Cunningham v. Vermont & Massachusetts Railroad

Metcalf, J.

The decision in the action of William Wright against these defendants (12 Cush. 68) is conclusive against the maintenance of this suit upon the state of things that existed on the 3d of July 1849, when that action was commenced. This is admitted by the plaintiffs. But they insist that by the completion of the railroad, in February 1849, and the stockholders’ vote passed on the 9th of February 1853, the defendants are made answerable in this action. That vote authorized and instructed the directors to declare and adjust “interest dividends,” by uttering certificates therefor to holders of stock, or their order, with the express understanding and agreement, that if there should not be, on the 15th of July 1856, sufficient money in the defendants’ treasury to meet the full amount of said dividends, they should be paid vro rata, so far as the treasurer should then be able to pay, and that he should give notice when he should become able to pay the balance. We are of opinion that this vote entitled the holders of stock to payment of interest dividends only on the precedent condition that there should be money in the treasury. When this suit was instituted, there was not, and had not been, after that vote was passed, any money in the treasury. Plaintiffs nonsuit.*

* See Barnard v. Vermont & Massachusetts Railroad, 7 Allen, 512.