President of the Goshen & Minisink Turnpike Road v. Hurtin

Majority

p. 217

The President, Directors and Company of the Goshen and Minisink Turnpike Road against Hurtin.

ALBANY

August, 1812.

Headnote

A note by which A. promised to pay the president, directors and company of a turnDikcrodd iss dollars,for the capítol of stock the corporation,!** such maimer and propor» lion, and at piace the “J* d*company quire,is a good no°™lss,vithm the„ statute, and may be declared on as note" within ¡mporteami! «deration, unless the contrary appears in the note itself.

An actionlies against a stockholder of a turnpike corporation, at the suit of the corporation, on his promise in writing, to pay for the shares for which he has subscribed, in instalments ; notwithstanding the remedy given in the act, to exact, in rase, of non-payment, a forfeiture of the shares, and all predons payments.

THIS was an action of assumpsit, on a promissory note made by thethe court, without argument. THIS was an action of assumpsit, on a promissory note made by the defendant, dated the 1st of May, 1800, by which he “ pro-raised to pay to the plaintiffs 125 dollars, for five shares of the capital stock of the said corporation, in such manner and propora a jl a lion, and at such time and place, as the said plaintiffs should, from time to time, require.” There was a general demurrer to the declaration, and joinder in demurrer. The cause was submitted to °

The note set forth in the declaration is a good promissory note within the statute, though it has not the words bearer, or order,” and may be declared upon as such. This is the established English law, (6 Term Rep. 123. 2 Lord Raym. 1545.) and the same rule was recognised, by this court, in the ease of Downing v. Backenstoes; ( 3 Caines' Rep. 137 .) for ou r statute relative to promissory notes, is the same, in substance, as the statute of 3 and 4 Anne. The note was payable in money, and payable absolutely, and not depending on any contingency, It was, in effect, payable on demand, and it was not requisite that a consideration should be averred or appear upon the face of the note, for every note within the statute, unless there be something

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in the note itself to the contrary, imports a consideration; and that presumption stands good until the defendant destroys it. There is, however, a consideration appearing on the face of the note in flyg case? for the promise to pay the 125 dollars, was “ for five shares of the capital stock of the corporationand it is to be intended that the defendant had duly become a stockholder to that amount.

But the question which the parties undoubtedly had principally in view, in this case, is, whether an action will lie at all on a promise by a turnpike stockholder to pay his instalments ; and whether the remedy given to the company by the statute, to exact the penalty of a forfeiture of the shares, and of all previous payments, be not the only remedy. The decision of the court of errors, by which the decision of this court, in the case of The Union Turnpike Company v. Jenkins, ( 1 Caines’ Rep. 381 .) was reversed, may have given countenance to that opinion, but we apprehend that upon a careful examination of that case, the reversal is to be placed on other grounds, and that the reasoning and decision of the court, upon the principal point, remains good. In that case, the condition upon which Jenkins was to become a member of the company, viz. paying 10 dollars, had not been performed, and the corporation was understood not to have been in esse, at the time of the making of the promise by Jenkins. It is to be presumed that the judgment of reversal went upon that ground; and that was the ground taken by the Chancellor, who was then the principal law member of that court. We are the more confirmed in this view of that case, as actions upon such promises are sustained in the courts in Massachusetts and Pennsylvania, and upon principles which we deem conclusive. ( 5 Tyng, 80 . 2 Hall’s Law Journal, 231. 1 Binney, 70.)

Judgment for the plaintiffs,