Pike v. Bangor & C.S.L.R. Co.

• Decision Date: 25 October 1878
• Citation: 68 Me. 445
• Parties: EDWARD C. PIKE v. BANGOR & CALAIS SHORE LINE RAILROAD COMPANY, and CITY OF ELLSWORTH, trustee.
• Court: Maine Supreme Court

68 Me. 445

EDWARD C. PIKE v. BANGOR & CALAIS SHORE LINE RAILROAD COMPANY, and CITY OF ELLSWORTH, trustee.

Supreme Judicial Court of Maine.

October 25, 1878

ON REPORT.

ASSUMPSIT for money and labor, to which no defense was made the contention being as to the liability of the alleged trustee.

J M. Livermore, for the plaintiff.

E. Hale & L. A. Emery, for the alleged trustee.

LIBBEY J.

The plaintiff claims to charge the trustee for sums due from it to the principal defendant for two assessments on the capital stock of the defendant corporation, subscribed for by the trustee. The first assessment was made by the directors of the corporation, September 19, 1876, and was for five per cent on the stock payable on or before October 15, 1876, and five per cent payable on or before December 15, 1876. The second assessment was made June 28, 1877, and was for $1.25 per share, amounting to $1,541.25 on the shares subscribed for by the trustee. The trustee made its subscription for 1233 shares of the stock, under date of October 26, 1876.

The first assessment created no liability against the trustee for which it can be charged, because it was made before it subscribed for the stock, and therefore was not made on the stock subscribed for by it.

The second assessment was made by virtue of a resolve passed at a meeting of the corporation, held June 6, 1877, which directed the directors to " obtain all bills for past expenditures, audit the same, and make an assessment upon the towns owning stock, pro rata, for the payment of such bills, re-imbursing, without interest, any towns the amount already paid by them, which shall exceed their proportion of the expenditures aforesaid." By the charter of the corporation, Private and Special Laws of 1872, c. 140, § 3, the directors are authorized to make equal assessments from time to time on all of the shares in said corporation, etc. This assessment was made on the towns and cities only which had subscribed for stock, and not on the stock held by persons, though by the record of the meeting at which it was ordered it appears that thirty-one of such stockholders were present. Such an assessment was unauthorized by the charter. It was not on " all" of the shares in said corporation. But by the record of the assessment it appears to have been made by Samuel N. Campbell, committee. If Mr. Campbell was appointed by the directors a committee to audit the claims and make the assessment directed by the corporation, in so doing they exceeded their authority. The action of Mr. Campbell does not appear to have been ratified by them. For this reason the assessment is void. Monmouth Mut. F. Ins. Co. v. Lowell, 59 Me. 504.

Again it is objected, on the part of the trustee, that both assessments are void, because it does not appear that the capital stock of the corporation had been fixed. By § 2 of the charter, " the capital stock of said company shall consist of not less than one thousand shares of one hundred dollars each, par value; but the...