Year: 1873

made by the acting selectmen OF the town.
We think it does. They certainly acted
for the town in making the subscription.
But this is not all. It appears that they
called the town meeting at which the vote
was passed authorizing the subscription


In the absence of any evidence or sug
gestion that any other persons had been
elected, or had acted, as selectmen of the
town, we think it may very properly be
presumed that these men were not usurpers
that they were in fact, what their acts
indicate, not only the acting selectmen of
the town, but the persons actually chosen
to that office.


5. Another objection is that the stock
was subscribed for upon condition that
the road should be built through the town
Of Brooks, on the line run by Col. Wildes,
and that :, suitable depot should be erect
ed for the convenience of the public. This
is true. Bat the case shows that the road
as been built on the line indicated. The
case also shows that convenient depot
has been built. 1t is true that the work
had not been completed when this suit
was commenced; nor was it necessary
that it should be, unless its performance
is held to be a condition precedent. We
hold that it was not The object Of the
subscription was to furnish the means for
building the road Unless the means
were first furnished the road could not be


built. ltwould be unreasonable to suppose
that it was within the contemplation of the
parties that the road should be built first
and the means furnished afterwards. The
performance OF The work was not, there
tore, q condition precedent, but con-
dition subsequent 1t is well settled that
such a condition will not defeat an action
for the recovery OF the money, notwith


standing it had not been performed when
the action was commenced.


q. 1t is said that the bylaws OF the
railroad company provided that no as
sessments should be made until the full
amount of the estimated cost of the road
should be subscribed by responsible par
ties, and that it is obligatory upon the
plaintiffs to show atfirmatively that tn 8
condition has been complied with. The
plaintiffs do show atfirmatively that the
estimated cost of the road was subscribed
before the assessments in question were
made; and there is no evidence before US
that the parties who made the subscriptions
were not responsible. In the absence of
proof to ,the contrary. we think it but
reasonable to presume that in the judg
ment of the directors they were responsible
otherwise they would not have made the
assessments,) and this is all that the law
requires. If the directors, acting in good
faith, came to the conclusion that the sub
scriptlons were made by responsible par
ties, and thereupon proceeded to make
the assessments required to carry forward
the enterprise, the assessments would not
be rendered invalid by proof that they
erred, and that some of the subscribers
were not in fact responsible. Whether
OF not the requisite amount had been SUBJ
scribed by responsible parties must neces-
sarily be decided by the board of directors,
for there was no other person or persons,
be determined at that stage OF proceed
ings; and if they, acting in good faith.
came to the conclusion that the estimated
cost of the road hadIbee subscribed by re-
sponsible parties, and thereupon proceed
ed TO make the assessments, we think the
assessments would be legal, and that they
could not be rendered invalid by showing
as matter of fact that some of the SUBJ
scribers were not responsible. To hold
otherwise would be dangerous doctrine.
1t would probably destroy nine-tenths of
all the assessments made in similar en-
elprises, and throw the business of the
companies into chaotic and inextricable
confusion. We think this objection is not
sustained.


We have now considered all the obiec-
tions raised by the learned counsel for the
defendants. None of them, in our judg-
ment, are sufficient to defeat the action.


And in conclusion it may not be i'm
proper TO add that while, in the judgment
of the court, towns and cities cannot be
too careful how they engage in such en-
terprises; yet when they have engaged in
them, and large expenditures have been
made on the taith of their subscriptions,
and the loss, if they escape, must fall upon
other parties, they must not expect the
court to strain the law to relieve them.


Judgment for plaintiffs for the balance
due upon the assessments made upon the
shares subscribed for by the defendants,
with interest for the time when the as
sessments should have been paid-the
amount OF interest, in case of disagree
ment, to be determined by a Judge at nisi
prius.


Cutting, Barrows, Virgin, and Peters,
j. j., concurred. Dickerson, j., took no
part.