defendant, without returning to him the order and his check. Calais
V. Whidden, 64—249.
51. The plaintiff, a town, by the terms of an agreement between it
and the defendant, were to issue certain bonds to a railroad company
and the company to issue certain stock to the town, and in case the
company should fail to build the road to a certain place within a spec-
ified time, the defendant agreed to refund the bonds to the town, in
which case the town was to deliver the stock to the defendant. The
road was not built according to the contract; the defendant did not
refund the bonds, and the town brought suit on the contract. ITeld,
that it might do so without first offering to deliver the stock. Oaji-
ton V. Smith, 65—203.
52. After the settlement of a demand for a' sum less than the full
amount due, before an action can be maintained on the original cause
of action, on the ground of fraud on the part of the debtor, the cred-
itor must rescind the contract of settlement, and tender to the debtor
whatever sum he had paid. Potter v. Monmouth Insurance Co., 68 —
440.
5.3. Whejt. If a party would rescind a contract on the ground
of fraud, he must do so within a reasonable time. Houghton v. Nash,
64—477.
54. What Constitutes. If a creditor takes an order from his
debtor, and agrees to credit it on the debt under certain conditions,
but afterwards hands it back to the debtor, and refuses to carry out
the agreement, the fact that the debtor, not assenting to recission of
the agreement, takes back the order and carries it to an attorney for
collection, or for advice, does not constitute a recission. Wdite v.
Vose, 62—184.
See Assumpsit.
Lane v. Smith, 68 — 178.
IV. CONSTRUCTION.
(a) When sep abate papers abe to be constbued togethee.
(b) Mutual, conditional, and independent stipulation.
(c) Paeticulab ageeements.
(a) When separate papers are to be construed together.
54. G. acquired title to a specific part of a schooner incumbered by
CONTKACT. 119
an antecedent mortgage, and conveyed it, together with another ves-
sel, to the defendant, as security for his indebtedness to the defend-
ant, and to a firm of which the defendant was a member. Subse-
quently, and at G.'s request, the defendant conveyed the schooners
thus held by him to the plaintiffs (to whom, also, G. was indebted),
and at the same time, the plaintiffs agreed in writing with the defend-
ant, that when they disposed of the schooners, they would satisfy the
demands held against the same by the defendant and his firm, and
place the balance to the credit of G. Subsequently, the plaintiffs
paid the outstanding mortgage, and then sold the vessel for more than
the amount paid on the mortgage. Held, (1) that the bill of sale
of the vessels and the written contract must be regarded as one trans-
action, and be construed together; and (2) that an action cannot
be maintained on the covenant of warranty in the bill of sale. Rich-
ards Y .. Stephenson, bl — 51.
55. Wherever we find the name of a party to a contract, though
he may choose to put it there by himself, as attorney, we need look
no further than the instrument itself for his authority, and the extent
of his liability. Mattocks v. Young, 66 — 459.
56. A large number of the creditors of the same debtor authorized
certain of their number by a written power of attorney, to sell, as-
sign, or otherwise adjust their claims, and attached to their signatures
the amount of their respective claims. By virtue of this authority,
the agents therein named executed a deed covenanting to transfer
and assign their claims to a person named upon payment of a certain
per centage. In the power of attorney, the amount of the debt of
one of the creditors was under stated. Held, that so far as the cred-
itors were concerned, who executed the deed, their rights were to be
determined by the deed itself, and could not be interpreted by refer-
ence to the power of attorney. lb.
57. The two papers are not to be considered as parts of the same
transaction in such sense as to require them to be construed as one
instrument. One is a step toward the end, the other is the end itself.
lb.
See Knight v. Byer, 57 — 174.
MitcJiell V. Smith, 67—338.
(b) Mutual, conditional, and independent stipulations.
58. A contract between the plaintiff and C., stipulated that the
latter would, on or before a specified date, adjust and settle all mutual
accounts between them, and that in default thereof the plaintiff
might cause an adjustment of the accounts to be made by a person
named. Performance of this contract was guaranteed by "the defend-
ant. Held, that the agreement to adjust and settle was an independ-
ent stipulation, the breach of which rendered the defendant liable to
pay what was due from C, and that it was optional with the plaintiff
whether or not he would have the amount ascertained by the arbitra-
tor. Adams v. Macfarlane, 65 — 143.
59. If one gives a note payable when he shall sell the place he lives
on, the debt is absolute, and it is the duty of the maker to sell the
place within a reasonable time that he may pay the debt. He can
not by suffering judgment and execution against him, and a levy
upon the place, claim to be relieved from his debt on the ground that
120 CONTEACT.
it is out of his power to perform his contract. Grooker v. Holmes, 65
—195.
60. When a subscription to the capital stock of a railroad company-
is upon condition that the "road be located through the town of B.,
satisfactory to the selectmen of said town," a location through the
town satisfactory to the selectmen is a condition precedent to the
right of the company to enforce the subscription. Buchsport dt
Jiangor H. R. Co. v. Brewer, 67 — 295.
See Condition.
Sale, 66.
Trustee Peocess, 13.
(c) Particular agreements.
61. The plaintiffs contracted in writing to out and haul from the
"Dartmouth College Grant," and drive and deliver into the defend-
ant's boom, "in the spring of 1867, from three to five million feet of
spruce logs," of a specified description, "and all the pine timber they
can obtain from said grant." In the same instrument, the defendants
agree to pay the plaintiffs seven dollars per M. for the spruce, and
eleven dollars per M. for the pine, "when scaled and delivered in said
boom ; " "to advance from time to time such sums, not exceeding
one-half the amount to be paid for the logs, as the plaintiffs may need
in the prosecution of the work ; " and "in case any logs cut on said
grant are not delivered in their boom as aforesaid," the defendants
"are to retain in their hands, at the rate of one dollar per M. on
account of said logs." In an action to recover the price stipulated,
held, (1) that the plaintiffs were entitled to recover the full prices for
all lumber cut and delivered by them into the defendant's boom in the
driving season of 1867 ; and (2) the same prices, less one dollar per
M. for all timber cut, hauled, and properly landed by them, but which
remained uudrivcn, without any want of reasonable diligence on their
jjart. Sanderson v. Brown, 57 — 308.
62. A writing acknowledging that the subscriber had received the
promissory note of another "for five shares of stock in the M. T. Co.,
and certificates of stock are to issue to" the maker of the note for the
same, when ready for issue, — is not a contract for the future sale of
the shares, but a recognition that the shares themselves were the con-
sideration of the note. Hope Iron Works v. Holden, 58—146.
63. A railroad sub-contractor, by his written agreement with the
contractor, agreed "to construct and complete all the grading, earth,
rock, and masonry for the road-bed of the Somerset railroad, from
the third station north of Otis Hill road-crossing, to the Kennebec
river ; " "that if any work shall be done by said sub-contractor which
is not included in this contract, the price and value of said work shall
be determined by the chief engineer ; " "that the said work, during its
progress, shall be subject to the supervision and inspection of said
engineer, and shall be made to conform, in every respect, to his satis-
faction ; " "that with a view of preventing all disputes and misunder-
standings, and for the speedy adjustment of such as may occur, the
chief engineer shall determine the amount or quantity of the several
kinds of work herein contracted to be done, and shall decide every
question which can or may arise relating to the execution of work
under this contract, on the part of the sub-contractor, and his decision
CONTEACT. 121
shall be final." The sub-contractor did work on the foundation of the
bridge across the Kennebec liver, which was accepted, and its value
estimated by the chief engineer. Held, that the work on the bridge
foundation was done under the contract. Rogers v. JSogan, 58 — 305.
64. And an assignment of such a contract by the sub-contractor,
and "all the rights and privileges therein mentioned," except the ten
per cent due "on all earth, excavations of earth, and masonry and
stone delivered on the road to the first of March," carries the value of
the work on the foundation of the bridge as estimated by the chief
engineer. lb.
65. A naked verbal promise to return, in good order and at a spec-
ified time, a thing hired, does not, as matter of law, import a contract
on the part of the hirer to insure it against loss occurring without his
fault. Jenkins v. Village Hank, 58 — 275.
66. On Nov. 13, 1869, A. contracted with the plaintiff bridge com-
pany to furnish materials and build two granite piers of Hallowell
granite, according to certain specifications, for fourteen dollars per
cubic yard, five hundred dollars to be paid down, and five hundred
dollars monthly, until the piers shall be completed and accepted, when
the balance is to be paid, and all to be completed before the following
spring freshets. Thereupon A. procured the blocks of granite, hauled
them upon land leased by him near the contemplated location of the
bridge, and commenced dressing and fashioning them. The plaintiffs
duly paid the first four installments, and before the next one became
due, and before any of the granite was placed in the piers, it was
attached by A.'s creditor. In replevin by the bridge company,
held, that the plaintiffs acquired no title by virtue of the contract and
the payments made, or any rights or interest in the granite as against
the attaching creditor. Fairfield B. Co. v. Nye, 60 — 372.
67. By written agreement the defendants were to repair and use
the plaintiff's canal, to collect and account for the tolls of all mer-
chandise, including their own, and after deducting all costs for repair-
ing and running the canal, were to pay the net jsrofits to the owner.
A subsequent clause provided that the defendants should pay over
the whole of the net i-eceipts after deducting expenditures in making
repairs. Held, that, considering the subject matter, its extent and
liability to need repairs, and the object in view, a reasonable con-
struction would allow the defendants a suitable compensation for
their supervision of the canal. Dyer v. Fitch, 63 — 170.
68. The plaintiff, by written contract, agreed to furnish the defend-
ant with a specified quantity of logs, and by another written contract
made on the same day, agreed to drive all the logs put into the river
by the defendant, at a specified rate. Subsequently, the furnishing
contract was modified, and the number of logs to be furnished by the
plaintiff increased, but no new contract was made as to the price of
driving. Held, that the rate for driving, as specified in the written
contract, applied not only to the logs included in the furnishing con-
tract of the same day, but to the logs subsequently contracted for.
Meserve v. Lewiston Steam Mills Co., 64 — 438.
69. The plaintiff agreed to move pianos for the defendant, and the
defendant agreed to pay the plaintiff a specified price for each piano
moved, and "to find help" to aid in the removal. The plaintiff made
and used an apparatus to facilitate the work of removal. Held, that
122 CONTBACT.
although the use of the apparatus may have saved considerable labor
and relieved the defendant from the necessity of furnishing a part of
the help he had agreed to furnish, still he vas not liable to pay the
plaintiff for the use of the apparatus. Ladd v. Patten, 66 — 97.
70. Stumpage. The defendant agreed in writing to convey certain
land to the plaintiff, when he (the defendant) should have "received
from the stumpage out on said land, money enough to pay all the
consideration paid for said land," and interest and expenses. Held,
that as the word stumpage gignifies the price paid for the license to
enter land and cut down and remove timber, the plaintiff was entitled
to a conveyance, whenever lumber enough had been taken from the
land, the stumpage upon which was sufficient to pay the consider-
ation and expenses provided for, that this should include stumpa,ge on
operations carried on by the defendant himself, that stumpage, in the
sense of the agreement, accrued whether the defendant sold the per-
mits to others or used it himself, but that the defendant should not
account for stumpage which he failed to collect of other persons
through no want of care on his part. Blood v. Drummond, 67 — 476.
71. Neal cut and hauled logs for the defendants, for which they
agreed to pay him $5 per M. The plaintiffs afterwards agreed to
cut, haul and drive logs for the defendants, at $7 per M. (for some
and $6.50 for others), a million feet with what Neal hauled, and to
carry out the trade with Neal, one-half the logs to be hauled by the
M. for the defendants, the other half, the defendants to pay stumpage
on and own. Held, that the logs cut by Neal are to be included in
the logs cut by the plaintiffs, both as to the amount to be paid for
cutting, hauling and driving, and the proportion to be owned by each
party. Bishop v. White, 68 — 104.
V- IMPLIED CONTRACTS.
. 72. The law does not imply a promise to pay rent for the occupa-
tion of real estate under a contract of purchase ultimately consum-
mated ; and if there be no express promise on the part of the
purchaser, an action for use and occupation cannot be maintained
against him. Dennett v. Pen. Fair Gh'ound Co., 57 — 425.
73. Where the fraudulent representations of the seller of property,
whereby the purchaser was induced to buy, were such as give the latter
the right to rescind, and he does rescind the sale and surrender pos-
session to the vender, the law implies a promise, on the part of the
seller, to pay the purchaser for labor and materials in making reason-
able repairs upon the property. Farris v. Ware, 60—482.
74. Thus the defendant fraudulently represented the water-power
connected with his tannery, to be sufficient to work it continuously
throughout the year, and plaintiff, having no knowledge of the prem-
ises, and relying upon the representations, was thereby induced to
purchase the tannery, and thereupon, after taking a bond thereof and
giving his notes for the price, the plaintiff entered into possession,
and, under the advice of the defendant, expended large sums in
repairs ; but the water failing, the plaintiff abandoned the property,
and notified the defendant that he considered the contract of purchase
rescinded, whereupon the defendant took possession of the premises,
and had the benefit of the repairs. In assumpsit to recover for the
labor and materials in making the repairs, held, that the action was
maintainable. lb.
CONTRACT. 123
74. If land is conveyed in consideration of a promise of the grantee
which is within the statute of frauds and can not be enforced, and
which he afterwards refuses to perform, the law implies a promise to
pay what the land was reasonably worth. Long v. 'Woodman, 65 —
56.
See Physician, 3.
TlMK, 2.
VI. IN GENERAL.
75. When services, valuable to another, are rendered with his con-
sent, he is liable to pay a reasonable compensation therefor ; and if
he would avoid payment on the ground that they were a gratuity, or
that the person performing them did so only with the expectation
that he should receive a portion of the other's property by will, the
burden of proof is upon him who affirms such facts. JRtimrill v.
Adams, 57 — 565.
76. A person contracting to drive logs for the owner, cannot defend
an action for carelessness in driving such as he undertook to drive,
upon the ground that the owner did not turn out to be driven all the
logs he contracted to turn out. Boody v. Goddard, 57 — 602.
77. On May 12th, the defendant purchased by sample of the plain-
tiffs sixty-six barrels of sound beans. On the 24th June, the defend-
ant ordered, and on the 26th received from the plaintiffs fifteen barrels
of medium beans, and thereupon, for the first tiriie, notified the plain-
tiffs that fifteen barrels of the former lot were mouldy, and he had
ordered the latter lot to replace the mouldy ones, which he then
returned. In an action to recover for the latter lot, held, that the
latter lot could not he substituted for the movildy beans without the
assent of the plaintiffs, and that the plaintifl: could recover their value
on account annexed. Woodward v. Libhy, 58 — 42.
78. Place. When a contract, made and to be performed in Eng-
land requires the payment of a certain amount in hard Spanish dollars,
the amount to be recovered here is its equivalent in coin. Stringer v.
Goomhs, 62— IGO.
79. The nature, validity and construction of contracts are to be
determined by the law of the place where they are made, and all
remedies for enforcing them are regulated by the law of the place
where the remedy is sought. lAndsay v. Hill, 66 — 212.
80. Apportionment. A railroad company undertook to carry over
its road a "crate" for an express company for an agreed compensation
per year, the compensation for each month being payable on the first
day of the month following, and did carry it, until prevented by its loss
of the road, which passed into the hands of a mortgagee on a day
between the monthly pay days. The mortgagee continued to operate
the road and to carry the express crate. Held, that payment by the
express company for the month when the mortgagee took possession
might be apportioned between the mortgagee and the railroad com-
pany; that, having acted in good faith, the railroad company was
entitled to compensation for the time it carried the crate, less the
damages caused by its failure to carry for the entire time. Emerson
V. European & JST. A. B. B. Co., 67—387.
81. Abandonment. Where two railroad companies entered into a
contract to construct at their joint expense a sear wall and street upon
124 COPYRIGHT — COEPOEATIONS.
â– whioli a track is to he laid to connect their roads, and to purchase land
and build a depot at some point on the connecting track, the contract
also providing regulations for the joint use of the connecting track
until the depot should be built, and the contract was carried out with
the exception that the proposed depot was not built, it was held, that
after the expiration of twenty years, the stipulation with regard to the
depot must be treated as abandoned by mutual consent, neither party
having made any effort towards its erection, and one of the parties
having built a permanent depot at another place, without any objection
from the other. Portland, Saco & Portsmouth M. R. Co., v. Grand
Trunk Railway, 63- — 90.
82. Genbeal Lajstguage. Language, however general in its form,
when used in connection with a particular subject matter, will be pre-
sumed to be used in subordination to that matter. Emerson v.
European S JST. A. R. R. Co., 67—387.
See Railroad, 28, 70.
Waiver, 8.
CONVICTIOlSr.
See Abatement, 43, p. 6. Indictment, 80. Verdict, 5.
Witness, 32.
COPYRIGHT.
1. In the absence of any special contract, the different owners of a
copyright are simply owners in common, not partners, and each owner
has a distinct but undivided j)art, which, or any part of which alone,
he can sell. Carter v. Bailey, 64 — 458.
2. A copyright is assignable in whole or in part. Ih.
3. Each owner in common can exercise his right to print, pubUsh
and sell without aid from or hindrance by the other owners, the only
restriction being as to time. Ih.
4. An owner in common of a copyright, who has, at his own
expense, printed published and sold the book copyrighted, is not
liable, in the absence of any agreement inter sese, to account to his
co-owner. Ih.
CORPORATIOKS.
I. ORGANIZATION.
II. EIGHTS AND LIABILITIES OF MEMBEES.
(a) GbnkbaI/I/T.
(b) Subscriptions fob stock and assessments thereon.
(C) iNDrVIDUAL LIABILITY OP STOCKHOLDERS FOB THE DEBTS OJ
THE CORPORATION.
COBPORATIONS. 125
III. TRA]SrSFER OF SHAEES.
IV. DIVIDENDS.
V. OFFICERS.
VI. CORPORATE POWERS, RIGHTS, AND LIABILITIES.
VII. DISSOLUTION.
VIII. PLEADING.
I. ORGANIZATION.
1. Unless the certificate of the attorney general be obtained, as
required by R. S., 1871, c. 48, § 19, the persons associating themselves
together under the provi.sions of that chapter do not become a cor-
poration. JRichmond Factory Association \ . Clarice, &\ — 351.
2. Corporations formed by the action of the mortgagees of insol-
vent corporations, and those formed by the consolidation of pre-
existing corporations, are new corporations, both by the rules of
the common law and by the express terms of the statute, and as such
new corporations are subject to the general law of 1831, making the
charters of corporations liable to be amended by 'the legislature.
State V. Maine Central B. E. Co., 66 — 488.
II. EIGHTS AND LIABILITIES OF MEMBERS.
(a) Generally.
(b) STJBSCEIPTIONS foe stock AHD assessments THBKBOH-.
(c) Individual liability oe stockholdehs toe the debts of
THE COBPOEATION.
(a) Generally.
3. A member of a corporation, who is not its financial oiEcer, can
not, without authority, make himself its creditor by the voluntary
payment of its debts. Ulanchard v. First Asso. of S. of Portland,
59—202.
4. The plaintiff, a member thereof, sued a religious society for a
balance of account wherein was charged various sums paid for furni-
ture for their hall of worship, and credited various contributions from
members and others for the use of the hall. The by-laws provided
for the election of a treasurer, who had charge of the funds, and was
required to pay all bills ordered by the government. The plaintiff
and others, having been appointed a committee on the hall, without
specific duties or authority, purchased and paid for the furniture.
The account as sued was presented by the committee in their report
to the society. Held, (1) that the plaintiff could not thus make him-
self a creditor of the society, and (2) the acceptance of the report
was not such ratification by the society as would authorize the
suit. lb.
5. In 1863, a voluntary association was established by the name of
the "Lewiston Equitable Co-operative Society," for the buying and
selling to shareholders and others, groceries, etc., and its constitution
provided that members might "withdraw their funds by giving" cer-
tain notices, and its by-laws that when a notice to withdraw is given,
his "membership ceases." In January, 1867, a corporation by the
same name and for the same purpose, was organized under an act of
the legislature. In September following, the agent and salesman of
126 COEPOEATIONS.
the corporation handed to the plaintiff a printed copy of the "consti-
tution and by-laws of the Lewiston Equitable Co-operative Society,
established December, 1863," informing him that it was the constitu-
tion and by-laws of the defendant corporation, and thereupon the
plaintiff purchased fifty shares of the stock, became a member,
attended its meetings, had opportunity at all times to examine its
constitution, by-laws and records, and purchased goods of its agents,
and received one dividend. By the by-laws of the corporation, mem-
bers might, by giving notice, surrender their certificates of stock, and
receive therefor its fair and equitable value, to be determined by the
m.anagers, — "provided that the assets shall be in excess of its lia-
bilities, and not otherwise." The corporation became insolvent in
December, 1868, and has continued so. In January, 1869, the plain-
tiff gave notice, as by the constitution and by-laws of the voluntary
association, of his withdrawal of funds and membership, and brought
this action to recover back his money. Held, (1) that the defendants