The opinion of the Court was delivered by
Weston J.The general remedy for the non-payment of assessments, in corporations of this character, is by the sale of the share of the delinquent proprietor. No other remedy exists, where the agreement is to take a certain number of shares. And in the case of the Andover and Medford Turnpike v. Gould, 6 Mass. 40, it was adjudged that no greater liability attached, where the agreement was to take a certain number of shares in that corporation, and to be a proprietor therein. Unless there is some further agreement or stipulation, as has been repeatedly decided, the corporation can look only to the statute remedy. This may often prove inadequate ; and the enterprize contemplated fail for want of funds. Against such a contingency, the corporation may guard by requiring a promise not only to take the shares, but to pay the assessments, which may be lawfully made thereon. Assumpsit will lie upon such an agreement, as was decided in the case of the Worcester Turnpike v. Willard, 5 Mass. 86. This is conceded ; but it is insisted that the promise must be made in terms, which were held binding in that case, or in language equally strong. The promise must be plain and unequivocal, and if so, in whatever terms expressed, it ought to have the same legal efficacy.
In the case before us, the agreement of the subscribers *480was, not merely to take the number of shares, set against their names respectively ; but they were to fill up their shares. This stipulation had some meaning, was intended to have some effect, which indeed cannot be misunderstood. To fill up, is to pay the assessments, which ascertain what proportion of the general expenditure falls upon each share. The term used requires this construction, and no other sensible meaning can be given to it.
The exceptions are sustained, the nonsuit is set aside, and a default is to be entered.