Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/88

 § 92.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. VI. the different parties. 1 It is often said, rather loosely, that the mutual promises of the different contracting parties constitute the consideration for each other; 2 but to this it is answered with apparent pertinency, that, when the binding force of these very promises is in question, to say that they constitute valid considerations for each other is reasoning in a circle^ still, perhaps, this objection is more specious than real. It is usually said that consideration is either benefit received, or trouble or detriment caused ; but if the nature of consider- ation be looked into a little more closely, it will appear that, in reality, the detriment caused is at the present day the es- 1 See Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546, 553 et seq. The promise to take the shares im- plies a promise to pay for them; Spear v. Crawford, 14 Wend. 90; ap- proved in Rensselaer, etc., Plank Road Co. v. Barton, 16 N. Y. 457, note. See, also, generally as to this last, §§513, 514. 2 West v. Crawford, 80 Cal. 19; Marysville, etc., Co. v. Johnson, 93 Cal. 538; Twin Creek, etc., Turn- pike Co. v. Lancaster, 79 Ky. 552; Watkins v. Eames, 9 Cush. 537; New Lindell Hotel Co. v. Smith, 13 Mo. App. 7: Osborn v. Crosby, 63 N. H. 583. " The agreement to associate together under the act to accomplish the purposes designed would seem a sufficient consideration. The con- sideration need not move from the party with whom the contract is made. The consideration of one promise is that others will make like promises." Shepley, C. J., in Kennebec and Portland R. R. Co. v. Palmer, 34 Me. 366. See Edinboro 1 Academy u. Robinson, 37 Pa. St. 210; Thompson v. Page, 1 Mete. 565. 8 Methodist Episcopal Church v. Kendall, 121 Mass. 528, holds that a gratuitous subscription to promote the objects for which a corporation 68 is established cannot be enforced unless the promisee has done some- thing or incurred some liability re- lying on the promise; and it is not sufficient that others were led to subscribe by the subscription sought to be enforced. See Poughkeepsie, etc., Plank Road Co. v. Griffin, 24 N. Y. 150; Phillips Limerick Acad- emy v. Davis, 11 Mass. 113; Essex Turnpike Co. v. Collins, 8 Mass. 291; Burt v. Farrar, 24 Barb. 518; Am- herst Academy v. Cowles, 6 Pick. 427. But see Bryant v. Goodnow, 5 Pick. 228, 229, where it is said: " Where one subscribes with others a sum of money to carry on some common project, lawful in itself, and supposed to be beneficial to the projectors, and money is advanced upon the faith of such subscription, an action for money paid, laid out, and expended may be maintained to recover the amount of the subscrip- tion, or such portion of it as will be equal to the subscriber's proportion of the expense incurred.'" See, also, Homes v. Dana, 12 Mass. 190; Trus- tees of Farmington Academy v. Allen, 14 Mass. 172; Whitsitt v. Trustees Presbyterian Church, 110 111. 125; Osborn v. Crosby, 63 N. H. 583.