1840. LUCAS บ. BEACH. on the face of it, to be an agreement, and had been read over to the plaintiff and assented to by him, it was evidence of a contract, and required a stamp. At the close of the plaintiff's case the defendant's counsel contended that he ought to be nonsuited, inasmuch as he was a partner in the undertaking. The learned baron having, however, refused to nonsuit the plaintiff, the defendant proceeded to call witnesses to shew that the plaintiff's plans and sections were incorrect and useless, and that the latter had not been finished within the time prescribed by the standing orders of the House of Commons. The learned judge gave it as his opinion that the plaintiff had not entered into any contract to complete the plans and sections within any definite period; and, withdrawing the question of partnership from the jury, left it to them to say, whether the work was properly done; and if they thought that the plaintiff ought to recover, what he was entitled to, beyond the 50%. that had been paid, in respect of the plans and sections, and of a journey to London made by himself and clerk. The jury having found their verdict for the plaintiff, damages 80%., the learned baron gave the defendant leave to move to enter a nonsuit, if the court should think the partnership applied to the whole demand of the plaintiff, or otherwise to reduce the verdict to 50l. in case it should be held that the partnership applied only to part. Channell Serjt., in last Easter term, moved accordingly, and contended that the action could not be maintained, the plaintiff clearly being a partner in the undertaking. He also submitted that the minute of the 24th of October should have been stamped; but, when the rule came on for argument, he admitted that he could not sustain this objection after the decision of the Court in Vaughton v. Brine. (a) 1840. LUCAS The first ques Talfourd Serjt. now shewed cause. tion is, whether the plaintiff, by the insertion of his name in the list of subscribers, became a partner in the proposed undertaking, so as to prevent him from maintaining an action for the whole or any portion of his demand. It is submitted that by such insertion no immediate contract of partnership was created; for, strictly speaking, there could not be any shareholders in the scheme until it was sanctioned by an act of parliament. The cases of Holmes v. Higgins (b), Milburn v. Codd (c), and Goddard v. Hodges (d), cited when this rule was moved for, may be distinguished. Holmes v. Higgins, which was chiefly relied on, is essentially different from the present case. There, the plaintiff had been one of the parties originally engaged in the undertaking, and one of its chief promoters: here, the plaintiff merely allowed his name to be put down for two shares, a considerable time after the scheme was set on foot. It is submitted that this case does not fall within the principle of Holmes v. Higgins, but within that laid down in Fox v. Clifton (e), founded upon the prior decisions of Vice v. Lady Anson (g) and Dickinson v. Valpy. (h) In Vice v. Lady Anson, a shareholder in a mining company, who had paid money for shares and had received a certificate that she was the proprietor of those shares, and who had spoken and written of herself, in private letters and (a) Antè, p. 359. (b) 1 B. & C. 74. ; 2 D. & R. 196. (e) 7 B. & C. 419. ; 1 M. & R. 238. (d) 3 Tyrwh. 209.; 1 C. & M. 33. P. 676.; 9 Bingh. 115. ; 2 M. (g) 7 B. & C. 409.; 1 M. (h) 10 B. & C. 128.; 5 M. & R. 126. (e) 6 Bingh. 776.; 4 M. &. v. BEACH. 1840. LUCAS บ. BEACH. society, as being a shareholder, but who had not held herself out to the world as a partner, and to whom no interest in the mine had really passed, was held not liable for goods supplied for the use of the mine. In Dickinson v. Valpy, where it was proved that the defendant had applied to the secretary of a mining company for shares, and that some were appropriated to him, on which he paid an instalment of 15l. per share, and that he attended at the counting-house of the company and there signed some deed, and afterwards attended a general meeting of the shareholders; the Court of King's Bench inclined to think (but it was not necessary to decide the point) that there was not sufficient evidence to shew that the defendant had ever become a complete partner in the company, or that he had held himself out to the world as such partner. In Fox v. Clifton it was held, that the mere circumstance of applying for shares in a joint-stock company, and payment of the deposit thereon, did not constitute the defendants partners, they not having otherwise interfered in the concern; and that the fact of their names being inserted, without their knowledge, in a book containing a list of the subscribers, was not a holding of themselves out to the world as partners, so as to render them liable for the debts of the company. So in Pickford v. Davis it was decided, that a subscriber to a company, who had taken shares and paid a deposit on them, was not liable upon a contract of the directors, (who had commenced business when only 1400 out of the 10,000 shares, of which the company was originally intended to consist, had been taken) without proof that he knew and assented to their proceeding with the smaller capital, or had expressly authorised the entering into the contract. If, as appears from Pickford v. Davis, the question in each particular case is, whether the party authorised the making of the contract, it is clear that the present plaintiff did not do so; for he entered into the agreement with the defendant as the opposite (a) 6 New Cases, 44.; 8 Scott, 372. (b) 1 Esp. N. P. C. 182. 1840. LUCAS บ. BEACH. 1840. LUCAS บ. ВЕАСН. Channell Serjt., in support of the rule. The cases that have been cited establish a position which the defendant is not interested in disputing. They are all cases of actions brought by third parties, in which there was no pretence for saying that the work was done on the personal credit of the parties sought to be charged, who could only be rendered liable by reason of their interests in the different speculations. It is said, that no partnership could be formed here until the act of parliament was obtained: but what is there to prevent a number of individuals from entering into a partnership with the limited object, in the first instance, of procuring an act of parliament, and with an ulterior object in view when the act has passed? Holmes v. Higgins (a) shews that there may be such a partnership. It was there decided, that persons associating together and subscribing money, for the purpose of obtaining an act of parliament, are partners in the undertaking; and it was held, that a subscriber, who acted as their surveyor, could not maintain an action for work done by him in that character on account of the partnership, against the chairman of the committee, or any of the other subscribers. Milburn v. Codd (b) and Goddard v. Hodges (c) are to the like effect. [Maule J. The plaintiff did not become a shareholder till the 14th November: why should he not recover on the express contract previously made with him?] If the Court think that there was an express contract made with the plaintiff before he became a partner, which he has performed, he may perhaps be entitled to recover in respect of such contract. But it is submitted, that he is suing on a quantum meruit, and not on the express contract which he never completed, and which was repudiated by the committee. (a) 1 B. & C. 74. ; 2 D. & R. 196. (b) 7 B. & C. 419.; 1 M. & R. 238. (c) 3 Tyrwh. 209.; 1 C. & M. 33. |