
    James Sproat versus William Porter and Others.
    Where certain persons associated for the purpose of instituting a bank, and at a meeting of the associates, at which all were not present, an agent was appointed to attend the legislature for the purpose of procuring a charter, who attended accordingly, but did not obtain the charter, it was held that the associates were jointly liable to the agent for his services
    Assumpsit and quantum meruit for services and labors performed by the plaintiff at the request of the defendants.
    The action was tried before Parker, J., upon the general issue joined, at an adjourned session of the last October term in this county, holden here in April last.
    The case made out at the trial by the plaintiff, as reported by the judge, was as follows: In the year 1804, the defendants associated for the purpose of instituting a bank at Taunton, and subscribed their names in a book, engaging to take the number of shares set against their names respectively. The plaintiff was himself a subscriber. It being necessary to apply to the legislature for a charter, it was agreed, at a meeting of a number of the sub scnbers, to employ an agent, to attend the- legislature for the obtaining such charter. The plaintiff was nominated, and the nomination agreed to by the persons present; and one of the members, acting as secretary, recorded the choice. * The plaintiff was present, and declined the agency, but it was insisted on that he should accept; and i.t was said by the company that he must be paid for it. The plaintiff did attend several sessions of the legislature, upon the business, and endeavoring to obtain the charter; but he did not succeed. It was not disputed that the sum demanded was reasonable, provided the plaintiff was entitled to recover any thing.
    No evidence was given on the part of the defendants; but certain statements, made by their counsel, were admitted to be true, viz.: That there were other subscribers besides the defendants; that several of the defendants were not present at the meeting when thb plaintiff was appointed agent; and that the defendants were not all of them petitioners to the legislature for the charter, .but were all subscribers for the bank, and would have been members of the corporation, had the législature seen fit to grant, the charter. It was also stated, and not denied, that some of the defendants did not know of Mr. Spr'oat’s employment, until after the failure of the application to the legislature; but the subscription was completed, and meetings were held, and their proceedings were recorded before the appointment of Mr. Sproat. Several meetings were called, of those who had associated, to settle with Mr. Sproat, at which meetings there was some dispute about the amount of his charge ; but it was not proved that the defendants were present.
    The judge observed to the jury, that those who associated for the purpose of establishing a bank must have contemplated an application to the legislature; that the attention of some of the associates, or of some person in their behalf, to state their claims before a committee of the General Court, was usual, if not necessary ; that the act of a part of the associates, in employing the plaintiff, might be presumed to be assented to by all who did not expressly dissent; and that, under the foregoing circumstances, there was an implied promise of all to pay those * expenses which should necessarily arise in the prosecutian of their enterprise.
    Under this opinion of the judge, a verdict was taken for the plaintiff by consent; which was to stand, and judgment be rendered thereon, unless the Court should be of opinion that the facts reported did not warrant the verdict, in which case the verdict was to be set aside, and the plaintiff become nonsuit; the objections on the part of the defendants being, that those who were proved to have been present when the agent was appointed were alone liable for his compensation; that there was no express promise, nor any consideration for an implied one; and that the subscription was only an engagement to take shares, and could not be construed into a promise to pay expenses.
    The action was called up at this term, and continued nisi, to be argued at Taunton, next week ; [the Chief Justice observing to the defendant’s counsel, that the only question in the case was, whether, when a number of persons associate for a specific purpose, they are not to be understood as engaging to pay the necessary expenses incurred in endeavors to effect the purpose, according to their respective interests in the association;] when
    
      Tillinghast,
    
    for the defendants, being called on by the Court, insisted that those only of the associates, who were present and
    acted in the appointment of the plaintiff as agent, could be liable to remunerate him for his services. Those who were not then present, might have preferred another person for the object, or might have deemed any agent wholly unnecessary. Here, at most, was nothing more than an implied promise, and the implication can arise only from the act of those associates who employed the plaintiff. The act of association was of a quite different nature, and amounted only to an engagement to take certain shares in the proposed stock. Surely a promise to pay money to the plaintiff cannot be implied from that act. In the cases of subscription to turnpikes, the subscribers have not been * held to pay the assessments necessary to the fulfilment of the project; much less can a mere general association bind the subscribers to perform a promise they not only never made, but which they could not have contemplated. Here only a part of the associates employed the plaintiff; another part might have employed another person; and will it be said that all those who had associated would in such case have been liable to compensate the services of as many agents as each different portion of the associates had seen fit to appoint ?
   Curia.

When the defendants associated for the purpose of obtaining a charter for a bank, to be established in this town, it is to be presumed that they understood the usual course in which charters of that nature are obtained. There must be a petition to the legislature. There must then be some person whose duty it is to exhibit to the legislature the grounds on which the petition rests, and who is able to remove doubts and objections that may arise. Such a person, it may always be supposed, will be entitled to a reasonable compensation for his services, whether he succeeds in his undertaking or not.

Baylies for the plaintiff.

In the case at bar, the. plaintiff was appointed at a regular meeting of the associates. If any of them were not present, they tacitly agreed to be bound by the acts and doings of those who attended; especially as they did not afterwards protest or object against those acts. Particularly the jury might well infer their assent to an act so necessary to the accomplishment of their views, as the appointment of an agent to solicit from the legislature a charter of incorporation ; and from such assent, a moral obligation arises to make a reasonable compensation for the time and labors of the agent so appointed.

As no objection is made to the amount of compensation demanded by the plaintiff, and found by the jury, let judgment be entered according to the verdict, 
      
      
         [Where an agent employed in endeavoring to carry a bill through Parliament for making a railway, sued the chairman of a committee of subscribers to the undertaking for his work and labor and expenses incurred as such agent, and it appeared that the agent himself was a subscriber to the undertaking,— held that the action would not lie. — Holmes vs. Higgins, 2 D. R. 196, S. C. 1 B. C. 74, and see Parkin vs. Fry, 2 C. P. 311, and Moneypenny vs. Hortland, 1 C. P. 352,2 C.& P. 378. — But if a member of a club order goods of a stranger, every member, who either concurs in, or subsequently assents to the order, is liable. — Delauney vs. Strickland, 2 Stark 416.—Ed.]
     