no such paper now on the files. At a meeting of the corporation on June 27tb, 1826, E. Warren was chosen clerk pro tempore, and at a meeting on September 20th, 1826, S. Fiske was chosen clerk pro tempore.
    
    It appeared by the records of the corporation, that names purporting to be the names of subscribers, with the number of shares, were entered therein ; and that the defendant was present at many of the early meetings, sometimes acting as chairman, and there was parol evidence sufficient, if admissible, to prove that he subscribed for sixteen shares.
    The subscriptions were made on several papers, which were, at the time of subscribing, in the hands of persons who were then acting as agents or directors of the corporation. These agents or directors were not produced as witnesses ; nor did it appear that any inquiry bad been made of them, although the defendant objected to the admission of secondary evidence until such inquiry should have been made. These papers had been returned to the clerk and were kept very carelessly by him, and some of them were lost.
    It did not appear, however, that the number of shares, into which the stock was divided, was taken up, until the day on which the last assessment was made, when several persons subscribed for nine shares, the number found, upon an examination of all the documents, to be deficient. This was done in November 1826, and an assessment of $ 13 on a share was then made and notified in the newspapers. It was testified that at this time the directors examined all the subscription papers and books, and found there were but nine shares deficient. This was all the evidence of the amount of the deficiency.
    
      Although" the books of the corporation and the treasurer’s list of assessments and payments were produced, it did not appear that any assessments had been made on the full number of shares. The only evidence as to this came from the testimony before stated. The' votes for the assessments were general, not specifying the number of shares upon which the assessments were made. It appeared that the several directors were authorized to receive assessments ; the treasurer’s books, therefore, would not show the number of shares on which assessments had in fact, beed paid.
    It was testified by Fiske, that in November 1826 the defendant was chosen president of the corporation, but that he declined ; saying that he was willing to pay on his shares, and that the money was ready whenever they chose to call.
    Some of the subscriptions were conditional in regard to the route of the road, but it was stated that nearly all the subscribers had paid their assessments. The road had been finished.
    The jury were instructed, that if they believed the first assessment of two dollars on a share was wanted for preliminary expenses, for surveying and locating the road, &c. and if they were satisfied that the defendant had subscribed in the form supposed, the plaintiffs were entitled to recover that sum ; as also the last assessment, if the jury were satisfied that all the deficient shares had been subscribed for before it was laid ; but that the intermediate assessments the plaintiffs could not recover. A verdict was returned accordingly for the plaintiffs.
    The defendant moved for a new trial, because of the admission of evidence, other than the subscription paper, to prove his promise ; and because of the instructions to the jury.
    
      Oct. m
    
    
      Hoar and Merrick, for the defendant,
    insisted, that as a subscription paper with the defendant’s signature was not produced, secondary evidence of his promise could not be admitted until all the persons, who from time to time had been intrusted with the papers of the corporation, should have been called to givé an account of them.
    If the defendant was a subscriber, he is liable for the assessment made to defray preliminary expenses ; but he cannot be compelled to pay the last assessment, as the evidence tended to show, that when it was laid, all the shares had not been taken up. Part of the subscriptions were conditional, and there was no evidence that the conditions had been performed or waived. Salem Mill Dam Corp. v. Ropes, 6 Pick. 23 ; 1 Chit. Pl. 309 ; Com. Dig. Pleader, C51 ; Appleton v. Crowninshield, 3 Mass. R. 443; Couch v. Ingersoll, 2 Pick. 292.
    J. Davis, C. Allen and Barton, for the plaintiffs.
    In regard to the admissibility of the secondary evidence, they cited Taunton &c. Turnp. Corp. v. Whiting, 10 Mass. R. 327 ; Welsh v. Barrett, 15 Mass. R. 380 ; Jones v. Fales, 5 Mass. R. 101 ; Davis v. Spooner, 3 Pick. 284, [2d ed. 286, note ;] Taunton Bank v. Richardson, 5 Pick. 436, [2d ed. 442, note;] Adams v. Leland, 7 Pick. 62.
    It is sufficiently proved, that all the shares were taken up before the last assessment was laid. There is no evidence of a loss of papers in November 1826, and if all the papers were then present when the directors made the computation by which it appeared that nine shares were not subscribed for, we are to suppose that they examined the subscription papers. The defendant said he was ready to pay the last assessment, and he is estopped to deny that all the shares were taken up. It is to be presumed that the directors took into view the conditions on which some of the subscriptions depended, and that they had been either performed or waived. The burden is on the defendant to show that they have not been complied with, and that any person has annulled his subscription on that account.
    
      Oct. 13 Ih.
    
   Per Curiam.

The secondary evidence, to prove that the defendant was a member of the corporation, was properly admitted. The subscription papers had been in the hands of several persons, and the objection is, that they should all have been questioned in regard to the papers. The Court think this was not necessary. These persons were employed to procure subscriptions, and after procuring them, they would naturally return the papers to the clerk of the corporation ; and the fact that the papers had been in their hands for a temporary purpose, would not lead to the presumption that they still continued in their possession. Further, it did appear that the papers had been returned to the clerk by these agents; and therefore it could not be necessary to call them as witnesses, in order to the admission of secondary evidence. It was also said, that at two meetings, two different persons had been chosen clerks pro tempore, who might have possession of the papers. But each was chosen to make the record for the particular meeting only, and this would not constitute him the keeper of the papers.

A material question is, whether the whole number of shares in the capital stock were taken up, at the time when the assessment, now sued for, was laid. If they were not, the Court are of opinion, on the broad general principles laid down in the case of Salem Mill Dam Corporation v. Ropes, that the defendant is not liable to pay assessments laid for the general purposes of the act of incorporation. And it manifestly is not proved that 400 shares were subscribed for. We should expect it to appear by the books of the corporation, whether the whole number of shares were taken up or not, and what were the names of the respective proprietors and the number of shares for which each was responsible, so that a party interested might there ascertain the fact in question. But we do not mean to say that this is indispensably necessary in all cases. The books may be destroyed by fire or other accident. But where there are no books to resort to, clear and satisfactory evidence of another sort should be required. The main ground on which we proceed in the present case is, that the subscriptions of several persons were upon a condition precedent; one subscribes, if the road shall be made in such a place, another, if in another place. The plaintiffs must show that the condi tions have either been complied with or waived. This has been suggested, but the burden is on the plaintiffs to prove it. We may suppose two different subscriptions to be made upon condi-.ions which are contradictory. It is clear that both conditions cannot be performed, and that both subscribers should not he counted as shareholders.

The defendant is liable for his proportion of the smaller assessment, laid to defray the preliminary expenses of the corporation, although the shares were not all taken up ; but the plaintiffs cannot recover for the larger assessment.

JVeio trial granted. 
      
       See 1 Stark. Ev. (5th Am. ed.) 336 et seq.; Poignand v. Smith, 8 Pick. 278.
     