
    The Andover and Medford Turnpike Corporation versus David Hay.
    Where a member of a turnpike corporation declared, at a public meeting of the corporation, that he would spend half his estate, when speaking of the expenses of making the proposed turnpike; it was held that such a declara ion was no evidence of an express promise to pay the assessments on his shares, and that no action lay thereon against him for the assessments.
    This was an action of the case against the defendant, as propn etor of four shares in the turnpike, for not paying sundry assessments, duly made by the directors of the corporation, amounting, in the whole, to the sum of 860 dollars, on the defendant’s four shares. The declaration contained a number of counts, of which the sixth was as follows, viz. * “ And, also, for [ * 108 ] that the said Hay, at, &c., on, &c., in consideration that the plaintiff did then and there permit him to subscribe a certain agreement to become a member of said corporation, and be propri etor of four shares therein, whereby said Hay did, in fact, become a member and proprietor as aforesaid, did then and there promise the said corporation, that he would pay them all assessments which should be legally assessed by said corporation upon the said four shares, provided the same should not exceed one half the value of his estate. Now the plaintiffs aver, that since the time of subscribing said agreement, and making said promise, there have been legally assessed by said corporation, on each share therein, several assessments, amounting, in the whole, to 215 dollars, payable at several periods, all of which have long since elapsed, amounting, in the whole upon the said four shares, to the sum of 860 dollars, of all which said Hay has had due notice. And the plaintiffs aver, that the said sum of 860 dollars is far less than one half the estate of said Hay. Yet, though requested,” &c.
    The action was tried upon the general issue, before the chief justice, at the sittings after the last October term, in this county ; and a verdict found for the plaintiffs by consent of the parties, subject to the opinion of the Court on the following case:—that the said corporation was erected by the statute of 1805, c. 14; that on the ninth day of September, in the same year, the persons named in the statute, in order to obtain associates, caused a subscription paper to be drawn of the tenor following, viz. “ Whereas the legislature of this commonwealth, has, at the last sessions, granted leave for making a tum/pike road, from near the house of John Russel, in Andover, through the west parish in Reading, thence through the town of Stoneham, near the house of David Hay, and from thence 
      
      to the market-place in Medford: We, the subscribers, desirous of having the same completed as soon as possible, agree to take in said road the number of shares set against our names.” That [*104] the defendant then subscribed this * paper, and set against his name two shares; that afterwards, on the ninth of December, in the same year, at a legal meeting of the members of the corporation, the defendant added two shares more against his name; and in open meeting declared, when speaking of the expenses of making said turnpike, that if one thousand dollars was not enough, he would spend two thousand dollars, and if that was not enough, he would spend half his estate; that the said turnpike road had been duly located and made; that the sum of 860 dollars has been duly assessed on the defendant’s four shares aforesaid, being less than half the value of his estate; that after due notice of the premises, the defendant has refused to pay the said assessments, or any part thereof.
    If, upon these facts, so far as the Court should deem them legally admitted in evidence, the Court should be of opinion that the defendant made either of the promises alleged in the plaintiff’s leclaration, then the verdict was to stand; otherwise it was to be set aside, and a general verdict entered for the defendant, and judgment in either case to be rendered accordingly.
    And now Bigeloiu, of counsel for the plaintiffs,
    thought there was a strong distinction between this case and that decided the last term in this county, between the present plaintiffs and Gould, 
       inasmuch as in that case there was no express promise proved. But in the case at bar, the defendant’s declaration, at the meeting in December, was in- effect an absolute promise to pay all assessments that should be made, and brings it within the case of The Worcester Turnpike Corporation vs. Willard. 
       Here was also a sufficient consideration. The enterprise labored, and the defendant was peculiarly interested in its completion, as, by the original incorporation, it was to pass near his house. The corporation were about to expend great sums of money, as they have since done, and the defendant was in consequence entitled, and is yet entitled, to his dividend of the toll on these four shares. No precise form of words is necessary to constitute a legal promise ; but any declaration, show- [ * 105 ] ing the party’s intent to perform, is sufficient. Here * was such a declaration, which must have a construction beyond a mere acknowledgment that his shares might be sold for deficiency of payment, which was already done by the written agreement. As to the objection made at the trial, that parole evidence was not properly admitted in the case, no principle requires that a promise made to an aggregate corporation should be in writing, more than one made to an individual; nor does the common law, nor any statute, give a superiority to a written promise over a verbal one, in a case like the present.
    
      Dana and Richardson, for the defendant,
    contended that, as it had already been decided in Gould’s case, that this written contract would not support an action for the assessments, the plaintiff must rely wholly on the verbal declarations of the defendant in the present case. But these declarations constituted no promise. They ex press, indeed, a great earnestness on the part of the defendant that the turnpike should be completed, and amount, in fact, to no more than a simple assertion, probably intended more to animate his co partners than to have any other operation, that he had rather part, with half his property than that the plan should not be carried into execution.
    But if the words amount to a promise, it was a void promise, as within the statute of frauds, being a promise to pay more than ten pounds upon a contract not to be performed within a year. Neither was there any consideration for the promise. The corporation did not engage to complete the turnpike. It could make no engage ment but in writing, or by its agent legally authorized. The plain tiffs have still a right, under the general statute concerning turnpikes, to sell the defendant’s shares for his delinquency; and this is the only remedy the law has furnished for them. 
    
    
      Ward, in reply.
    Here was clearly an understanding of the parties, that something more was engaged than the bare liability of the shares to be sold. It was understood as an express promise to pay the assessments. The contract being * executory, it [ * 106 ] was not necessary that the corporation should make a promise contemporaneous with that of the defendant. It is sufficient, that they afterwards fulfilled the condition, on their part, to bind the defendant.
    
      
       Vide 6 Mass. Rep. 40.
    
    
      
       5 Mass. Rep. 80.
    
    
      
       2 Cranch’s Rep. 168.—1 Black. Com. 475.
    
   The action stood continued nisi, for advisement, and at the following November term, in Suffolk, the opinion of the Court was delivered by

Parsons, C. J.

The Court have already had before them, in the case of the present plaintiffs vs. Gould, the written instrument, signed by the several proprietors of this turnpike, to entitle them to their respective shares, and to make them members of the corpora tian, who now bring this suit. In that action we were satisfied that, by the terms of that instrument, the corporation could not, by law, maintain an action to recover damages of any proprietor for his delinquency in not paying the assessments on his shares; and that the sale of the shares of the delinquent proprietor was the only legal remedy of the corporation. We have seen no reason to change our opinion, and judgment must be rendered in favor of the defendant, unless the parole evidence of his declaration should, in law, amount to a legal contract to pay his assessments.

It appears, from the report, that the defendant originally subscribed but for two shares ; and that he afterwards, at a meeting of the proprietors, added two more shares to his subscription; and in open meeting, when speaking of the expenses of making the turnpike, declared, that if 1000 dollars was not enough, he would spend 2000 dollars, and if that was not enough, he would spend half of his estate. This declaration, the plaintiffs contend, is evidence of a contract between the defendant and the corporation, amounting to an agreement with them, that, in consideration of his being permitted to subscribe for four shares instead of two, he would pay all the sums assessed on those shares, so that they should not exceed half his estate, which it is agreed they did not.

But we are satisfied that the plaintiffs cannot prevail [ * 107 ] on * this ground. There is no evidence that the defendant made the declaration previous to his additional subscription, or that the declaration was in consequence of any permission to take more shares. The plaintiffs, therefore, fail in proving the consideration. The declaration was not reduced to writing; and if it amounted to a contract, each party must contract. But we cannot admit that a corporation can make a parole contract, unless by the intervention of some agent, or attorney, duly authorized to contract on their part. This declaration was not made to any such agent, or attorney, but in open meeting to all the corporators present. Nor can we admit that a parole declaration, made to the corporators at a corporate meeting by any individual, can amount to a contract between the individual and the corporation.

If there could be any doubt as to the legal effect of this declaration, it might be observed, that it is not to be presumed that the defendant contemplated the taking of his four shares upon terms different from those on which the other proprietors held theirs. And his declaration of the moneys he would spend, rather than the projected turnpike should fail, expresses his motive for doubling his subscription, rather than an intention to make a new contract.

Let the verdict for the plaintiffs be set aside, and a general verdict for the defendant be entered.  