Boston Acid Manufacturing Co. v. Moring

Merrick, J.

The defendants contend that the plaintiffs are incapable of maintaining this action, upon the ground that the original associates never so far complied with the provisions of the act relating to joint stock companies as to constitute them a body politic and corporate, under the name which they assumed in their articles of association. St. 1851, c. 133. But their only alleged omissions and deficiencies in this respect are that the officers by whom the certificate, mentioned in the fourth section of the statute, was signed, were not chosen agreeably to the provisions of the 38th and 44th chapters of the revised statutes ; that no part of the capital stock of the company had been paid in when their certificate was made and deposited with the secretary of the Commonwealth; and that their treasurer had not then given bonds for the faithful discharge of his duty, according to the requirements of law. Upon examination of the provisions of the statutes, it appears very clear that the position of the defendants cannot be supported upon either of these supposed and alleged defects.

By the fourth section ot the 38th chapter of the revised stat*214utes, the directors and treasurer of a corporation are to be chosen annually by the stockholders at such time and place as shall be provided by the by-laws of the company. But this provision is obviously inapplicable to the first choice of officers by persons associating themselves together, and proceeding to create and constitute themselves a body politic under the act relating to joint stock companies. No by-laws can be adopted by or for a corporation, before the corporation itself is created. But when the associates first meet together in pursuance of their articles of association, and then commence the initiatory steps towards constituting themselves a body politic and corporate, they may and must determine the manner in which all needful officers shall be elected. And this is equally within the letter and spirit of the provisions of § 1 of the 44th chapter of the revised statutes, that all corporations, where no provision therefor is specially made, may elect in such manner as they shall determine to be proper all officers necessary for the conduct of their affairs. This is what was in fact done when the proprietors and associates proceeded to organize the plaintiff corporation; and it was all that was required, or even possible for them then to do. Of course it cannot be said that there was in this respect any failure on their part, or omission to do what was necessary to constitute a complete organization of the company. And no assessment having been levied, nor any call made for the payment of any part of the capital stock of the company, at the time when the certificate deposited with the secretary of the Commonwealth was signed by the president, directors and treasurer, they could only certify to the facts as they existed. This was therefore a sufficient compliance with the requirement of the law upon that subject. Having been thus duly organized, the associates became .a corporation, with all the powers and privileges, and subject to all the duties, restrictions and .labilities, incident to that relation. The treasurer should have thereupon given a bond for the faithful discharge of his duties But this was not essential to the constitution of the body politic but is rather a precaution subsequently to be taken for the benefit of its stockholders. It would seem indeed to be a security which *215could only be obtained after the corporation should come into existence; for if a bond is to be taken by them from one of their officers, the corporation must first act upon the subject, and determine what should be its terms and to whom it should be given, It is a necessary conclusion from these considerations, it not being suggested that there is any other imperfection or irregularity in their proceedings than those above referred to, that there is no foundation for the objection that the plaintiffs are incapable, in consequence of any defect in their organization, of maintaining the present action.

2. The defendant, in his answer, said that he had one hundred; and seventy five carboys of acid in his possession, but that he-was ignorant whether the one hundred and seventy carboys-mentioned in the plaintiffs’ writ were a portion of the same ; and! he proceeded further to aver that he had a special property in all the carboys in his possession, and the grounds upon which he asserted and would maintain that claim. By the provisions of the 75th section of the 312th chapter of the statutes of 1852y the allegations in a writ or answer bind the party by whom they are made, but are not otherwise to be deemed -evidence upon the trial. It was therefore correctly ruled by the court, that if the jury were satisfied, upon the other evidence in the case, that the carboys referred to in the answer as in possession of the defendant were the identical carboys in controversy, his allegations to that effect in his answer might be used as an admission of possession by defendant against himself. By the terms of the statute, his allegations concerning them might not only be treated as an admission, to be regarded as evidence against himself, but as a statement by which he was conclusively bound. This is so in relation to each and all his averments, that while he is himself bound by these allegations, they can be availed of by him only so far as they may be established as facts by competent evidence.

3. The court also properly declined, in compliance with the request of the defendant, to order a' nonsuit, or to rule that there was no sufficient evidence in the case to authorize the jury to find a verdict for the plaintiffs. The evidence was circumstan*216tial, and its effect was to be determined by the jury. There is no motion now before this court to grant a new trial upon the ground that the verdict was against the weight of evidence. We have only to consider whether the court erroneously declined to accede to the defendant’s request; and upon this question we think there can be no doubt. The effect to be given to the evidence was strictly within the province of the jury, and it was therefore correctly submitted to them. But we do not discover from an examination of that which is reported in the bil. of exceptions that they fell into any error in regard to it. which requires or would justify the intervention of the court to set aside or disturb their verdict. Exceptions overruled.