author: Church, C. J. Ellsworth, J.

text:
    Finch vs. Finch.
    The husband and wife were divorced, by a decree of the superior court, upon her application, and the custody and control of their minor children were awarded to her. In an action of book debt, brought against the father, for the entire support and education of such children, furnished by her after such decree had been granted, it was held,.that she could not recover. (Two judges dissenting.)
    The case of Stanton v. Wilson, 3 Day R., 37, commented on.
    This was an action of book debt, brought against the defendant, by his former wife, after they had been divorced, to recover for the education and support furnished by her to their minor children.
    At the superior court, for Fairfield county, holden in October, 1851, an auditor was appointed, to adjust the accounts between the parties, who, after a hearing before him, found and reported, that the defendant was indebted, and owed to the plaintiff $126.96.
    On a remonstrance to the acceptance of this report, the following facts appeared, and were found by the court.
    That on the trial before the auditor, on the plea of the general issue, the plaintiff presented the following account:
    “ Curtis Finch,
    To Catharine S. Finch, Dr.,
    For board of seven children, viz.: Catharine A., Sárah V., Ellen L., Clarence V., Mary Alice, Francis 0. and William Henry Finch; from December 9th, 1850, to January 29th, 1851, eleven and a half weeks, at $8.00 - - $92.00
    For books and clothes for Clarence, - - 5.00
    Two pairs of shoes, and clothing Ellen, - 4.00
    Clothing for three youngest children, - - 10.00
    Medical attendance, - - - 3,00 >
    School books, - - - 2.00
    $116.00
    Heretofore, and until the first Tuesday of October, 1850, the plaintiff was the wife of the defendant, and the children, named in said account, were the lawfully begotten children of the plaintiff and defendant. On the 12th of January, 1850, the plaintiff brought her bill to the superior court, for the county of Fairfield, praying for a divorce from the defendant,—for alimony from his estate,—and for the custody, control and education of said children, with such provision for their support and education as should be just and legal. At the October term, 1850, said court passed a decree, granting a divorce; and also found, that the defendant was unfit for the custody and education of said children, and granted said custody and education to the plaintiff; and also assigned to the plaintiff, out of the defendant’s estate, the sum of twelve hundred and twenty-two dollars, as her alimony,— which sum was fully paid.
    On the trial before the auditor, the plaintiff claimed, that the defendant was liable to her, for said items of account; it being admitted, that she had furnished the same, solely,on the ground of his obligation to support and educate his lawful children. The defendant resisted said claim, and claimed that, by said decree, he was discharged from such support and education, and could not be liable to her therefor. Upon these facts, the case was reserved for the advice of this court, as to what judgment should be rendered therein.

      Hawley and Carter, for the plaintiff,
    contended, 1. That the decree of the court, divorcing the plaintiff, and assigning the custody of the children to her, did not absolve the defendant from his liability to maintain his children. On this point, the report of the auditor is sustained by the case of Stanton v. Wilson, 3 Day 37. That case was decided upon principle, and with great deliberation, and is in conformity with the principles of the common law.
    2. That the defendant should not be permitted to take advantage of his own misconduct to both mother and children, to avoid his liability, as a parent.
    3. That this case is not distinguishable from that of Stan

      ton <$• Wilson, on the ground that an allowance was made, in the decree, for the maintenance of the children; for, although the petition contained a prayer for such an allowance, none such was made, nor does the decree purport to- make any, nor is any authorized by law.

      Ferry, for the defendant,
    contended, 1. That this case differs materially from Stanton v. Wilson, upon which the plaintiff relies. The prayer of the present plaintiff, in the application for a divorce, is unlike Mrs. Bird’s application to the general assembly. 1. The general assembly merely constituted Mrs. Bird “ sole guardian of her son and daughter.” The superior court decreed, that the plaintiff have, henceforth, “ the custody, care and education of said children.” The general assembly resolved, “ that John Bird should pay to said Eunice, $3,000, as her part and portion of the estate of said John, and in lieu of all claims of dower.” The superior court decreed, that the sum of $1,222, be assigned to the present plaintiff, as such alimony and allowance. 2. The opinion of the court in Stanton v. Wilson, proceeds upon the ground, that though, “ by the divorce, the relation of husband and wife was destroyed,” yet it was not so, with the relation between Bird and his children. The decree of the superior court has destroyed every legal incident to the latter relation, in the present case, unless it be the liability of the father for the support of his children, which is removed when those other incidents are destroyed. The parental duties are maintenance, protection and education ; and the parental rights are, obedience, subjection, and a title to the earnings of the minor child; and these rights and duties are reciprocal. Sw. Dig., 42. Morse v. Welton, 6 Conn. R., 547. If the wife becomes discovert, by the death of the husband, she remains the head of the family, and is bound to support the minor children. Dedham v. Natick, 16 Mass. R., 135. Nightingale v. Withington, 15 Mass. R., 272. Cummings v. Cummings, 8 Watts, 366.

      2. That the natural duty of supporting legitimate children, in their infancy, rests equally upon both parents.
    3. That, upon the termination of the coverture, by divorce, this legal liability, as between the divorced parties, adheres to the one to whom the reciprocal rights of obedience and subjection appertain, so long as that one has means to apply. As between the divorced parties, and the public, either parent is liable for the support of the children, upon the incapacity of the one upon whom the primary liability rests, and the manner of enforcing the rights of the public is pointed out, in the statute. Stat. 1849, p. 540. And the parent, upon whom the liability primarily rests, if unable to support the children, either wholly or in part, may oblige the other parent to contribute, by means of the same statute, and in no other way.
    4. That, where the mother, upon her application to the superior court, has obtained a divorce with alimony, and the care, custody and education of the children; if she, after such decree, and compliance therewith on the part of the husband, furnish support for the children, without making any demand of the father, she can not recover of him therefor, in any form of action. Shelton v. Pendleton, 18 Conn. R., 417. Hardship is thereby imposed upon no one. If the wife is utterly unable to support the children, she can, by her application to the county court, throw the burden upon the husband. If she be partly able, she can, in the same manner, force him to contribute.
   Church, C. J.

In the discussion of this case, we may

allude to principles not necessarily involved in its decision; but we wish to determine definitely no other question than the one presented by the record before us; and this is, whether the mother of these children can sustain this action at law, against her divorced husband, to recover the entire expense of their support, furnished by her, upon the claim, that he alone is liable for it, under the peculiar circumstances of this case.

The question is not, what are the reciprocal rights and duties of these parents and children, as respects each other ; but, what are the duties of these parents as between themselves ?

We know of no principle of the common law, nor of natural equity, upon which the position, relied upon by the plaintiff, can be sustained. The case discloses nothing, from which we can infer, or presume, that the mother is not of equal pecuniary ability with the father, to maintain their common offspring, nor whether the father has adequate ability to do it. There is a law of our universal humanity, as extensive as our race, which impels parents, whether fathers or mothers, to protect and support their helpless children. It is a duty common to both, and the consequent obligation is common. Blackstone very properly says, that “ the duty of parents to provide for the maintenance of their children, is a principle of natural law. By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed, shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.” This duty, and this obligation, have been variously modified, by the positive laws of civilized countries, but fully recognized by all.

Connected with this obligation of maintenance, there is a parental privilege. The parent is entitled to the custody and care of the child, which he sustains, and -to such service as it can render; and he has a right to exercise his own discretion, in determining the fitness and necessity of the allowances to be made, and of the support to be furnished to his children, for which he is to be made chargeable. 1 Bl. Com., 453. 2 Kent Com., 192. Reeve Dorn. Rel., 290, note. Bainbridge v. Pickering, 2 W. Bl., 1325. Seaborne v. Maddy, 38 E. C. L., 194.

The parental legal obligation to support children, by the law of England, is enforced by statute provisions. The Stat. 43 Eliz., Ch. 2, directs, that “the father and mother, grandfather and grandmother, of poor, impotent persons, shall maintain them, if of sufficient ability, according as the quarter session shall direct.” 1 Bl. Com., 448.

A statute of our state is nearly a transcript of the English statute on this subject, and enacts, that poor persons shall be taken care of and supported by such relations as stand in the line of father and mother, grandfather and grandmother, children and grandchildren, if they are of sufficient ability, which is to be done by order of the county court. Neither in England, nor in this state, are there any other statute provisions, enforcing the parental duty of support, that we are aware of; and these extend to the mother, as well as the father, upon the principle to which we have before alluded, that this duty is common and equal to both ; and they embrace as well minor as adult children. 2 Kent Com., 192.

The legal liability of the parent necessarily depends upon his, or her, ability to furnish the maintenance. 2 Kent Com., 192. Billingsly v. Critchett, 1 Bro. Rep., 268. Cooper v. Martin, 4 East, 76. Reeve Dom. Rel., 283. So long as the parents are both living, and continue in a state of coverture or marriage, the civil or legal liability of the mother to furnish pecuniary aid or maintenance to her children, is suspended or postponed; because, as is said by Kent, in his commentaries, vol. 2, p. 192, “When the wife, by her marriage, parts with her ability to maintain her children, she ceases to be liable. By her marriage, and while it continues, she has most effectually parted with her ability, and has transferred it, in many instances, to her husband. Her civil existence even, for many purposes, and for this especially, is merged in that of her husband. Her personal property has become his, and the use of all her real estate with it, so, as between themselves, as well as others, it is equitable and just, that thp whole burden of maintaining their children should be thrown upon him. But, even in such a case, a court of chancery, if the wife had a- competent separate estate, and the husband or father had none, might decree a maintenance by the mother. 2 Kent Com., 1-92.

We know of no regulation, in England or in this country, except the inability occasioned by coverture, or the want of pecuniary means, by which the equal natural obligation of the mother to maintain her minor children, who are too helpless to maintain themselves, is excused. By the civil law, this common duty of the parents was enforced. Taylor’s Elements of the Civil Jjaw, p. 383. 2 Kent Com., 188.

We advert, now, to the facts of this case. By the decree of divorce, the marriage between these parties was dissolved,— the connubial relation only : the parental relation between the parents and children was not thereby affected ; this remained, with all its duties and obligations, except so far as the rights of the father were taken away and transferred to the mother; and, along with these rights, as we think, corresponding and dependent obligations. It is the father alone, who can complain now, if anybody, and demand exemption from his former obligation of providing the entire support and maintenance of the children. At least, the equal obligation of these parties, as parents, by the dissolution of the marriage, yet exists. We have, therefore, a case, in which one of the parties, whose duty it is to maintain these children, and to contribute ’equally, so far as we know, to this object, is seeking to recover the whole expense of such maintenance, from the other. A statement of the claim, it would seem, would be sufficient to refute it. As a wife, this plaintiff was not legally bound to maintain these children; as a parent, she is, equally with the father. This is the position we assume.

Although this is an action on book, it is equivalent to, and concurrent with the common law action of assumpsit, for the same cause of action, and requires a contract or promise, express or implied, for its support. The facts of the case repel all implication of promise, or undertaking. The children have, by the action of the plaintiff, been taken from the defendant; without his consent; she has sought for, and obtained, the custody of them, and their services, in opposition to the will of their father, and has thus deprived him, not only of the present and prospective services of his children, but of all control over them, and of the right and power of advising and directing, in regard to the amount and fitness of the support which he is called upon to pay for.

We have seen how far the statute laws of the state interfere, to enforce the natural duty of protection and support, and that they do not reach such a case as this. We enquire now, does the common law ? Mr. Chitty, in his Notes to Blackstone’s Commentaries, vol. 1, p. 488, says : “ Though, independently of an express contract, or one implied from particular facts, a father can not be sued, for the price of necessaries, provided for his infant son, yet very slight circumstances will suffice to justify a jury, in finding a contract, on his part.” This position is believed to be supported by the entire current of English authorities, and, if any case, in this state or country, has seemed to oppose it, we think it has been, because the general duty and obligation of the parent to maintain the child, has been considered as equivalent to an undertaking. and promise, by a neglectful parent, to any third person, who has voluntarily assumed it; whereas such duty or moral obligation, should be viewed' only as furnishing a good consideration for a promise. Cook v. Bradley, 7 Con. 57. Mortimore v. Wright, 6 Meeson & Welsby, 482. Cited in 8 Law Reporter, 222; in which case, Lord Abinger, C. B, said: “ In point of law, a father, who gives no authority and enters into no contract, is nof liable for goods supplied to his son, while under age, any more than an uncle, a brother, or a stranger would be. The mere moral obligation upon a father, to maintain his child, (whieh I by no means deny,) affords no inference of a promise to do so.” In the same case, Baron Parke, says : It is a clear principle, that a father is under no legal obligation to pay his son’s debts, unless he has contracted so to do, except perhaps under the 43 Eliz., under which, under certain circumstances, he may be compelled to support his children, according to his ability. A mere moral obligation can impose upon him no such legal liability.”

In the case of Seabojne v. Maddy, 38 E. C. L., 194, it is decided, that, “ No one is bound to pay another, for maintaining his children,‘unless he has entered into some contract so to do. Every man is to maintain his own children, as he himself shall think proper; and it requires a contract, to enable another person to do so, and charge him for it, in-an action.” The following cases may be referred to, in support of the same general principle. Baker v. Keen, 3 E. C. L., 449. Huck v. Tollemache, 11 ib., 296. Rolfe v. Abbott, 25 ib., 400. Law v. Welkin, 33 ib., 193. Blackburne v. Mackey, 11 ib., 295. Gordon v. Potter, 17 Vermont R., 350. 3 Stephens, N. P., 2052. Nichelson v. Spencer, 11 Ga. R., 607. Whether there was here a promise, express or reasonably to be inferred from the facts, it would seem, at least, should have been submitted to, and considered by, the auditor. A divorced wife, who has taken the children from their father, stands in no more favorable position to recover, than a stranger, as we conceive. We do hot concede, that the parental obligation of maintenance arises solely from the consideration of natural affection ; but, somewhat, also, from the corresponding duty of obedience and service, due from the child to the parent. When the child is absolved from these filial obligations, without the parent’s consent, and does not perform them, how can it be said, that the obligation of the parent to maintain him still remains perfect ? If the selectmen, under the provisions of our law, should take a child from its parent and bind him an apprentice to another, thus transferring his duties away from the parent, could it be claimed, that the parent was still liable for support, or for necessaries furnished by a stranger, or by the master ?

The strongly urged argument, by the plaintiff, that the misconduct of the father and his unfitness to exercise parental control, throw a liability upon him to support his children, while in the custody and service of their mother, without his consent, has bad weight with us ; and yet we do not see how we can yield to it, consistently with the views we have expressed. This does not, in our opinion, discharge the mother from her duties, as parent; and the father is not, in this way, to be punished, and be made to assume an entire and sole responsibility, which morally and legally attaches to both parents equally. 0

The claim is, that the same principle governs here, as creates the liability of a husband to support a wife, who, by reason of his misconduct, has sought a refuge elsewhere. We think the distinction is obvious. The husband is solely liable to support his wife, chiefly by reason of the union and identity of husband and wife, and of his absolute and controlling rights 'in her estate. Her separate legal existence is merged in his, during the coverture, for this purpose; and the liability is as perfect, if he be poor, as if he be rich.

In the only case that we know of, in which such a claim as this has ever been sustained, Stanton v. Wilson, 3 Day, 37, reliance was essentially placed upon the fact, that the mother had, by the decree of divorce, been constituted guardian of the minor children, and so bound to support them. If, in this case, the mother can be considered as guardian, which is not certain, how does it follow, that she is bound to support the children, unless because she has voluntarily assumed to do so, by taking them from their father, without his consent ? A guardian has power over the person and estate of his ward; but no power, that we know of, to charge the person or estate of anybody else, for supporting him; and we can not but think, that the assumption of the court, in that case, that, because the mother was appointed guardian, therefore she was bound to support the children, and from the husband’s estate, was a non sequitur. If a guardian has custody and control, both of the person and the property of the child, his duty is, to appropriate the property for its support. Is there any legal obligation upon a mere guardian of the person, to support a ward without property ?

It seems to a majority of the court, that the sole obligation of supporting the children, which was thrown upon the husband and father, by the state of coverture, is essentially changed, or modified, by the dissolution of the marriage. And now, their pecuniary condition and ability may be equal, or otherwise. The mother may have ample means, and the father none, and in such case, surely, it would be inequitable, to charge the father with the entire maintenance of the children, while they remain in their mother’s service, and under her exclusive control; and we do not believe the common law imposes any such obligation.

Of course, a majority of the court will advise, that judgment be rendered in favor of the defendant.

In this opinion, Waite and Hinman, J’s, concurred.

Ellsworth, J.

I see no occasion for reversing the decision of Stanton v. Wilson, so. well considered by a court of distinguished and unsurpassed ability, and which, so far as my knowledge extends, has ever been satisfactory to the judges and the profession: and for myself, I must say, it appears to be sustained, by principles entirely satisfactory, and as old as the common law itself.

The divorce of parents, has not, of itself, in a legal point of view, any effect whatever upon the subsequent character and position of the children ; such is not the purpose contemplated, nor the appropriate consequence following. The father’s duties and rights remain, as before, except so far as the divorce, of necessity, or by implication, prescribe a restricted or limited qualification. But the divorce prescribes none. No matter which parent sues for the divorce, nor which, as against the other, is entitled to obtain it; there certainly appears to be no reason, why its consequences should reach beyond themselves, to their issue. The father was alone liable for the necessaries of his children, before the divorce, and why not equally so, after ?

It is true, that by statutory provision of this state, if the wife, at the time of the divorce, or at any subsequent time, can satisfy the court, that the father is an unfit person to have the care of the children, so that by reason thereof, their safety and well-being are endangered, then, on their acccount, the court may proceed to make an order, that the mother shall have the care and custody of the children. But this is no part of the divorce, nor any necessary effect of it, nor has it any certain duration, and the father may procure the order to be suspended or modified, or reversed, as soon as he becomes virtuous, and can satisfy the court, that he will discharge the duties of a father. Until then, the court may well appoint the mother, or some other meet person, to be guardian of the children, for the purposes already mentioned; and when appointed, she is no other than a statute guardian for those purposes. But, we ask, is this to be done at her expense ? Is the father, by reason of his abuse of his wife,to be released from the obligation of supporting his children ? Besides, it should be considered, that the alimony given to the divorced wife, is given for her support, and not theirs ; and no court, in fixing the proper sum for alimony, has a right to take into the account, the children of the marriage, respecting whom there may, by possibility, be an order of the court, founded upon their necessities.

The necessity of an order, of itself, implies, that the father’s relations to the children are unchanged and untouched, by the decree of divorce, for, why else procure jpi order for their care, custody and education ? The order unnecessary, if the mother has a common law right to them, or can be compelled to support them, as one of the parents ? Suppose the children become sick, or lame, or destitute, are they not to be provided for, as before ? and if they are, by whom, I ask, is it to be done ? By the father, certainly. Such is the common law, everywhere, so far as my knowledge extends, and it is quite unimportant for this purpose, whether we consider the children as continuing to live with their father, or as driven out from his family, by his brutal conduct, (as is indeed virtually the fact, in this case,) or by reason of his intemperance, or other wickedness, it has become necessary for the court to interfere, for their comfort and safety. What are the children of divorced parents to do, and what is to be done with them? Whose children are they? On which parent are they to call, for assistance ? Surely, these are important questions, both to the children themselves, and the public at large : and it is not possible, that a decree of divorce makes the parents equal proprietors of their children, or equal in authority, or control. If so, how would it be, if the divorce is granted for the misconduct of the wife ? Does the husband, in that case, lose his children likewise ? and yet it is so, if a divorce, of itself, makes the parents independent and equal proprietors of their offspring. I can not believe that any father, be his conduct toward his wife what it may, or his wife’s toward him, whether they live together or not, or are divorced or not, can successfully claim, that, at the common law, the mother is bound, either jointly or severally, to support the children; nor can I perceive, that the temporary order of the court presents this question in a different point of view. The order is not the material thing; it neither creates nor destroys the duty of the father, and I do not understand, that the majority of the court make the case to turn on the fact of an order; but, unless I misapprehend, on the broad principle, that, after the divorce, each parent is bound equally to discharge this common law duty, and I should argue, of course, are to be equal in their other relations of rights and duties, to their children. It is, I suppose, on this ground, that they hold, that the performance of this joint duty by the mother, will not give her a right of action at law, against the father, but each one’s proportion must be settled, from time to time, in a court of equity, according to the existing circumstances and ability of the respective parties. This distinction appears to me to be entirely novel and unnecessary, although it is of the first importance, in this portion of the domestic relations; and if I mistake not, the adoption of it, as a rule of law, will require our courts to assume the character of perpetual guardianship over all minor children, whose parents are divorced. I see nothing in the nature of this case, which justifies any such principle of law; and certainly there is no adjudged case or elementary writer in support of it. It is equally singular and novel, that, out of a divorce there should spring an equality of parental authority and legal obligation. On the other hand, I must think, that the father remains the father still, the only parent known at the common law, to be liable to support and take care of the children; alone entitled to their services, their possession, their control and their obedience, except just so far as the order of-the court works a change or modification; which I have shown it does not, as to their necessary support. This I take to be the law, fully maintained, in 1 BÍ. Com., 478; 2 Kent; 161; Reeve’s Dom. R., 295, 320, 324; 2 Mass. R., 418, and numerous other books, where the common law rights and duties of the father toward his children, as universally understood and acted upon, are stated and illustrated, while no such rights and duties are anywhere mentioned, as appertaining to the mother.

if this old-fashioned rule of law is not just and satisfactóry to judges, or, if it is not as applicable to society now as it was before the marital rights of husband and wife were affected by modern statutes, in relation to her property, then, I say, let an application be made to the legislature, to grant the necessary modification and relief, but not to the judges who, in order to meet the exigency of this class of cases, are in danger of subverting the fundamental principles applicable to the relation of parent and child.

In this opinion, Storks, J., concurred.

Judgment for defendant.


source: Caselaw Access Project

author: Waite, J.

license: Public Domain

text:
    Lockwood and others vs. Lockwood and others.
    The action of book debt will not lie for the use and occupation of real estate, where there has never been an actual occupancy; but when the defendant has actually occupied, during a portion of the period for which the plaintiff claims to recover, such action is the proper remedy, to recover such compensation as the plaintiff may be entitled to.
    Where a party enters into possession of real estate, as tenant of the owner, under an agreement which is invalid, by reason of the statute of frauds, or for other cause, and continues in such possession, paying yearly rent therefor, which is received and accepted as such,he becomes a tenant from year to year, and may be considered as holding, according to such agreement, which, in an action to recover an unpaid balance of rent, may be resorted to, as evidence, for the purpose of calculating the amount for which he is liable.
    If such tenant from year to year, abandons the occupancy of the demised premises, before the expiration of a year, without the consent of the landlord, he will not thereby exonerate himself from the payment of the rent for the residue of the year; nor will he be so exonerated, by the neglect of the landlord to make repairs, when there was no agreement to keep the premises in repair, and their condition, when left, was not materially different from what it was, at the commencement of the year; nor by reason of inconsiderable injuries occasioned by fire, where no demand is made upon the landlord, to repair such injuries. r

    This was an action of debt on book. The cause was referred to an auditor, who made a special report, in which he stated, that the plaintiffs’ account consisted of a single item, for the rent of a store, from June 7th, 1850, to April 1st, 1851, at the rate of $120 a year. The store was situated in Norwalk, and owned by the plaintiffs, as heirs at law of their father, Buckingham Lockwood, who died, February 18th, 1850. On the first of April, 1840, it was by him rented to one Bennet, who occupied the same under a parol lease, as tenant from year to year, at the rate of $120, payable quarterly, until the 7th of November, 1847, when he transferred his lease to the defendants, to be occupied by them, on the same terms, as in the original lease to him; and the deceased received rent of them, and accepted them as his tenants, on the aforesaid terms. They continued to occupy the store, under the deceased, during his life, and under the plaintiffs, until the 22d of July, 1850, when they left the store, and it remained vacant, during the residue of the term. The rent was paid to the deceased, until November 7th, 1849, and to the plaintiffs, from that time to the 7th of June, 1850. There was no change of the time when the lease from year to year should commence and terminate, and it remained the same as when Bennet occupied.
    The defendants claimed, that they had a right to quit the store, before the term expired, and were not liable to pay rent afterward, because it was. out of repair, and not tenantable, and the plaintiffs knew it, and neglected and refused to make the necessary repairs.
    There was no express agreement ever made by the deceased, or the plaintiffs, to keep the store in repair, and the plaintiffs claimed, that the law imposed no such obligation upon them, and objected to any evidence, to prove that the store was out of repair.
    The auditor admitted the evidence, subject to the opinion of the court, and found, that the store was old and decayed, that the roof leaked, the stoop was decayed, a cellar window and shutter were gone, at the time the defendants took the lease from Bennet, and the defendants knew it, and the condition of the store. In August, 1849, the deceased authorized the defendants to make such repairs as seemed indispensable, and they did so, and their bill of repairs was allowed, in the settlement made November 7th, 1849. On the 8th or 9th of July, 1850, the cellar stairs took fire, and were partly consumed ; but no other part of the store was burnt, and, in extinguishing the fire, some of the windows and window shutters were injured, and some other damage was done to the store; but the injury was not very serious, and might have been repaired in a short time, and, without much expense, and it was necessary that it should be done, as without it, the goods in the store were not safe. The plaintiffs knew that repairs were necessary, but did not make them, and were not requested, by the defendants, to make them.
    On the second day after the fire, the defendants hired another store, and, soon after, commenced removing their goods, and having removed them, ón the 22d day of July, 1850, tendered to the plaintiffs, the sum of sixteen dollars, for the rent from June 7th, to that time ; and also, the keys of the store, both of which the plaintiffs refused to accept. The store was in as good repair, until the fire, as it had been, at any time while the defendants occupied it, ordinary usage excepted.
    If, in the opinion of the court, the evidence objected to as aforesaid, was admissible, and from the facts stated in the report, the defendants were not liable for the rent, after they quit the premises, then the auditor found the issue in favor of the, defendants. But, if the court should be of opinion, that the evidence was not admissible, or if said facts are an insufficient defence against the plaintiffs’ demand, then the auditor found the issue for the plaintiffs, and $109.44 damages.
    At the term of the' superior court, holden in Fairfield county, in April, 1853, the case was reserved for the advice of this court.

      Butler and Garter, for the plaintiffs,
    contended, 1. That the legal relation of landlord and tenant, existed between the plaintiffs and defendants; the defendants being tenants, from year to year. 1 Sw. Dig., 91,132. A tenancy from year to year, until it is determined by a notice to quit, is the same as a tenancy for years. Izon v. Gorton, 35 E. C. L., 201. Bacon v. Brown, 9 Conn. R., 338.
    2. That the auditor’s report found, that the landlord never bound himself to repair, and, if there is no agreement to repair, the tenant takes the premises, for better or for worse. Fowler v. Bott, 6 Mass., 63. Westlake v. Degraw, 25 Wend., 669. Mumford v. Brown, 6 Cow., 476. Cleves v. Willoughby, 7 Hill, 83. Hart v. Windsor, 12 Mee. & Weis., 68.
    3. That there is no implied warranty, in this case, that the premises shall be fit for any specific purpose. The tenants used them for such purpose as they chose ; and that purpose is not disclosed in the finding. The duty to make necessary repairs devolved upon the tenants, as incident to the relation. 4 Kent’s Com., 110.
    4. That no demand, or refusal to repair, is claimed ; and the plaintiffs had a right to presume, that the defendant^ would make the necessary repairs, as tenants ; or because they were rendered necessary, by their own negligence.
    5. That the defendants have not shown, that the fire was not caused by their own negligence. The presumption is against them, and they have not rebutted it. In Izon v. Gorton, the apartments were consumed by an accidental fire; and yet the tenants were holden liable for the rent.

      Button and Ferre, for the defendants,
    contended, 1. That in this state, book debt, for the use and occupation of real estate, is a statutory remedy, and only concurrent with general assumpsit. Stat. 1849, p. 112. Beach v. Mills, 5 Conn. R., 443. The latter remedy is authorized by the common law of this state,-where there has been an actual occupancy. in England it is founded entirely upon the statute; not having been maintainable there at common law. Gunn v. Scovill, 4 Day, 228. Cleves v. Willoughby, 7 Hill, 83.
    A parol tenancy from year to year, in this state, confers upon the tenant no such “holding,” as the English cases recognize. Here, the landlord may, at any time, make entry, and maintain ejectment; and the tenant is remediless at law. 1 Sw. Dig., 137. Benedict v. Benedict, 5 Day, 475. Eaton v. Whittaker, 18 Conn. R., 231. The tenant cannot plead a license ; for that creates only an estate at will, which is determined by the entry. He can not give in evidence his parol lease, for that is void, by the statute of frauds. Comes v. Lamson, 16 Conn. R., 246. There being, then, no “ holding,” and no actual occupation, no basis is left for this action.
    2. That it is a defence to an action of assumpsit, for use and occupation, to show an abandonment of premises, by the tenant, where, through the default of the landlord, the tenant could have no beneficial occupation of the premises. And, where such occupation is rendered impossible, by fire, lightning, or any cause of like nature, the refusal or neglect of the landlord, to put the premises in repair, constitutes such default. Edwards v. Hetherington, 16 E. C. L., 271. Salisbury v. Marshall, 19 id., 275. Smith v. Marrable, 41 id., 263.
   Waite, J.

It has been holden, that, in this state, an ac-

tion of indebitatus assumpsit may be sustained, upon an implied promise, arising out of the use and occupation of real estate, by permission of the owner, without proof of any express promise to pay rent. Gunn v. Scovil, 4 Day, 228. And, by a recent statute, the action of debt on book, was made a remedy, co-extensive with the action of general assumpsit. Statutes, title 1, sect. 221.

In the first place, it is claimed, that this action can not be sustained, unless there has been an actual occupation of the store, by the defendants,—and this is undoubtedly true; and so are the authorities. How v. Kennet, 3 A. & E., 659, (30 E. C. L., 175.) Richardson v. Hall, 1 B. & B., 50, (5 E. C. L., 14.) But it is expressly found, by the auditor, that, during a portion of the period, for which the plaintiffs claim to recover, the defendants were, in the actual occupation of the premises, and the question rather is, what measure of compensation the plaintiffs are entitled to receive, for such occupation, in the manner, and under the circumstances, detailed in the report. It is also found, that they were tenants from year to year, at a stipulated rent, and had so been, for several years,—and that, within four months after the commencement of the year, they abandoned the store, without the permission of the plaintiffs, and it remained vacant until the end of the year. What measure of compensation are the plaintiffs entitled to receive, for such an occupancy ?

The defendants say, only such a proportion of the rent, as the period of their occupancy bears to the whole year,— and this amount they have tendered to the plaintiffs. But to this proposition, we can not, upon any principle, yield our assent. The plaintiffs. may well say that, in heno fondera non venimus. We leased you the store, at a specified rent, for a year, but we never agreed, that you might occupy it one-third of a year, for a corresponding proportion of the year’s rent. A contract for the rent of a building for a year, at a specified price, does not imply an agreement, that the tenant may occupy it, for such portion of the time as he pleases, at a proportioned rent.

In a similar case, Littledale, J., said: Under the contract between these parties, the rent was payable half yearly, for a half year’s occupation. That was an entire contract, and could not be apportioned, without the assent of both parties.” Hall v. Burgess, 11 E. C. L., 246.

So in another case, where the rent was payable quarterly, a dispute having arisen between the landlord and tenant, the former said to the latter, before the expiration of the quarter, that he might leave the premises, which he accordingly did. The landlord afterward brought a suit, to recover rent for that portion of the quarter, during which the premises had been occupied by the defendant, and it was holden, that he was not entitled to recover. Bailey, J., said : “ The parties having entered into an express contract, by which the rent was to be paid quarterly, I think the law will not imply a contract to pay rent, for any period less than a quarter.” Grimman v. Legge, 15 E. C. L., 229. Even if the defendants were not liable for the whole year’s rent, at the stipulated price, justice requires, that they should make a fair and reasonable compensation to the plaintiffs, for the use of their property, in the manner- they held it, and that compensation might be much greater than a portion of the rent corresponding with the time the building was occupied. A man might much rather let a house or store to a tenant who would occupy it for a year, than to another, upon the same terms, who would abandon it, at his pleasure, leaving it to stand empty during the residue of the year, and at a time when no other tenant could be found to occupy it, upon any terms.

But, however this may be, the rule seems now to be perfectly well settled in England, that a tenant from year to year, can not, without the consent of his landlord, abandon the possession of the demised premises, at any time he pleases, during a year, and thereby exonerate himself from the payment of the rent, during the residue of the year. Thus, in an action for the use and occupation of two upper floors, in a warehouse, it appeared, that the defendants had occupied them at a specified rent, payable quarterly,from August, 1830, to November, 1834, when they were accidentally consumed by fire, and the defendants ceased to occupy them ; they were afterward repaired by the plaintiff, and leased to another tenant, with the consent of the defendants. Two questions were made ; the first was, whether the defendants were liable for the rent, from November, 1834, when the fire occurred, to March, 1836, when the premises were leased to another, by the plaintiff.

Tindal, C. J., in delivering the opinion of the court, said ; If there had been an agreement in writing between the parties, for a term of years, no question could have been made, but that the term of years still continued: and a tenancy from year to year, is, as to its legal character and consequences, the same as a term for years. We think, therefore, the defendants continued tenants of the plaintiff, until the tenancy was put an end to, by the plaintiff’s letting the premises to another tenant.” And, in relation to the other question, he held that the action was well brought, and said that “ the cases referred to in the argument, in which the tenant had been allowed to withdraw himself from the tenancy, and refuse payment of rent, would be found to be cases, where there had been either error, or fraudulent misdescription of the premises, which were the subject of the letting, or where the premises had been found to be uninhabitable, by the wrongful act, or default, of the landlord himself.” Izon v. Gorton, 35 E. C. L., 198. 1 Sw. Dig., 91.

It is true, that, in the case last cited, the judge, in giving his opinion, that the action would lie, laid much stress upon the word holden, in the English statute. But we apprehend, that our action of assumpsit, for the use and occupation of real estate, is as broad and comprehensive as the same action in England. • We see no reason why it should not be. It is founded upon the liberal principles of our common law, unrestricted by any limited expressions of a statute. It will lie in all cases, where there has been an actual occupancy, by the tenant, of lands, by permission- of the owner, under a parol contract, express or implied, to pay rent, although the amount to be paid for such occupancy may be greater or less, according to the circumstances under which it was had. And, in another case, where the executors of a lease, for a term of years, had underlet, and were unable to get the tenant out, at the expiration of the term, it was holden, that they were liable only for the rent, during the time the landlord was kept out of possession. But, Littledale, J., remarked, that “ if the original tenancy had been from year to year, they would have been liable for a whole year’s rent.” Ibbs v. Richardson, 9 A. &. E., 849, (36 E. C. L., 301.) So in Penero v. Judson, Gaselee, J., said, “ Parties have repeatedly been held liable, in actions for use and occupation, although there has not been an actual occupation, for the whole term, in respect of which the actions were brought. 6 Bing., 206. (19 E. C. L., 56.)

The same doctrine has been recognized by our own courts. And in an action of assumpsit for the use and occupation of a store, it was holden, that, if a tenant, after the expiration of a lease, for a year, holds over, the law considers him responsible, as hiring for another year, upon the same terms as before. And if, during the continuance of a tenancy, the tenant abandons the possession of the premises, he is as much liable for the rent, as though he had continued his occupancy. Bacon v. Brown, 9 Conn. R., 334.

It is, in this case, expressly found by the auditor, that the defendants were tenants from year to year. And if we were called upon to review that finding, we should come to the same result, from the other facts embraced in the report. For the authorities show, that, if a tenant enter into possession of real estate, as tenant of the owner, under an agreement, invalid by reason of the statute of frauds, or other cause, and continue in such possession, paying rent for the same, at the end of each year, and the rent is received and accepted, as such, by the owner, the tenant becomes a tenant from year to year, and he may be considered as holding, according to the terms of that agreement, and it may be resorted to, for the purpose of calculating the amount of rent. Berry v. Lindley, 42 E. C. L., 263. Mann v. Lovejoy, 21 id., 454. DeMedina v. Polson, 3 id., 21. Hamerton v. Stead, 10 id., 159. Clayton v. Blakey, 8 T. R., 3. Weaver v. Belcher, 3 Esp. R., 448. Martin v. Watts, 2 id., 501. Admitting, therefore, all the evidence in the case, the mere fact, that the defendants abandoned the occupancy of the store, before the expiration of the year, will not exonerate them from the payment of the rent, for the residue of the year. Are they excused, by reason of the want of repairs on the store, or the injuries occasioned by the fire ? It is found, that there was no agreement, on the part of the plaintiffs, to keep the building in repair, and, that the condition of it, when the defendants left, was not materially different from what it was, at the commencement of the year, with the exception of the ordinary decay, and the damage at the time of the fire. If, therefore, the defendants had intended to leave the store, because it was not in sufficient repair, they should have done so, at the commencement of the year. And then as to the fire, it is clear, from the English authorities, that they are not exonerated on that account. Baker v. Holtpzaffell, 4 Taun., 45.

Whether any different rule prevails in this state, we do not deem it necessary to enquire, as the injuries occasioned by the fire, were too trifling to justify the defendants, in abandoning the possession on that account, especially as they made no demand of the plaintiffs, for the repair of the store.

We are, therefore, of opinion, that the plaintiffs are entitled to judgment in their favor, and so advise the superior court.

In this opinion, the other judges concurred.

Judgment for the plaintiffs.


author: Storrs, J.

text:
    The Danbury and Norwalk Railroad Company vs. Wilson.
    It was provided, by the fourteenth section of the charter of a railroad corporation, granted in 1835, that such charter was to become void, “ If said company shall not expend the sum of fifty tho'usand dollars upon said railroad, or way, within four years after the passage of this act.” Nothing having been done under such charter, the legislature, in 1846, passed a resolution, by which it was renewed, and which provided, that if said company should not expend the sum of $50,000, upon said railroad, as was prescribed in said fourteenth section of the original charter, within two years from the rising of the general assembly, at which said resolution was passed, or if they should not complete and put in operation a single, double or treble way, as authorized in said charter, within four years after the rising of said general assembly, then the rights, privileges and powers of said corporation should be null and void. Held, that said company were required both to expend said sum of $50,000, and to complete their said road, within the times respectively provided therefor.
    Where, however, after more than two years from such rising of the legislature, no part of said $50,000 having been expended, and previous to the session of the legislature of 1850, there were subscriptions to the stock of said company, by the defendant and others, severally, and said company was organized and directors chosen, of whom the defendant was one, and, subsequent to such organization; the legislature, in 1850, again revived and renewed said charter, and extended the time limited in said fourteenth section, and after such renewal, a meeting of the stockholders was convened by the commissioners, in which the defendant took part, and at which a director was chosen, in the place of one who had resigned, and six new additional directors were chosen, and at a subsequent meeting of the directors, on the same day, at which the defendant was present, an installment was laid on the stock subscriptions: it was held, that such notice of the commissioners, the meeting of the stockholders, and the choice of directors, amounted to an acceptance of the charter, as renewed in 1850, and was a recognition and confirmation of all the preceding steps, which resulted in the organization of said company, and constituted a new organization, as at the time of said last meeting.
    In an action to recover unpaid assessments upon shares of the stock of a railroad company, where it appeared, that the defendant was a party to, and co-operated actively with, other subscribers, and the commissioners, in the organization of the corporation, and participated in all the proceedings which led to it,—was one of the earliest and largest subscribers to the stock, and induced others to subscribe to it,—accepted the office of director, and acted as such, in the meetings of the directors, and in the meetings at which the installments were laid, and the time of payment thereof extended ; it was held, that he was precluded from disputing the validity or regularity of the steps taken in the organization of the plaintiffs, as a corporation.

      By subscribing to the stock of a railroad corporation, on the terms mentioned in the charter, and the allowance of the shares subscribed for, the relation of stockholder and company is created, from which the law implies a promise, by such subscriber, to pay installments ordered by the directors, pursuant to the charter.
    It is not a sufficient reason for refusing to pay such installments, that the corporation was not organized, until after the defendant had subscribed for such shares.
    The title which a party acquires to the shares in a corporation,' subscribed for by him, is a good consideration for an express promise, on his part, to pay assessments, legally laid thereon.
    Where the whole amount of stock subscribed for, in a railroad corporation, did not exceed the capital to be raised, and the commissioners received a subscription to the stock, from the defendant, and assented to his acting as a stockholder, in the meetings of the corporation; it was held, that a formal assignment by the commissioners, of shares subscribed for by the , defendant, was not necessary.
    Where a vote of the directors of such corporation, requiring installments, directed that they should be paid, at the times therein designated, but did not, in terms', make them payable to the treasurer of such corporation ; it was held, that the import of such vote was, that said installments were payable to the treasurer, he being the proper officer to receive and keep the moneys of the corporation.
    The design'of the provision of the general railroad act, “ That the president and directors of railroad corporations may direct the assessments on the shares to be paid to the treasurer, in such manner and with such notice as may be prescribed, by the by-laws of said corporation,” was not to make the mode of notice, therein mentioned, exclusive of all others. And, therefore, where such corporation never passed any by-law, prescribing the mode of such notice, .and at the meeting of the directors, of whom the defendant was one, and at which he was present, and acted, laid an assessment, and directed the treasurer to give notice to the stockholders, by advertising in a newspaper, published in the town where the defendant resided; it was held, that the defendant had waived the right to claim, that a by-law should be passed, prescribing the mode of notice.
    The sale of the shares of a delinquent stockholder, in a railroad corporation, to pay over-due assessments, upon such shares, is no defence to an action against him, to recover the deficiency.
    Such corporation having located their railroad according to law, afterwards, for a short distance, altered such location, the requisite steps being taken as to such substituted portion: held, that such alteration furnished no defence to a stockholder, in an action against him, to recover assessments on his stock.
    An agreement between the defendant and a third person, by which the former guaranteed to the latter, dividends, equal to six per cent, per annum, on his stock, and the latter agreed to subscribe for said stock, is admissible in evidence, for the purpose of showing, that the defendant procured others to subscribe to the stock of such company, and the inducements which he held out for that purpose.
    This was an action of assumpsit, brought by a railroad corporation, to recover the amount of certain assessments upon shares of the stock of such corporation, held by the defendant, as an original subscriber.
    The cause came on for trial, before the jury, at the term of the superior court, holden in April, 1853, at Danbury.
    The plaintiffs claimed to exercise corporate powers, under a charter granted by the general assembly of this state, in May, 1835, incorporating “the Fairfield County Railroad Company, for the purpose of constructing a railroad, from some suitable point in the town of Danbury, by the most direct and feasible route, to some suitable point, at tide-water, either in the town of Fairfield, or the town of Norwalk, as shall- be hereafter determined.” It was provided by the charter, that the capital stock of said company should be $200,000,. with the privilege of increasing the same to $300,000. The fourteenth section of the charter, provided, “ That, if said company shall not expend the sum of $50,000 upon said railroad or way, within four years, or if they shall not construct, complete, and put in operation, a single, double or treble railroad or way, as hereinbefore authorized, within six years after the passing of this act, then the rights, privileges and powers of said corporation shall be null and void.”
    The third section directed, that eleven commissioners thereby appointed “ shall open books, to receive subscriptions to the capital stock of said company, at such times and places, as they, or a majority of them, may appoint, and shall give such notice of the times and places of opening said books as they may deem reasonable, and shall receive said subscriptions, under such regulations as they may adopt for that purpose; and, if more than four thousand shares of stock shall be subscribed, they shall have the power to make the shares so subscribed, the capital stock of the company, provided they shall not exceed six thousand shares; and in case the subscriptions shall exceed six thousand shares, the same shall be reduced and apportioned, in such manner as may be deemed most beneficial to the corporation.”
    Nothing having been done under this charter, the legislature, in 1846, passed a resolution, by which it was “renewed and revived, with all the powers originally granted by said general assembly, and expressed in said charter, and all the powers and privileges incident thereto,” and appointed ten commissioners, “ to open the books, to receive the subscriptions to the capital stock, in lieu of the commissioners,” appointed in 1835, “ with the same powers, and subject to the same restrictions and regulations as were granted and imposed by and in said original charter ; and the times limited and set down in the fourteenth section of said charter or act of incorporation, for the laying out or expending of moneys upon said railroad or way, and for the completion of the same, be, and the same are hereby extended, and shall be deemed to commence, at the rising of this general assembly. And, if said company shall not expend the sum of fifty thousand dollars upon said railroad or way, as is prescribed in said fourteenth section, within two years from the rising of this assembly, or if they shall not complete and put in operation a single, double, or treble railroad or way,' as is authorized by said act of incorporation, within four years after the rising of this general assembly, then the rights, privileges and powers of said corporation shall be null and void.”
    After more than two years had elapsed, since the rising of the legislature, by which the charter was renewed, without any part of said sum of fifty thousand dollars having been expended, and previous to the session of the legislature in 1850, in February of that year, a majority of the commissioners of said railroad company, caused the following notice to be published in two newspapers, the Banbury Times and Norwalk Gazette:

    “ The commissioners, appointed by the general assembly of this state, to open the books, to receive subscriptions to the capital stock of the Fairfield county railroad, hereby give notice, that ive will attend to the business of our appointment, at Lyman Keeler’s hotel, in Danbury, on Thursday, the 28th instant, and Friday, the first day of March next, and at David Stevenson’s hotel, in Norwalk, on the first Tuesday and Wednesday in March next. The books will be opened from nine o’clock A. M., until nine o’clock P. M., on each of said days.
    “ P. S. It is expected that all persons who have expressed a desire to take stock in the road, will call upon the commissioners on the days appointed.”
    Signed by a majority of the commissioners.
    Danbury, February 23d, 1850.
    In pursuance of this notice, books were opened, and subscriptions received at the times and places specified. The commissioners afterwards adjourned to the city of New York, for the purpose of obtaining further subscriptions, and tWo of their number went to said city, with the books of the company, where the defendant subscribed for fifty shares of said stock. At the time of subscribing, the stockholders paid three-fourths of one per cent, on the amounts subscribed by them. Prior to June 7th, 1850, unconditional subscriptions to the stock of said company had been made, to the amount of $186,000. Other subscriptions had also been made, that were to be binding, only in case said road should be located in a particular direction, which, with the other subscriptions, made Up the amount of stock required by the plaintiffs’ charter. By a notice, published in two newspapers, the commissioners called a meeting of the stockholders, for the choice of directors, on the 7th of Juné, 1850. At the meeting, held in pursuance of such notice, an organization of the company was effected, and ten directors were chosen, of whom the defendant was one. At this meeting, a portion of the conditional subscribers were present, and voted for directors.
    Subsequent to said organization, the legislature again revived and renewed said charter, and extended tHe time limited in the fourteenth, section of the original charter, for the completion of the railroad, for three years from the rising of the legislature of that year, altered the name of the corporation, to “ The Danbury and Norwalk Railroad Company,” and resolved, that the said charter should be further amended, in all respects, in such a manner .as to conform to the general railroad law of this state, passed in 1849.
    In June, 1850, the said directors elected a president, vice-president, and treasurer of said company, and empowered them to appoint a secretary from the board of directors. Said road was located, in part, by the directors, in August, 1850, and was accepted and approved by the commissioners, October 15th, 1850. The remaining portion was subsequently located by the directors, and accepted and approved by the commissioners, on February 5th, 1851. By the latter location, the conditional subscriptions were so far rendered binding, as to make up the amount of stock required by the charter. In pursuance of a vote of the board of directors, passed March 27th, 1851, the location of said road, for a short distance, at the eastern end thereof, was changed, and such alteration approved by the commissioners, in April of the same year.
    In September, 1850, and after the last renewal of said charter, a meeting of the stockholders was convened, by the president and directors of said company, for the purpose of filling any vacancy in the board of directors, and, if deemed best, to add to the number of directors. Said meeting was duly called, by a vote of the board of directors, and notice thereof was given, by advertisement in the Danbury Times and Norwalk, Gazette.

      At this meeting, in which the defendant took part, a director was chosen, in place of one who had resigned, and áix new directors were chosen, in addition to the then existing number. Subsequently, on the same day, at a meeting of the president and directors, at which the defendant was present, an assessment upon the amount subscribed, of ten per cent., including the amount paid by the stockholders, at the time of subscribing, was laid and made payable on the succeeding 20th of October, and also assessments of ten per cent., payable on the first Monday of December succeeding, and of each succeeding month, until the whole amount of the subscriptions should be paid. Notice of these votes was given to the stockholders, by,.their publication in the Norwalk Gazette,—and the subscribers, residing in Norwalk and vicinity, were requested to make payment to William S. Larkum, the assistant treasurer. The defendant co-operated with the other directors, at the meeting last mentioned. Much evidence was also introduced, in regard to his presence, at subsequent meetings of the board, and active participation in the proceedings of the directors.
    The plaintiffs completed their railroad, as authorized by their charter, within three years after the rising of the legislature, in 1850.
    The plaintiffs offered in evidence an agreement between the defendant and one Stevens, dated the second day of February, 1850, to the admission of which the defendant objected : but the court received the same, subject to legal exception. Said agreement stated, that, “ Whereas said Stevens was desirous and willing to subscribe, and pay to said company, the sum of twenty thousand dollars, as a part of the capital stock of said company, provided he can be guaranteed and insured a dividend on the same, equal to six per cent., per annum, on said stock, for the term of twenty years, ensuing the date of these presents, and upon such terms, is willing and agrees to hold said stock for the term of twenty years ; and, whereas said Wilson, with a view of promoting the prosperity of said railroad, hath covenanted, and hereby doth covenant and agree, to and \yith said Stevens, to msure and guarantee to him, his heirs, executors, and administrators, that he or they shall receive an annual dividend on the said sum of twenty thousand dollars, so subscribed by said Stevens, to the capital stock of said company, of six per cent, per annum, for the said term of twenty years;” “that in consideration of such insurance and guarantee aforesaid, the said Stevens doth hereby covenant and agree to and with said Wilson, that he will forthwith subscribe his name to the capital stock of said railroad company, for the sum of twenty thousand dollars, and pay the same in such installments, and at such periods, as said company may require.”
    It was also stipulated, that said Wilson was to have the exclusive right of voting, on all necessary occasions, on one 'equal moiety of said stock, during said period of twenty years, and was to receive all dividends, during said period, over and above six per cent, per annum.
    For the faithful performance of said agreement, each of the parties bound himself, to the other, in the sum of ten thousand dollars. In pursuance of said contract, it was found, that Stevens subscribed for the $20,000 of stock.
    There was no evidence introduced, of any by-laws ever having been passed by said company, on any subject, excepting one, authorizing the directors to call special meetings of the stockholders, which prescribed no mode of notice.
    It was admitted that two, who were named as commissioners, never attended any meetings of the commissioners, or acted in that capacity ; and there was no evidence, that they were ever applied to, or notified to act, as such.
    The defendant having failed to pay the installments, laid as aforesaid, upon his stock, the same was legally sold, for less than the amount of such installments, and transferred to the purchasers. After the evidence had been received, by consent of the parties, the cause was withdrawn from the jury, and the court found the facts, which had been proved, and such other facts as were inferable therefrom, and reserved the question, as to what judgment should be rendered thereon, for the advice of this court.

      Dutton and Averill, for the plaintiffs,
    contended, 1. That the defendant, at the beginning of this enterprise, was active in prosecuting it, subscribed to the stork, and guaranteed six per cent, dividend, on a subscription of large amount; and that many persons, of less means, subscribed, because he did. He was elected a director, at the first meeting of the stockholders, and acted as such ; and he now brings no proof of any wrongful act, committed either by the company, or by any member of it, and relies upon a technical objection, to avoid the payment of the installment, which he assisted to lay upon his own stock.
    2. That the plaintiffs have complied with the requirements of their charter. By the renewed charter, $50,000 was to be expended, in two years, or the road was to be completed, in four years from the rising of the general assembly. If either had been done, the terms of the resolution would have been complied with.
    The commissioners, named in the resolve of 1846, were appointed in lieu of those named in the original charter, and had the same powers; and they, or a majority of them, had power to act; to give notice; to open books; to receive subscriptions ; to call the first stockholders’ meeting, for the choice of directors ; and declare who are elected. This a majority have done. Private Laws, 998. Crocker v. Crane, 21 Wend., 211.
    3. That the caption of the subscription, signed by the defendant, shows, explicitly, that he subscribed not only, “ upon the terms, cbnditions, and limitations, mentioned in the charter,” but on “ such further terms, conditions, and limitations, as might be expressed in any resolution of said general assembly, amending, altering, or renewing said charter.”
    The resolution of 1850, renewed, revised, and altered the charter, and changed: the name to the Danbury & Norwalk Railroad Company, and under the renewed charter, the directors were elected, and the company duly organized. Ex parte Murphy, 7 Cow., 153. 19 Wend., 635.
    4. That it is not necessary that all the directors shall be present, or be notified to be present, to constitute a legal meeting. They, as a majority, may act, and have power to lay installments, and direct the time and manner of payment. The defendant was present, and acted, in laying the installment in this case. The defendant is estopped from denying his liability. Chester Glass Co. v. Dewey, 16 Mass., 94. Welland Canal v. Hathaway, 8 Wend., 483. Salem v. Williams, 9 Wend., 147. Dezell v. Odell, 3 Hill, 215. Frost v. Saratoga Ins. Co., 5 Denio, 154. Reynolds v. Lownsbury, 6 Hill, 534. Kinney v. Farnsworth, 17 Conn. R., 355. Roe v. Jerome, 18 Conn. R., 139. Cowles v. Bacon, 21 Conn. R., 451. The Middletown Bank v. Jerome, 18 Conn. R., 443. The H. & N. H. R. R. Company v. Croswell, 5 Hill, 383. Stanton v. Wilson, 2 Hill, 153. 7 Barber, 157. 1 Wend., 98.

      Hawley, for the defendant,
    contended, 1, That the persons who acted as commissioners, had no authority, as such, to act; the charter being, at that time, by its own terms, extinct. If they had possessed authority, the whole number must have acted, or at least, been notified to act. with the others. Two of such commissioners never acted, nor were they notified to act.

    2. That the mode in which subscriptions were obtained, was objectionable. Those who acted had no power to appoint agents to itinerate in subscriptions. The charter requires the commissioners to appoint times and places, &c., and contemplates only such subscriptions as should be made, on opening books according to the charter, and after the charter was obtained. Hence the subscriptions, so called, derived no validity from any authority in those who obtained them, no more than if obtained by any other person or persons. No subscriber could, on the organization of the company, have established a claim to be a stockholder, on the strength of his subscription. 1 B, & P., 235, 236. 8 East, 319, 228. Angelí & Ames, 457. 20 Conn. R., 332. 18 Conn. R., 197. 2 Pick., 355.
    3. That the subscriptions were themselves entirely void; for the subscribers only professed to take stock at the time of subscription, when there was no company in existence, in which stock could be taken. If they can be regarded (which is denied) as promises to take stock in future, they are void, for want of consideration and want of a promisee. See Angell & A., 478, 481, & n. 490. 6 B. & C., 341, (13 E. C. L., 195.) The reference to subsequent alterations in the charter, does not help the plaintiffs, for that does not supply either consideration or promisee. An agreement to become a stockholder, in any kind of company the legislature might (at any time hereafter) create, would not be obligatory; and no such alterations as those effected by the resolution of 1850, and the general law on the subject, could have been contemplated.
    4. That the case is not varied, by any of the conduct ascribed to the defendant. That he was'appointed a director, or ever acted as such, does not conduce to show him a stockholder, for neither the charter nor the law requires, that the directors be stockholders. A reference to the charters of banks, manufacturing companies, turnpike companies and railroad companies, will show, that whenever the law requires that officers be stockholders, it requires it by express enactment. If this subsequent conduct of the defendant could help out his subscription, the declaration should be framed accordingly. The plaintiffs go entirely on the ground of a subscription, at the opening of the books; and if they claim, that he is liable, by reason of his subsequent conduct, they should declare accordingly. The mode in which he became a stockholder, should be shown. It nowhere appears, that the company has done an act, or incurred the least expense, in reliance on the defendant’s subscription.
    5. That the subscriptions never had the sanction of the commissioners,—certainly not of all of them.
    6. That the stockholders’ meeting, (June 7th and 18th) was irregular, and all its proceedings void. It was held, long before the rising of the assembly, which was June 22d ; and also before there was any power to organize, because there were not then subscribed $200,000,—only $186,000. The conditional subscriptions could not be regarded. They were not subscriptions.
    7. That the stockholders’ meeting at which additional directors were appointed, was irregular, because not warned, pursuant to any by-law. Stat., 1849, p. 33. The directors, then appointed, were not legal directors, and their action, with the others', in laying the installments, rendered the doings void. Angelí & A., 324, 325. The directors’ meeting, which the installments were laid, was irregular ; all were not present, nor notified to be present. The vote, laying the installments should, in terms, have made them payable to the treasurer of the company, and notice should have been given, pursuant to a by-law. Stat., 1849, p. 40.
    9. That the installments were laid, before the stock was full ; only $186,000 had then been subscribed. The conditions which render the subscription for the remainder, binding, were not performed till October 15th. The plaintiffs could not, lawfully, assess on less than $200,000, of positive, absolute subscription.
    10. That the sale of the defendant’s stock, (if he ever was a stockholder,) terminated his membership,—and there was no liability to a suit afterwards. Angelí & A., 482, 493, and cases cited.

      11. That the change of the route of the plaintifFs’ road, was illegal. The company, by its first location, exhausted its powers,—and that change absolved the defendant from any further liability.
   Storrs, J.

In this case, the defendant claims, in the

first place, that the neglect of the grantees of the original charter, under which the plaintifFs claim to possess and exercise corporate powers, by virtue of the renewals thereof, to expend fifty thousand dollars within two years after the rising of the legislature, in 1846, was a non-compliance with the resolution of that year, renewing that charter. The plaintifFs claim that, by the true construction of that resolution, it would have been a compliance with it, either to have expended that sum, within said two years, or to have completed the railroad, within four years after the rising of the legislature of that year; and that the resolution of 1850, again renewing the charter, dispensed with the completing of the road within said four years, and extended the time therefor, three years longer, within which latter time the road was completed: and that, therefore, there was no noncompliance as claimed, or, that it was excused. We do not accede to this construction of the resolution of 1846. Its phraseology is too explicit to admit of such an alternative meaning. Its true construction is, not that the company should either expend said sum or complete the road, at their option, within the times respectively prescribed therefor, but that they should do both of those things. Therefore, the charter, as renewed in 1846, was not, in those respects, complied with.

The defendant, thereupon, further claims, that, in consequence of such non-compliance, the rights, privileges and powers of the corporation, created and renewed as aforesaid, by the express terms of the charter and the resolution first renewing the same, became extinct; and that, therefore, there then ceased to be any such corporate body capable of organization.

Whether, independently of the second renewal of the charter in 1850, and the effect of the particular terms of the subscription, in connection with the organization of the company, and the conduct of the subscribers after such second renewal, the corporate powers and capacity conferred by the charter, as first renewed in 1846, would, by the omission, on the part of the company, to expend the sum of fifty thousand dollars and to build the railroad, within the times required by the first renewal, have ceased and become so extinct, when the subscription was made and the first organization of the company took place by the choice of the first directors, that that organization would be an absolute nullity, not only as to the state, but also as to others, and ■ the subscribers themselves so organizing, if the charter had not been again renewed ; or, whether, after such organization, the effect of the subsequent renewal of the charter was to dispense with the omission to expend said sum of fifty thousand dollars, within the time prescribed for that purpose, and. with the consequences of such omission, and so to revive the powers of the company as to validate such previous organization,—are questions which we deem it unnecessary to determine : because, supposing that the objections made by the defendant to the regularity of the several steps which were taken in such organization, (which will be presently considered,) are untenable, we are of opinion that the notice of the commissioners to the subscribers, to meet as stockholders, for the purpose of choosing directors, in addition to those originally chosen,—the meeting of the subscribers for that purpose, in pursuance of that notice,—and the choice by them of such additional directors,—amounted to an acceptance of the charter by the subscribers, as renewed in 1850, and a recognition and confirmation of all the steps which preceded and resulted in the first organization of the company; and was equivalent to and constituted a new organization, as at the time of said last meeting of the subscribers, of the corporation, and should be so regarded, even on a quo warranto, brought on behalf of the state, to try the question of the validity of their corporate powers: much more, as between the subscribers themselves, and as between them and the defendant, who was a subscriber to the stock and acted as a stockholder, in that meeting; and that they should be precluded from disputing the validity of those proceedings, or repudiating them, where the acts of the directors thus chosen, are in question. After those proceedings, it is too late for them to retract what had been previously done, even if it would have been proper or competent for them, otherwise, to have done so.

The defendant, however, claims, in the next place, that there were such irregularities and departures from the'charter, in the several steps taken by the commissioners and subscribers in organizing the company, that such organization is illegal and of no avail. He insists, 1. That all of the commissioners, in all cases, should have acted, or, at least, have been notified, and had an opportunity to act, in relation to the duties of their appointment. 2. That the mode of obtaining the subscriptions to the stock, by the defendant and others, was unauthorized, because it was not done by the commissioners personally. 3. That the commissioners should not have received the conditional subscriptions to the stock,—that, without including those subscriptions, there would not have been the amount subscribed which the charter required,—and that, therefore, they had no authority to convene the stockholders for the choice of directors, and that such choice was void. 4. That they illegally received the subscription of the defendant, at another time and place than those mentioned, in the notice for that purpose. 5. That there should have been a formal assignment or distribution by the commissioners, to the defendant and the other subscribers, of their stock. 6. That the meetings of the stockholders for the choice of directors, were convened, before the requisite amount of legal subscriptions was obtained, and therefore, before they had power to organize, and hence, that they had no authority to choose directors. 7. That the conditional subscribers should not have been allowed to vote in those meetings ; and 8. That, as' it does not appear that there was any warning of the stockholders’ meeting for the choice of the additional directors, its proceedings were void.

We are inclined to the opinion, that the specific answers, given by the plaintiffs to these several objections, are sufficient, excepting, perhaps, that which is grounded on the conditional character of some of the subscriptions received by the commissioners, and the circumstance that the conditional subscribers were allowed to vote at the meetings of the stockholders for the choice of directors, respecting which there is more difficulty : but in regard to that objection, we are also inclined to think, that those subscribers, by taking a part as stockholders in such meetings, should be deemed to have waived the condition annexed to their subscription, and that this objection is thus obviated. But it is not necessary for us to express a decided opinion on that or any other of these objections, because we have no doubt, that the conduct of the defendant, in regard to the organization by the choice of directors, and the preliminary steps which led to it, and his conduct since that organization, was such as ought, to preclude him, as between himself and the plaintiffs, in an action like the present, which is brought to recover the amount due on the installments assessed on his stock, from disputing the regularity or validity of these steps taken in the organization of the plaintiffs, as a corporation. He was a party tq, and co-operated very actively with the other subscribers and the commissioners, in that organization, and participated in all the proceedings which led to it. He was one of the earliest and largest subscribers to the stock, and induced others also to subscribe to it,—attended, on the call of the commissioners, all the meetings of the stockholders, as one of them, and acted with them, in the choice of directors,—accepted the office of director, to which he was chosen, and acted as such, in the meetings of the directors, and in the meetings at which the installments on the stock were laid,—and, until called upon long afterwards, for his part of those installments, it does not appear that he ever questioned the regularity of the organization of the company or its corporate powers : and he continued to be, and acted as, a director, subsequently, during all the time while the arrangements were made by the directors for the building of the road, and the operations connected with it. In consequence of this conduct on his part, and on the strength of what was thus done by him, in connection with the other stockholders and directors, the other subscribers, generally, were induced to pay for their stock ; and the company have also been induced to incur the expense of building their railroad, and of carrying on all the branches of their business connected with it. The other stockholders have thus been led to invest their funds and assume responsibilities, in a mode and to an extent which they would not have done, but for this conduct of the defendant. The consequence of permitting him now to repudiate his acts, might be to devolve upon the other subscribers a personal liability for the engagements of the company,—to make them even trespassers in regard to those whose property has been taken for the construction of their road, and to frustrate the whole object of their undertaking. It requires no argument to show that, under these circumstances, the case comes within the well established and most just and wholesome principle, that a person who, by his declarations, or a course of conduct, which is a species of declarations, has willfully induced another injuriously to alter his condition, is, as against the latter, estopped from denying the truth of such declarations, or the rightfulness of such conduct. Brown v. Wheeler, 17 Conn. R., 345. Kinney v. Farnsworth, 17 Conn. R., 361. Roe v. Jerome, 18 Conn. R., 138. Noyes v. Ward, 19 Conn. R., 250.

The defendant’s counsel have discussed the question in regard to the organization of the plaintiffs, as though this was a writ of quo warranto, brought to test the competency of the plaintiffs to act as a corporation. Such a proceeding, however, as it would involve the rights of the plaintiffs as against the state, would present a very different question from that which arises in the present suit, which depends merely on the relations between the plaintiffs and defendant : and it is therefore unnecessary to determine, what would be the result of a proceeding of that character. Nor need we here enquire what rights the plaintiffs have acquired, in consequence of what has been done by them, as against any third person other than the defendant. That question would obviously depend on other considerations than those upon which we have placed this part of the case.

The organization of the plaintiffs must, therefore, be deemed to be valid.

The defendant does not controvert the principle which we have repeatedly decided, and which is here to be considered as established, that, by the subscription of a person to the stock of a railroad corporation, of the number of shares annexed to his name on the terms, conditions and limitations mentioned in the charter, and the allowance to him of the shares so subscribed, the relation of stockholder, and company as between him and the corporation, is created, from which the law implies a promise by him, to pay installments ordered by the directors, pursuant to the charter. The Hartford New Haven Railroad Company v. Kennedy, 12 Conn. R., 499.

But he claims that the subscription itself, in this case, is entirely nugatory, on the ground, first, that it only professed to take shares of stock then, that is, at the time of the subscription, in existence, whereas there was then no company in existence in which stock could be taken ; and, secondly, that if it should be regarded as a subscription to stock at a future time, it was void, as an engagement of that description, for the want of a consideration or a promisee. We do not deem it necessary to examine these claims particularly, because we think that they are directly and palpably at variance with the views taken by this court, of the nature and effect of such a subscription, in the Hartford & New Haven Railroad Company v. Kennedy, (12 Conn. R., 499,) which was a case essentially and almost exactly like the present, in regard to the circumstances on which these points depend, and in which our opinion was so fully expressed that it is sufficient to refer to it. Whether the defendant would have incurred any obligation by his subscription, if the charter of the plaintiffs had not been renewed in 1850, or if the defendant had refused to concur with the other subscribers, in accepting it as then renewed, or if there had been no subsequent organization of the company,. or that which was equivalent, we need not determine. We have no doubt that, after such acceptance and organization, a liability to the company to pay the installments which were ordered, attached to the defendant, by virtue of his subscription. By that subscription, and the allowance to him by the commissioners, of the shares for which he subscribed, he became entitled to those shares, subject to the payment for them by him, as it should b.e required by the directors. That title constituted a good consideration for an express promise on his part, or, if there was no such promise, the law would, under the circumstances, imply a promise by him to make such payment. The consideration of such a promise, is the title which the subscriber to stock shall acquire to it, and in this case, the defendant acquired such title, and could have compelled a formal transfer of it to him, and a certificate of ownership, subject to the payment of installments regularly required ; but such certificate was not requisite^ in order to constitute him the owner.

* The defendant insists that there should have been a formal assignment to him, by the commissioners, of the shares allowed to him, or a record of such assignment. We do not, however, deem that to be necessary, where, as in the present instance, the amount subscribed did not exceed,the capital to be raised, and it was therefore unnecessary for the commissioners to reduce or apportion the shares subscribed. There having been no over subscription in this case, if any particular act by the commissioners was necessary in order to signify their assent to the defendant’s taking the stock subscribed by him, it was sufficient that they received from him and retained the amount paid by him towards the stock, when he subscribed, and that they recognized him as a stockholder, by consenting that he might act as such, in the meetings of the stockholders.

The vote of the directors requiring installments, is objected to, because it did not, in terms, make them payable to the treasurer of the company. The eighth section of the general railroad act, to which the charter, as last renewed, was made subject, was in this respect substantially complied with, and that was sufficient. The requirement in the vote, that the installments should be paid at the times therein designated, imports that payments should be made to the treasurer, who is the proper and only officer to receive and keep the moneys of the corporation.

The defendant next objects to a recovery by the plaintiffs, on the ground that notice of the assessments on his stock was not given according to the requirements of the eighth section of the general railroad act. That section provides that the president and directors of railroad corporations may direct the assessments on the shares to be paid to the treasurer, “ in such manner and with such notice as may be prescribed by the by-laws of the company.” The facts bearing on this point are, that the company who are the plaintiffs in this case, never passed any by-law prescribing the mode of such notice,—that the defendant was a director of the company, and as such, was present and acted in the meeting of the directors, at which the vote laying those assessments was passed,—and that, by their direction, notice of the assessments was given by the treasurer to the stockholders, by advertising'them five days thereafter in the newspaper published in the town where the defendant resided. We are of opinion that it was not the design of that section, to make the mode of notice therein mentioned exclusive of all others. If, indeed, a by-law on the subject had been passed, the stockholders would have a right to require that it should be complied with. But if they should not see fit to pass one, and there was no statute, or provision in the charter, prescribing the kind of notice, it would come within the general powers of the directors to adopt any mode which should be reasonable: and the company might prefer to leave that subject to the judgment of the directors, rather than to prescribe themselves an unbending rule, which might prove to be embarrassing or inconvenient. Indeed it will be found, that this is the course which has usually been taken ; probably because the manner of making assessments, and of apprising the stockholders of them, may generally be confided to the discretion of the directors, more beneficially than to the stockholders, as the former have the best means of judging when and in what manner the exigencies of the company require assessments to be made and notified. We do not think, therefore, that it was intended, by that section, to take away any of the general powers of the directors in this respect, excepting where they should be controlled by a by-law. In this case, the defendant had actual notice of the assessments, when they were made; and if there had not been such notice, we should not doubt that the early advertisement of them in the newspaper published where he resided, should be considered a reasonable notice to him. If however, the true construction of that statute required that a by-law, prescribing the notice, should be passed, and that no other mode could be adopted, we think that that requirement might be waived by the defendant, and that his course as a director, in regard to the assessments in question and the notice thereof, would amount to such waiver.

The defendant further insists, that the plaintiffs, by the sale of his shares, are precluded from maintaining this suit. That claim is directly opposed, not only to our decision in the Hartford & New Haven Railroad Company v. Kennedy, but also to the explicit provision of the general railroad act, authorizing a sale of stock, on the neglect of the owner to pay assessments, that “ If the shares of any delinquent stockholder shall not sell for a sum sufficient to pay his assessment, with interest and charges of sale, he shall be held liable to the corporation for any deficiency.”

The plaintiffs caused a location of the entire route of their railroad from Danbury to Norwalk to be made, which was in all respects legal, every step in regard to it required by the charter having been pursued. Afterwards, for a short distance on the northerly end, that location was altered, and a new route substituted, the requisite steps having been taken, as to said substituted portion of the route. The defendant claims that such alteration was unauthorized by the charter, and that he- is consequently absolved from his liability on his subscription. It is a conclusive answer to this claim, that, if the alteration of the route was unauthorized, it left the original location valid, and the defendant’s liability on his subscription unimpaired; and if the alteration was legal, it removes the objection founded on its supposed invalidity. But an irregularity in the location of the road, either in whole or part, whatever its effect might be on the rights of others, or whatever may be the nature of the remedy, by the stockholders, for a misapplication of the funds or the credit of the corporation, furnishes no defence to the stockholders, in an action to recover the installments on their stock. Such an action is not adapted to the purpose of investigating the legality of the doings of the corporation, or its officers, in these respects.

The defendant excepts to the admissibility of the contract between him and Stevens, introduced by the plaintiffs, as evidence in this case. It is clearly admissible, for the purpose, at least, of showing, that the defendant procured others to subscribe to the stock of the company, and the inducements which he held out for that purpose.

We have thus considered the points made on the argument of this case, and the result is, that the plaintiffs are entitled to judgment for the balance due on the installments, after deducting the proceeds of the defendant’s stock.

The superior court is advised accordingly.

In this opinion, the other judges concurred.