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February

Rotland, Wallingford manufacturing company. But in no other part 1842. Ys of the deed are the defendants named as such agents or

trustees. Roberts

The defendants introduced in evidence a written agreeButton et al.

inent, dated the seventh day of February, 1837, signed by the plaintiff and defendants, and by more than twenty other persons. By this agreement the parties thereto formed themselves into a company, under the name of the Wallingford manufacturing company, for the purpose of manufacturing and selling woolen and cotton cloths, or either, and for the transaction of all such business as is usually done by manufacturing companies. This agreement provided for the appointment of trustees or agents to transact the business of said company and authorized such trustees to purchase of the plaintiff, and other persons therein named, certain lands and water privileges owned by them, and buildings thereon, " on the terms they have offered to sell to the company,and to take conveyances thereof to themselves in trust for the company, and to erect a factory, &c. And a further provision was made, that all business transacted by such trustees or agents, for said company, should be in the name of the company, for the mutual benefit of the members thereof. And, to raise funds to enable such trustees to proceed with the business, the sum of $15,150, was, on the day of the date of said agreement, subscribed by the signers thereof, as stock, and the plaintiff's subscription was one thousand dollars. The subscription was to be paid to the trustees in installments, at such times as they should appoint and in such sums as they should assess, the assessments to be made equal, in proportion to the sums subscribed ; and if any subscriber neglected to pay his assessment, thirty days notice thereof being given, he thereby forfeited his stock to the company. The agreement further provided that the trustees should, in no case, make any contract that should be binding on the subscribers as individuals, or in any way oblige any one of them to pay more than the sum originally subscribed by him, and in case the trustees should make any such contract, then they were to pay back to each member of the company such sum as he might be compelled to pay on such contract exceeding his subscription. The profits and losses of the company were to be borne by the subscribers in pro

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portion to their respective interests and capital stock. The Rutland, agreement also contained a provision for obtaining an act1842. from the legislature, incorporating said company, as soon as Roberts possible, and when such act of incorporation should be

Button et al. obtained, the trustees were to immediately transfer to such corporation all the real and personal estate of the company, including the capital stock, and the subscribers to said agreement were thereby to become owners in said corporation of the same proportional interest that they owned in the company formed by said agreement.

It appeared that the plaintiff's offer to sell his land, water privilege, &c., referred to in said agreemen!, was made in writing, and was, in substance, as follows :

"I will sell my clothiers' works and land, carding machine, building, privilege, &c., for one thousand dollars, retaining the use of the works until the first day of January next, and then give unlimited possession; the company to have the privilege of digging the aqueduct, and what land is necessary. Mr. Post has the right of an aqueduct for his 'tan works for ten years from 1835. I include with the works the kettles, tools, &c. The property to be considered as so much stock paid in advance, and interest to commence on the first of January, 1838.

After the execution of the written agreement by the members of said company and on the same day, viz., February 7, 1837, at a meeting of said company, the defendants were appointed trustees or agents of said company, to hold their offices until the annual meeting of the company in January, 1838, and until others were appointed, and they accepted the trust.

On the eleventh of February, 1837, at a meeting of said company, a resolution passed unanimously instructing the trustees to proceed with the business for which the company had been formed as soon as they, in their judgment, should think the capital stock subscribed sufficient to warrant them in so doing.

It further appeared, from the records of said company, that assessments were made, from time to time, by said trustees, on the stock, or subscriptions, of the members of the company, and that the assessments upon the plaintiff's subscription amounted to $550.00.

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Roberts

Rutland, An act of incorporation was obtained from the legislature

Y at the session thereof held in 1839, under which the com

pany organized, and the trustees, on the 20th of February,

1839, conveyed all the property and estate of the company Button et al.

formed by said written agreement, to said corporation, in accordance with the provisions made, relating thereto, in and by said written agreement.

Upon this evidence, the county court decided that the plaintiff could not maintain this action, and thereupon the plaintiff became nonsuit, with leave to set aside the nonsuit if the supreme court should be of the opinion that the county court erred in their decision.

D. Roberts, Jun. and S. Foote for plaintiff, contended that the defendants made themselves liable by attaching their names to the note in question, and that, to rebut this, it devolved upon the defendants to show, affirmatively, that the note was the note of the Wallingford manufacturing company; that there was, at the time, such a company in being ; that the defendants were its agents, with power to bind the company, and pursued their authority, and that the credit was given to the company and not to the defendants, and, in support of the point that the defendants were personally liable, they cited the following authorities ;-Mott v. Hicks, 1 Cowen, 513, 536; White v. Skinner, 13 Johns. 307; Barry v. Rush, 1 Term R. 691 ; Sumner v. Williams, 8 Mass. 161; Thatcher v. Dinsmore, 5 Mass. 299; Foster v. Fuller, 6 Mass. 58; Horsley v. Bell et al., Ambler, 769, 772; 1 Bro. C. R. 101, in note; Hard. 205 ; Paley's Agency, 295, 296, note o; Cullen v. Duke of Queensbury et al., 1 Bro. C. R. 101, cited in Ives v. Hulett, 12 Vt. R. 326; Eaton et al. v. Bell, 5 Barn. & Ald. 27, (7 E. C. L. 13, Lanchester v. Tucker, 1 Bing. 201; Same v. Freron, 2 Bing. 361; 1 Saund. Pl. & Ev. 74; Fox v. Drake, 8 Cow. 191; Combe's case, 9 Coke, 76, 77; Anon. Moore, 70, pl. 191 ; D'Abridgcourt v. Ashley, Moore, 818;

Talbot v. Godbolt, Yelv. 137, 147; Bacon v. Dubarry, 1
Salk. 70; Clayhill v. Fitzgerald, 1 Wils. 28, 58; White v.
Cuyler, 6 Term R. 176; Wilks v. Backs, 2 East, 142;
Duval v. Craig, 2 Wheat. 45, 56, n. a; Stone v. Wood, 7
Cowen, 453 ; Spencer v. Field, 10 Wend. 87; Fowler v.

February,

Roberts

Shearer, 7 Mass. 14; Stackpole v. Arnold. 11 Mass. 27; RUTLAND,
Elwell v. Shaw, 16 Mass. 42; Ham. Parties, 60; Bayl. on “1842.
Bills, 68–9, n. 46; Appleton v. Binks, 5 East, 148; Cass
v. Ruddle, 2 Vern. 280, cited in Paley on Agency, 300, n. f; .

Button et al. Burrell v. Jones, 3 Barn. & Ald. 47; (5 E. C. L. 223 ;) Norton v. Herron, 1 Carr. & P. 648; (11. E. C. L. 511 ;) Kennedy v. Gouveia, 3 D. & R. 503; (16 E. C. L. 174; Hills v. Bannister, 8 Cowen, 31; Tippetts v. Walker, 4 Mass. 595 ; New England Ins. Co. v. DeWolf, 8 Pick. 56; Holmes v. Dana, 12 Mass, 190; Trustees, &c. v. Allen, 14 Id. 172; Terry v. Fargo, 10 Johns. R. 114; Sanford v. Mickles et al. 4 Johns. 224; Kilgour v. Finlyson, 1 H. Bl. 155 ; Abel v. Sutton, 3 Esp. R. 108; Chitty on Bills, 50; Gardner v. Baillie, 6 Term, 591; Hogg v. Smith, 1 Taunt. 347, and Hay v. Goldsmid, there cited ; Chitty on Bills, 37; Rossiter v. Rossiter, 8 Wend. 494 ; Emerson v. Providence Hat Man. Co. 12 Mass. 237; 4 Id. 595 ; 11 Id. 27; 12 Id. 173 ; 9 Johns. 334; 19 Id. 60; 15 Id. 44; 3 Johns. Cas. 70; 8 Cowen, 31; 7 Wend. 315; 9 Id. 68; 10 Id. 87, 271; 11 Id. 477; 7 Id. 207; 5 E.C. L. 223; 25 Id. 135; 2 Kent's Com. 632; 2 Strange, 955; 5 M. & S. 345; 9 Serg. & Rawle, 212; 2 Pick. 221; 17 Wend. 40; 2 Johns. 48.

And they further contended that where an agent has a known responsible principal, whom he has authority to bind, and all the formal acts are done, in the manner which the law makes necessary to bind the principal, there may yet remain a question of fact for the jury, under proper directions from the court,—a question of intent;-to whom was the credit given ? and that the county court erred on this point, and in support of this rule, they cited Rathbone v. Budlong, 15 Johos. 1 ; Gill v. Brown, 12 Id. 385; Walker v. Swartwout, Id. 446; and Eaton v. Bell, and Rossiter v. Rossiter, before cited.

To the point that a partner might sue his copartners, at law, upon an express promise made between them, they cited 2 Conn. R. 425; 3 Day 506; 2 Caines, 293; 14 Johns. 318; 12 Id. 401; 17 Id. 80; 15 Id. 159; 9 Mass. 304; 12 Id. 34; 3 Id. 364; 1 East, 20.

E. N. Briggs, for defendants.
I. The note declared upon in the plaintiff's declaration is

1842.

RUTLAND, virtually a contract, instead of an ordinary promissory note. February,

1. The contract specifies the character in which the deRoberts

fendants contract or promise, "We the agents of the Wal

lingford Manufacturing Company promise to pay,' signed Button et al.

by defendants, Agents or trustees of the W. M. Co.' 2. The defendants make the payment subject to assessments to be made upon the capital stock of the company, upon which assessments the plaintiff was liable for his share of the contributions, from which payment was to be made.

II. We contend, from the facts in the case, first, that upon the face of the note or contract, the defendants are not liable. All contracts are to have a reasonable construction, and the form of expression made use of is not so material as the intention of the parties, when that can be ascertained from the contract.

In cases of deeds and covenants, the agent should use the name of his principal, but not so in simple contracts. In this case the defendants did not profess to act as principals. The language of the contract is similar to that used in Rathbone v. Budlong, 15 Johns. 1, where the note was • I promise for the Susquehannah C. and W.M. Co.' 'S. Budlong, agent.' Cited in Hammond on agency, 322. In Mann v. Chandler, 9 Mass. 335, the note was · I, the treasurer of the D.T. Corporation, promise to pay S. M. or bearer,' &c., signed “G. L. Chandler, treasurer.' Dawes v. Jackson, 9 Mass. 490. Arlington v. Hinds, Chipman's R. 431. Hodgson v. Dexter, 1 Cranch, 345. Mackbeath v. Haldimand, 1 Term R. 172. Proctor v. Webber, 1 D. Chipman's R. 373.

It is an important consideration to ascertain whether the agent, by his contract, binds his principal.

When a man is known to act as agent, and his principal is known, the rule is that the agent, though the person immediately making the contract, is not subject to personal responsibility. Hammond on Agency, 324.

The plaintiff was aware of the character in which the defendants acted. N. E. In. Co. v. De Wolf, 8 Pick. R. 56. In this case the form was not regarded, but the intention of the parties. In Mott v. Hicks, 1 Cowen, 513, it is ruled that an agent, having authority, does not bind himself. If the name of the party to be charged appear in the contract, the

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