The first objection made in this case to the plaintiffs retaining their verdict is, that the suit is brought in the name of the Woonsocket Union Railroad Company, instead of the name of the New York and Boston Railroad Company, in which last corporation, it is said, that the former is merged and lost. The objection is not taken by plea of misnomer in abatement, but by plea of nul tiel corporation, and under the general issue, so that the question is, whether the description of the plaintiff corporation in the writ and declaration sufficiently identifies it with an existing corporation entitled to sue the cause of action, and not whether that corporation sues in its proper name. The description of the plaintiff in the writ and declaration is, — "The Woonsocket Union Railroad Company, a corporation created by the General Assembly of the State of Rhode Island, and united according to the provisions of its charter with the New York and Boston Railroad Company, a corporation created by the Legislature of the State of Connecticut, and transacting business under the corporate name of said united corporation, trustees," c. No language could more accurately describe or clearly identify the corporation entitled to sue in this case. Such a corporation, and by the name given, *Page 578 was created by this state, and was authorized by its charter to unite, and did unite, with the New York and Boston Railroad Corporation, incorporated by the state of Connecticut, and has since transacted business with that corporation, as a united corporation, under the corporate name thereof. Without deciding whether a plea of misnomer, in abatement, would not have prevailed on the technical ground, that by the act of incorporation, the proper name in which the plaintiff should sue, since the union, is, "The New York and Boston Railroad Company," we cannot say that no such corporation as that named and described, did exist when this suit was brought, and hence this objection falls to the ground.
Another objection to the verdict is, that the judge who presided at the trial refused to instruct the jury, that the calls upon the defendant's subscription for stock, could not, according to the condition of the same, be collected until the union railroad was actually built, or completed, through the village of Pascoag. Such an interpretation is, no doubt, theliteral interpretation of the subscription, but not the reasonable one. There were two routes for this railroad in contemplation, one by the way of Pascoag where the defendant did, and one by the way of Chepachet, where he did not, own property. We understand his subscription to mean, "if the road is built, in the sense of `to be built,' by the former route, where it will benefit me, I will take fifteen shares; if by the other route, where I shall receive no benefit from it, I will not subscribe at all." The proof was, and so the jury have found, under the instructions of the court, that the road was in good faith located and designed to be built, and in part built, on the Pascoag line; and we must hold this to be a fulfillment of the condition of the defendant's subscription, unless, indeed, we suppose that the company was not to have the defendant's aid to do that, which he subscribed to enable them to do. The suggestion, that the corporation was to build the road on this line on credit, so far as the subscriptions of the defendant and of others on like condition were concerned, and then, only if the road was completed to have the aid of those subscriptions to pay their debt, is unreasonable *Page 579 towards those engaged in the same enterprise, and unjust to the contractors on the road, and cannot, as an interpretation of this subscription, be entertained by us.
For the same reason we approve the ruling of the judge, that the proviso in the subscription, that a section of the road might be built, beginning at Woonsocket and ending at Pascoag or Chepachet, when 2000 shares of the capital stock should be subscribed, was a waiver, to that extent, of the general condition, that the subscriptions were not to be binding until $500,000 were subscribed to said stock. Upon any other construction the proviso would be senseless, in view of the only purpose it was inserted to accomplish.
With regard to the propriety of admitting the corporation records, or minutes of the doings of the Woonsocket Union Railroad Company, and of the New York and Boston Railroad Company, — regularly kept as such, — for the purpose of proving the corporate proceedings, and all that may be fairly intended from them, we suppose that there can be no doubt. The evidence derivable from them is never conclusive, and may not, in some cases, be sufficient for the purpose for which they are introduced. All that is matter for the jury; but upon looking into the evidence in this case, bearing upon the points to which the evidence from this source was deemed insufficient, we see enough in the conduct of the defendant himself, coupled with that coming from other sources, to induce us to refuse him a new trial, upon the ground that this verdict was against the evidence.
New trial refused, and judgment ordered to be entered uponthe verdict.
At the trial of the case, it appeared, that the defendant had paid fourteen assessments on his shares, of five per cent. each, for which he produced the receipts of Lebbeus Gaskill, an agent of the corporation, appointed to collect assessments of subscribers, for six of which assessments, amounting to the sum of $450, the defendant, on the sixth day of May, 1854, gave his promissory note, payable to the corporation in four months from *Page 580 date, which Gaskill turned over to Stokes, the then treasurer of the corporation. The defendant swore that he had never paid this note; but the note not being produced, or accounted for, the amount of the six assessments covered by it, were treated as paid, and did not enter into the verdict.