The Belfast and Angelica Plank Road Company, was incorporated in March, 1851, by articles of association made under the act of the 7th May, 1847, and the acts amendatory thereto. The requirements of the statutes seem to have been complied with in every essential particular, except the alleged omission relied upon by the defendants, to which I shall presently refer. The various papers or certified copies thereof, required to constitute the corporation, were given in evidence upon the trial, and are set out in the case. The second section of the act referred to provided, amongst other things, that the articles of association should not be filed with the secretary of State until there was indorsed thereon, or annexed thereto, an affidavit made by at least three of the directors named in such articles; that the amount of capital stock required by the first section has been subscribed, and five per cent on the amount actually paid in. Upon an inspection of the affidavit in the present case, it appears that the latter requisition of the statute has been omitted. A compliance, in this particular, is claimed by the defendants to be condition precedent to the creation of the corporation, which could not be dispensed with, and without which no corporation was created. It appears, however, that by the 13th section of the act of the 6th April, 1849, in relation to *Page 655 plank and turnpike roads, the 1st section of the act of May 7th, 1847, was amended by striking therefrom out of the 10th and 11th lines, the words "and five per cent paid thereon, as hereinafter required." The section, so amended, would leave the associates to proceed to organize their company and elect their directors, without the payment of the five per cent. It is true the section which follows it and provides for filing the articles of association and the affidavit, still retains the provision requiring the payment of the five per cent to be set out in the affidavit. But when the actual payment had ceased to be an essential requisite, and was no longer required by reasonable intendment and implication, the proof of it ceased to be a condition necessary to the creation of the corporation.
The next objection taken by the defendants to the plaintiffs' right to maintain the action, is the insufficiency of the proof to show the extinguishment of the public easement over the bed of the road, that having been a highway for more than twenty years before the plaintiffs' articles of association were signed and filed. The fifth section of the act of March 16th, 1856, to amend the act for the incorporation of companies to construct plank and turnpike roads, prohibits the supervisor and commissioners of highways from making any agreement with any plank road company for the right to take and use any part of the public highway for the uses of the road, without first obtaining the consent, in writing, of two-thirds of all the owners of lands along such highway who shall actually reside on that part of the highway on which the plank road is to be constructed. The two certificates of release read in evidence upon the trial, one from persons claiming to be inhabitants of the town of Angelica, and the other from persons claiming to be inhabitants of the town of Belfast, the towns of Angelica and Belfast being the towns in which the plaintiffs' road is located, do not fulfill the requirements of the statute. It does not appear that the persons executing the certificates were the owners of lands lying along the highway taken for the road, nor whether they are two-thirds in number of such owners, and in this respect the proof must be regarded as *Page 656 defective. It is to be observed, however, that the defendants passed over the road and through the toll-gate, without claim that the road was a public highway, but with a request to the toll-gatherer that the tolls might be charged to them separately, and a promise, to be implied certainly, that they would pay the tolls in due season. The referee found as a fact, upon evidence not open to any objection, that the plaintiffs had constructed the road, which was six miles in length, in the towns of Angelica and Belfast, and had erected a gate thereon and taken toll thereat for five consecutive years next preceding the commencement of the action. If we should feel ourselves free to say that, after what has occurred, the defendants could raise this question of want of consent by the land owners — which I am far from asserting — then I am of opinion that the irregularity and error is cured by the provisions of the two statutes to which I shall refer. The first is to be found in the act of the 28th March, 1854, section six, declaring that companies formed under the act of May 7th, 1847, and the acts amending the same, shall be deemed valid corporations, though they may not have complied with the requirements of such acts in the formation and organization of such companies preparatory to the construction of those roads. And no acts or omissions shall work a forfeiture of their powers and franchises unless the same was willful and malicious. The office of this section is to save the companies from any disabilities and injuries resulting from defects or omissions in the forms and manner of their organization. The other provision to which I refer is in the first section of the act of the 18th April, 1855, declaring that in actions brought by or against plank and turnpike companies, organized under the laws of the State, which shall have been in actual operation, and in possession of the road upon which they have taken tolls for five consecutive years next preceding the commencement of the action, parol proof of such corporate existence and use shall be sufficient for all the purposes of the action, unless the opposing party shall set up title in himself to the road, or some part of it, by answer duly verified, stating the nature of his title, and right to the *Page 657 immediate possession and use thereof. This provision operates as a limitation upon the rights of a defendant to put in issue or controvert the regularity of the plank road company's organization, or its title to the franchises after a possession and enjoyment of five years, except in the single instance where he shall set up title in himself to the road or some part of it. The title spoken of is not a mere easement such as every member of the community has to pass over a public highway, because the title must be of such a nature as to give the claimant the right to the immediate possession as well as the use of the road. These considerations seem to me to dispose of the defendants' objections to the plaintiffs' right to maintain the action as a corporation, with the usual title to the road in question.
We are next to consider whether the three defendants are jointly liable for the tolls claimed. The men and teams employed by the defendants respectively moved the timber on the road to the Genesee Valley canal, where it was deposited promiscuously at one common point, the defendants personally taking the control and direction of the work. The two defendants Willetts first became the owners of the timber, and before moving they proposed to the defendant Chamberlain to become the owner of the third part thereof. While the movement of the timber was in progress, Chamberlain accepted the proposition and became the owner of an undivided third of the timber. All the teams employed in moving the timber passed over the plaintiff's road and through the toll-gate, the gate-keeper keeping a separate tally, by request of the defendants, of the teams of each of them as they passed the gate. The tolls for the teams of Chamberlain amounted to the sum of $52, and those of the defendants Willetts amounted to the sum of $60.56. The timber was sold upon joint account by the defendants after it was delivered at the canal, and after deducting the purchase price and the expenses of moving it, the proceeds were equally divided amongst the defendants.
The transaction has all the elements of a partnership. The defendants became joint owners, sharing equally the profit *Page 658 and loss of the enterprise. This created a partnership in regard to the timber, and imposed upon them all the duties and obligations of copartners. (3 Kent's Com., 26; Collyer on Partnership, 12.) Some of the tolls, however, accrued before Chamberlain acquired his interest, and in respect to these it is said there can be no joint liability because the debt was contracted by the Willetts and not by Chamberlain. This argument is more fanciful than real, and in any aspect is purely technical. The teams of the latter were upon the road, as were the teams of the former, during the whole time of the movement of the timber. As the tolls were not paid as each team passed the gate, but were charged in the tally memorandum, at the request of the defendants, it is fair to infer that payment was not to be made until the whole work was completed. Before that was done, the defendants became joint owners and partners, liable for the debts incurred in the progress of the enterprise, and sharing in the benefits resulting therefrom. And the proof shows that before the commencement of this action the proceeds compounded of the value of the timber, the labor bestowed upon its transportation, including the tolls for the use of the road, were received and shared equally by the defendants. I see no difficulty in implying a joint promise made by the three defendants upon a sufficient consideration to pay the tolls for the use of the road. And although the promise cannot strictly be regarded as made to the plaintiffs, it belongs to that class of cases where the plaintiff, although not the promisee, may enforce performance of a promise made upon good consideration for his benefit. Had any two of the defendants died before the sale of the timber and its conversion into money, the other defendant would have become invested with the right to the property in the timber as survivor, subject to the debts of the concern and the rights of the representatives of the deceased partners, and amongst those debts the tolls claimed in this action would have been justly included. The judgment of the General Term should be affirmed with costs.
Judgment affirmed. *Page 659