We think there are several grounds of defence to this action, either of which is decisive. It is unnecessary to consider what took place at the trial, because, after the case was opened, the parties proposed to agree to a statement oi facts, and upon that statement the case now comes before the court.
The defendant having given notice that he should call upon the plaintiff corporation to prove their capacity to sue as a corporation, and no proof having been offered upon this point, this would be a good defence to the action. Christian Society in Plymouth v. Macomber, (ante, 235.)
But if this were the only objection — on the assurance of the plaintiffs’ counsel, that the incorporation and organization were in fact all regular, and easily susceptible of proof, and that they were not aware that this was seriously questioned — we should be strongly inclined to discharge the present statement, and ad mit them to the proof of the necessary facts.
But we are satisfied that the paper produced constitutes no valid contract with the_society. It is a paper under seal, and yet there is no covenant or stipulation whatever with the soc ety. It is manifestly an inchoate proceeding ; a proposal, by the members of the society, as between themselves, and contemplating some further proceedings. The subscription is for “ ten shares, five hundred dollars.” The term “ shares ” implies that some stock was contemplated ; yet it is not stated what number of shares should compose the whole, nor what the stock was to consist of, nor how it was to be managed and distributed ; nor does there appear to be any subscription foi shares. There are three other subscriptions on the same paper, *420for five dollars each, which we take to be offers of gratuitous contribution, but not offers to take shares.
But farther : There is a discrepancy between the contents of the paper, and the words connected with the testator’s signature. The paper recites that the subscribers are willing to contribute something towards the erection of the meetinghouse ; the testator subscribes his name, and places against it the words “ ten shares, five hundred dollars.” We cannot understand this as a promise to give $ 500, without having some equivalent in shares. But yet it is nowhere averred, nor does it appear in fact, that any stock was created, or that any shares, in any stock or property, were ever offered to the testator, or to his executor. It does not appear, that any house was ever built, or any expenses incurred, in consequence of this undertaking. In short, we can perceive, in this imperfect paper, a manifestation of good will for the object contemplated by it, but no legal or binding obligation to any one, and certainly none to the plaintiff society.
Plaintiffs nonsuit.