
    * Essex Turnpike Corporation versus Benajah Collins.
    No action lies for a turnpike corporation, for the assessments, against one who had subscribed a promise to take shares and to pay the assessments thereon, after a part of the turnpike was completed, no act of the corporation either previously authorizing, or afterwards ratifying, his subscription.
    The action was assumpsit. The declaration, as finally settled by consent of parties at the trial, contained a count for money laid out and expended, and another money count, and also a special count, in which is set forth, —that the plaintiffs, before the last of March, 1807, had, at great expense, laid out and made that part of a turnpike road, beginning at the line of New Hampshire and coming to the Haverhill post road near the south meeting house in Andover, &c., pursuant to their act of incorporation; and that afterwards divers other persons than the original members, and among them the said Collins, severally associated with a view to become members themselves, and to procure others to become members of the said corporation, to the end that the whole of the said turnpike road described in said act of incorporation should be completed, ■by laying out and making the residue thereof, pursuant to said act, viz., the Salem road, to proceed from Andover bridge, in as straight a line as should be found practicable, to the store of Capt. Nathan Felton, in Danvers; and that the property of the said corporation had not been limited to a certain number of shares, but subscription papers were open and publicly offered to all persons inclined, &c., and the amount or proportion of all the expense of the whole of the said road, to which a single share might be liable, was then uncertain, depending upon the number of shares, including those of the original members which might thereafter be subscribed for and taken, &c. Of all which the said Collins, on the day and year last mentioned, had notice; and that in consideration of the premises, and that at his special instance and request, he was permitted to take and subscribe for four shares of the property of the said corporation, and to become a member thereof, &c., he, the said Collins, then and there faithfully undertook and promised the said corporation that he would take- and become interested in the said four shares of the capital or joint stock of the said corporation, * and would upon request pay such proportion of all the expense of the whole of said turnpike road as the said four shares, by him taken and subscribed for as aforesaid, should bear to the whole number of shares which had been and should thereafter be taken and subscribed for, of the capital or joint stock of the said corporation;—provided the branch of the said turnpike road, that is, the Salem road aforesaid, should be continued from Andover Bridge to Felton’s corner, in as direct a line as the nature of the ground would admit, agreeably to the said act of incorporation ; with averments that the said Collins had been afterwards offered certificates of his said shares; that the whole number of shares amount to five hundred and forty-two, including the shares of the original members; that the said Salem road had been laid out and made, &c.; that all the expenses of the whole of said road amounted to sixty-nine thousand four hundred and seventy-eight dollars and twelve cents ; and that, relying upon the promise of the said Collins, the plaintiffs had actually expended a great sum of money, viz., five hundred and twelve dollars and twenty-two cents, as the proportion of all the expenses of the said road appertaining to the said four shares ; of which the said Collins had had notice ; yet, though often requested, he had refused to pay, &c.
    At a trial before Sewall, J., upon the general issue, which was had at the sittings here after the last November term, the plaintiffs submitted to a nonsuit, which was entered, subject to the opinion of the Court upon the facts proved and reported as follows by the judge who sat at the trial.
    The supposed promise and undertaking of the defendant is expressed in a certain subscription paper, proved to have been signed by him and others in the months of March and April, 1807, in these words: — “We, the undernamed subscribers, severally agree to take and pay our proportion of the number of shares in the Essex turnpike affixed to our respective names, provided the branch of said * turnpike road be continued from Andover Bridge to Felton’s Corner, in as direct a line as the nature of the ground will admit, agreeably to the act of incorporation.”
    The writing was without date; but a Mr. Foster, sworn for the plaintiffs, testified that he carried the subscription paper to the defendant early in the spring of 1807, when he subscribed his name for two shares, and again in the month of April of the same year, when he subscribed anew, or altered his first subscription, and became a subscriber for four shares; and that this took place before the meeting of the corporation holden at Salem, 21st of April, 1807. — The same witness, being cross-examined for the defendant, testified that the subscription was recommended to the defendant by the witness, as a matter of public utility, and an undertaking for the purpose of making and opening the Essex branch of the said turnpike; and the witness also informed the defendant that the other part of the said turnpike was already made and completed, and that if he came in, he would be on the footing of an original subscriber, and that, in the opinion and estimate of the witness, the whole expense of the said turnpike would be about 52,000 dollars, and would not amount to 100 dollars per share; but he made no statement, as the witness recollected, of the amount of assessments to which four shares in the said corporation were then liable. — Samuel Farrar, Esq., treasurer of the said corporation, testified that it had not been usual to charge any person with assessments until his acceptance of a certificate for his share or shares subscribed ; that subscribers, by the second subscription paper aforesaid, had been required to pay the two first assessments of ten dollars each upon every share subscribed immediately upon their receiving certificates ; that on the 22d of April, 1807, he made application to the defendant for the amount due upon the four shares subscribed by him for the two first assessments, and he declined paying until he had his certificate; and in three or four weeks afterwards, upon a second application by the witness, when he carried with him * a certificate of four shares for the defendant, and so informed him, he still declined paying, and then said he was willing to take shares to the amount of 400 dollars, which he had understood to be the extent of his engagement, but was not willing to take four shares with the risk of paying all the assessments.
    The act of incorporation and (subject to an exception taken for the defendant to the want of evidence by the certificate of the magistrate before whom the clerk of the said proprietors had been sworn and qualified for that office) the records of the said corporation, commencing with their first meeting, May 14th, 1805, and containing the by-laws then agreed upon ; also the books of their said treasurer admitted in evidence for the plaintiffs, were to be considered as in the judge’s report, to be referred to, if there should be occasion.
    From the said records (if admissible) it would appear that the proprietors, parties to the original subscription for the said turnpike road, (also in evidence and in the case,) at their said first meeting, came to a choice of directors, and by a by-law or vote gave them authority to assess upon the several proprietors the expense of laying out and completing the said turnpike road, and to notify said assessments, and to sell the shares of delinquent proprietors neglecting to páy &c.; and that ten assessments, the first on the 8th of July, 1805, the last on the 18th of October, 1806, and the others at several times in the interval between those days, amounting in the whole to the sum of 150 dollars per share, were made by the directors for the time being of the said corporation, at meetings regularly holden by them.
    It was also proved that the regular notice by advertisements according to the proprietors’ vote had been given of the said assessments. From the same records it further appeared that at the meeting of the said corporation holden at Salem on the 21st of April, 1807, it was agreed and voted to lay out and compíete the said Salem branch of the said * turnpike, according to the act of incorporation, and two additional directors were then chosen ; and by parole evidence it was proved that several persons, parties to the last subscription paper, but not the defendant, were present with the other proprietors at that meeting.
    From the books of the treasurer of the said corporation it appeared that the members of the said corporation, proprietors by the said original subscription paper, were charged with the said assessments at a certain number of dollars upon each and every share undertaken by them respectively ; and that such of the subscribers in the second subscription paper as had accepted certificates of their shares were charged in the like manner with the said assessments previous to their subscribing, or previous to any vote of the corporation to lay out and make the Salem branch of the said turnpike.
    There was no evidence, from the said records or otherwise, of any authority to the directors, or to any committee, or other person employed in behalf of the corporation, to engage or agree with subscribers upon any other footing or terms of payment than those voted, agreed, and established by the original subscribers and mem bers of the corporation for themselves, viz., the authority given the directors to sell the shares of delinquent proprietors.
    The action was continued upon the plaintiffs’ motion to set aside the nonsuit, and was argued at this term by Prescott and Putnam. for the plaintiffs, and Dane and Story for the defendant.
    
      For the plaintiffs,
    
    it was. contended, that this was a lawful, fair, and binding contract on the part of the defendant. He, with others in Salem and its vicinity, were desirous that the branch of the turnpike leading towards Salem should be completed. They knew that for this end a new subscription was necessary, and in consideration of their subscribing for this part of the undertaking, which was not expected to afford an adequate remuneration, they were let in to a proportionate share of the other branch, which was * expected to be more productive. This was in itself a sufficient consideration. It may be added that the benefit contemplated to accrue individually to the new subscribers from this new direction of the turnpike formed another valuable consideration.
    It is well known that in this country enterprises of this description have not been productive of profit to those who have engaged in them; nor is this generally a primary object of consideration with the subscribers. They are well aware that the community is benefited by them, and they agree to take a share of the burden. Here, then, was an express promise, upon a valuable consideration, not only to become a proprietor, but to pay all lawful assessments. And this Court has decided, in the case of The Worcester Turnpike vs. Willard, that such a promise is binding, and will support an action for the assessments.  The same point was recognized in Gilmore vs. Pope. 
      
    
    If it be objected, that the obligation was not mutual or reciprocal, it may be answered, that whether Foster was authorized in the case or not. the corporation actually completed the Salem branch of the turnpike in consequence of the subscription of the defendant and others, and their treasurer tendered him the certificates of the shares he had subscribed for, thus completely adopting and ratifying Foster’s acts.
    
      For the defendant,
    
    it was said that there was no evidence of any contract on the part of the corporation, and without this there was no mutuality of consideration, which is necessary to every contract. Foster had no power to bind the corporation, and as to the after completion of the turnpike, it was no more than they were bound to by their charter. The defendant had no means of compelling them to complete the turnpike, or even to admit him as a member of the corporation.  ■ Further, from the very terms of the agreement in this case, the engagement was not to the corporation, but of the subscribers to each other. The case of the Worcester Turnpike vs. Willard was very different * from this.
    There the shares were taken, and the promise was express to pay all assessments. So was the case also in Gilmore vs. Pope.. In both those cases also the consideration was that the turnpike should be carried in a particular direction, by which it may be presumed the subscribers contemplated a personal benefit to themselves ; and in both cases the number of shares was limited and fixed. Here the number was unlimited, and, by thus opening new shares as subscribers offered, a fraud was committed on the original members.
    
      
       5 Mass. Rep. 80.
    
    
      
       5 Mass. Rep. 491.
    
    
      
       3 D. & E. 653, Cook vs. Oxley.
      
    
   Sedgwick, J.

delivered the opinion of the Court.

By the act incorporating the plaintiffs, the purpose intended was to make a turnpike in one direction communicating with the town of Boston, and in another with the town of Salem. After that part of the road which communicated with Boston had been completed, a Mr. Foster— whether a member of the corporation or not does not appear, nor is it material in the view which I have taken of the subject — procured from the defendant and others a subscription of their names to the paper mentioned in the judge’s report; by which they agreed to take and pay their proportion of the number of shares affixed to their respective names. This was in the month of April, 1807. Afterwards, on the 27th of the same month, the corporation, at a legal meeting, voted to lay out and complete the Salem, branch of the turnpike. And it appeared by parole evidence, that several of the persons who signed the subscription paper, which has been mentioned, were present at that meeting; but the defendant was not with them. And the treasurer of the corporation after wards made out, and offered to the defendant certificates of owner ship of the four shares for which he had subscribed. —The question is, whether the defendant is liable, in this action, upon that subscription.

It is certain, that to every valid contract there must be parties Aggregate corporations cannot contract without vote, because there is no other way, in which they can express * their assent. Such corporations may contract by their agents; but such agents must have authority given them for that purpose. In this case, no such authority was given to Mr Foster. And admitting that the corporation might be bound by subsequent assent, there is no evidence that any such assent was given. It does not even appear that this subscription paper was ever communicated to the corporation. It is true, that soon after the subscription was made by the defendant, the corporation voted to lay out and make 'the Salem branch of the turnpike; but this they were previously obliged to do by the act of incorporation. And it is impossible to consider the mere attendance of some of the subscribers at a meeting of the corporation evidence of a contract on its part; that fact being no evidence of an act of the corporation. And as little avail can the making out certificates of ownership to the defendant by the treasurer of the corporation, have; because there is no evidence that he had any authority for that purpose.

Reverse this case, and suppose an action brought by the defendant against the corporation for withholding certificates of ownership ; there could be no pretence for supporting it on the evidence which was offered against him at the trial. There is no act by which the corporation was bound to admit him as a member ; and if there was not, there was no sufficient consideration to bind him. The nonsuit therefore cannot be taken off.

Costs for the defendant  