Bryant v. Goodnow

The opinion of the Court was drawn up by

Parker C. J.

The principle on which this action is founded, is maintained by the cases of Homes et al. v. Dana, 12 Mass. R. 190, and of Trustees of Farmington Academy v. Allen, 14 Mass. R. 172. It is, that when one subscribes, with others, a sum of money to carry on some common project, lawful in itself and supposed to be beneficial to the projectors, and money is advanced upon the faith of such subscription, an action for money paid, laid out and expended, may be maintained to recover the amount of the subscription, or such portion of it as will be equal to the subscriber’s pro portion of the expense incurred.

It appears in this case, that the plaintiff, who was the agent of the company, in pursuance of the scheme agreed upon, and under the direction of the company, expended a sum which will require the whole sum subscribed by the defendant ; and that property was purchased, of' which the defendant is tenant in common. He is legally and equitably bound, therefore, to pay up his subscription, unless he has been unfairly dealt by in the business. He complains that he was not notified of the first meeting of the company. But he evidently waived his objections on this account, when he offered to pay if the plaintiff would receive oats in payment; and after-wards, when he declared he should have paid but for some supposed ill treatment, he must be held to have recognised his original engagement as subsisting, notwithstanding the want of notice.

We think the nonsuit must be set aside and a new trial granted.1

1 See Phillips Limerick Academy v. Davis, 11 Mass. R (Rand’s ed.) 119, n. a; Salem Mill Dam Corp. v. Ropes, 6 Pick. 23 ; Trustees &c. in Hanson v. Stetson, post, 506; Foxcroft Academy v. Favor, 4 Greenl. 454; Society in Troy v. Perry, 6 N. Hamp. R. 164; George v. Harris, 4 N. Hamp. R. 533.