Andover & Medford Turnpike Corp. v. 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.