Page:Harvard Law Review Volume 8.djvu/329

LEASE OF RAILROAD. 3I3 the case of a river-improvement company, decided by this court in 1817. Union Locks & Canal v. Towne,^ was a suit brought to re- cover assessments made by the plaintiffs on a share of their capital for which the defendant had subscribed. The plaintiff's charter, passed in 1808, authorized them to render Merrimack River navigable from Amoskeag Falls southward to Reed's Ferry, a distance of about eight miles, and for effecting this object to buy six acres of land, and to collect, for forty years, a toll not averaging over twelve per cent on the capital invested.^ In 1809 an addi- tional Act, passed on the plaintiffs' petition, repealed the limitations of the amount and duration of toll, and authorized them to buy one hundred acres of land instead of six. In 18 12 another Act granted to one Sullivan the right of locking Cromwell's Falls, which were about six miles south of Reed's Ferry, authorized him to transfer his rights in this grant to the plaintiffs, and provided that " when- ever such transfer shall be made, . . . this Act shall be considered as an addition to the aforesaid Act incorporating the proprietors of Union Locks and Canal." The transfer was made and accepted in 18 13. The defendant did not assent to either of the changes of the company's powers ; and it was held that the enlargements ac- cepted by the majority of his associates were material alterations of the original enterprise and of the contract made by the company with its members, and that he could not be compelled to pay for the share for which he had subscribed. The grounds of that decision are fully reported. The terms of the defendant's contract are limited by the charter. To make a valid change in this private contract, as in any other, the assent of both parties is indispensable. The corporation on one part can assent by a vote of the majority ; the defendant on the other part by his own personal act. The defendant, having never assented to either of the additional Acts, is under no obligations to the plain- tiffs except what he incurred by becoming a member under the first Act, Assessments made to advance objects essentially differ- ent, or the same objects in methods essentially different, from those originally contemplated, are not made in conformity to the defend- ant's contract with the corporation ; and the action, sustainable on that contract alone, cannot be supported. Assuming his member- ship, and regarding him as having made a purchase of a share under the Act of 1808, the obligations imposed on him by that purchase 1 I N, H. 44. 2 See 9 Granite Monthly, 5, 6,