The foundation of the plaintiffs’ claim in this case must rest in the contract of 1847. The proposition made by the vote of 1864, even if legally accepted and fully complied with, does not make a complete contract by itself. A dividend, made up in accordance with the terms of the vote, would be payable by the plaintiffs and not by the defendants. There is, upon the face of the proposition, no promise to pay the dividends, or to pay the amount thereof to the plaintiffs. Independent of the original agreement, it would be impossible to derive from that vote any such definite obligation as would be capable of being enforced by an action at law. The vote of acceptance implies such an obligation. But that is the language of the plaintiffs, and cannot operate to engraft upon the proposition of the defendants an obligation which its own terms will not warrant. Both votes were undoubtedly passed with reference to the terms of the original contract of 1847; and in that relation they are sensible and well adapted to effect the evident purpose in view. They serve to modify that contract in *273respect of one only of its terms; namely, the amount to be paid for the semiannual rent." By the contract of 1847, which is assumed on both sides to be valid, the defendants and the Eastern Railroad Company have had joint possession and control of the plaintiffs’ road, and have received all income from business done upon it; and, in consideration therefor, are jointly bound to “ pay, or cause to be paid, semiannually,” to the treasurer o', the plaintiff corporation, “ for the use of the stockholders of the said corporation, the sum of three dollars in gold or silver coin of the currency of the United States, for each and every share of the capital stock of the said corporation.” The vote of the defendant corporation in 1864, with a like vote by the Eastern Railroad Company, accepted by the plaintiffs, would undoubtedly so modify the original contract as to enable the plaintiffs to maintain an action jointly against both corporations for the amount that would be due in accordance with the new arrangement, if the payment of such substituted dividend should be prevented, or the means for its payment withheld by them. As no objection is made by the defendants on account of the severance in this action, we have only to consider how far the proposal of the defendants, to modify the joint contract, can operate against the defendants in the absence of any concurrence of the Eastern Railroad Company in the proposed modification.
Of course no change in the joint contract, as such, can be made without the concurrence of all parties. But the defendants might be subjected to a different measure of damages, in a separate suit for breach of obligation on their part, if it were clear that there was a separate stipulation therefor, not inconsistent with the joint relations subsisting between the several parties; or to damages for breach of an independent supplementary agreement relating to the subject of the joint contract. But, as already indicated, we do not find in the vote of the defendant corporation in 1864, any words which express such an independent agreement, or separate stipulation as to the measure of damages for breach of subsisting obligations. The whole tenor.of the vote 'oaks to a change in the joint agreement. In *274this connection, the relations previously subsisting between the parties are important to be regarded. By the tenth article of the contract of 1847, it is provided that the party of the second part therein, namely, the Boston and Maine and the Eastern Railroads, shall have to their own use “ the full amount of all the rents, profits, income, earnings and issues of said railroad ” of the plaintiffs “ after first applying so much as may be necessary to make the semiannual payments aforesaid and for the expenses of maintaining, operating and employing said railroad.” A vote of the defendant corporation alone, to “ authorize the directors of the Portland, Saco and Portsmouth Railroad to make up their semiannual dividends ” “ at the rate of four dollars per share,” purports to authorize that which cannot be carried into effect without the concurrence of the Eastern Railroad Company. There is nothing to indicate any change in the mode of payment, or the source from which the means o,f payment are to be derived. The vote must therefore be held, as we think, to contemplate payments out of the fund in which the two corporations, as lessees, had a common and equal interest. As the assent of the Eastern Railroad Company would be necessary to enable the purpose contemplated by this vote' to be carried into effect, it is to be presumed that the vote itself was adopted with the expectation and intent that it should be made complete by a like vote to be adopted by the Eastern Railroad Company. The dependence of this vote upon a corresponding vote of the Eastern Railroad Company is equally manifest from the terms of the vote, by which the dividends of four dollars per share are authorized only “ on the half of their capital representing the interest of the Boston and Maine Railroad in the contract dated April 1, 1847,” provided the Boston and Maine Railroad Company is relieved from all liability, &c. To carry such a vote into effect, as a separate and independent vote on the part of the defendant corporation, would be utterly impracticable. The plaintiffs ask us to construe this vote, and its acceptance, as a promise by the defendants to pay to the plaintiffs one half of such sum as would, with the payments already made, make up the amount of four semiannual dividends te *275the rate of four dollars per share. But we are unable to find in the terms of the votes, with the aid of all the circumstances of the case, any foundation for such a construction; and we are all of the opinion that they will not warrant the inference of such a separate and independent obligation.
It is unnecessary to consider the other questions discussed at length in the argument; inasmuch as, for the reasons above stated, our conclusion is that the action cannot be maintained in any aspect of the case. Judgment for the defendants.