Troy Iron and Nail Factory v. Corning.

acquired for such a purpose, under the circumstances appearing in the present case, should not be regarded as rendering such a purchase entirely nugatory and of no effect. Because

the purchase of the lake involved the purchase of land adjoining the lake, it by no means necessarily follows that the acquisition of the lake involved a violation of the provisions of the act of 1846.

The association determined that this land, a considerable portion of which was swamp land, and very little of it good arable land, was necessary to raise the water higher by a dam above the outlet of Glass lake. This was a proper object, and within the power conferred by the act, and I think was not foreign to the purposes of the act of 1846, and the object to be attained thereby.

The objection taken, that the assessment is unjust, oppressive and inequitable, is not available. This objection is based upon the ground that the apportionment takes for its basis the principle that the assessment upon each of the associates should be according to the height of the fall, and not the quantity of water used. There may be some doubt whether the assessment was founded entirely upon this principle, and I am inclined to think it does not distinctly appear that it was. Conceding, however, that it was, can it be of any consequence, when it appears that the defendants, with a full knowledge of all the facts, agreed to it? Perhaps they were willing, and it was to their advantage and for their benefit, to assent to more than their proportionate share, rather than be deprived of the improvements contemplated by the association, and actually made by them. Their establishment was large and extensive, and it might well be that in conducting the business arising from it, as it was important that they should have a full supply of water for their mills, they were willing to be liberal beyond their proportionate share in sustaining these improvements. It is not at all times easy to discern and analyze the motives and interests which induce men to enter into contracts of this charac

Troy Iron and Nail Factory v. Corning.

ter. The great practical advantages to be derived from an enterprise of this kind are often an essential element and an important consideration, and will sometimes outweigh all other questions, and induce those who represent great interests to make heavy sacrifices, and to assume even unjust proportions and unequal burdens. The plan of assessment seems to have been adopted after due deliberation, and was fully approved; and although the defendants may not have used or needed all the water, yet they had a right to its use and enjoyment, under the articles of association. The apportionment made, and the fact that they had not fully exercised this right can scarcely be considered as a defense, when they are called upon to perform and fulfill the conditions of their contract. Even although it may be onerous, yet there is not, I think, such a change of circumstances as would authorize the interference of a court of equity with the arrangement. Can it be said, with justice and fairness, that the bargain is hard and unconscionable where, at least heretofore, great advantages have flowed from it, and there is no material change in the situation and circumstances of the parties? I think not. Here was an agreement made upon an adequate consideration and with a full and complete appreciation of its character, and so long as there is no allegation or proof of fraud, or mistake or surprise, I am inclined to the opinion that a court of equity can not hold that it is illegal and inequitable, and for that reason refuse to decree a specific performance. (Will. Eq. Jur. 268. 2 Story's Eg. Jur. 769.)

If the views expressed upon the point last discussed are sound and correct, then the ruling of the Judge, excluding the testimony of the civil engineers tending to show that the purchases and expenditures, for which the assessments were made, did not proportionably advantage the defendants, and that the assessments made for them were unequal and unjust towards the defendants, was correct, and the exception to the decision not well taken.

The objection that the assessment was illegally and irregu

Troy Iron and Nail Factory v. Corning.

larly made is based upon two grounds (1.) That the property of Merritt, executor, &c. of Hart, which was originally liable under the articles of association, not being represented by an owner who was a member, the scheme of apportionment failed. (2.) That if the defendants are in any manner liable to contribute to the expenditure for the purchase of Glass lake and farm, the present is not the form of action.

First. The withdrawal of members was provided for by the articles of association. It was agreed that parties who might cease to be owners or occupants, should upon written notice given to the secretary, of the fact, be discharged from all further assessments and the person or persons who succeeded such owners or occupants, upon signing the articles should become a member or members of the association. The effect of this provision, I think, was to impose upon those who remained, after any withdrawal and any neglect of the successor to become a member, the burthen of contributing their due proportion as previously agreed upon to sustain the expenses of the association. It would not necessarily follow that the transfer of property by a member of the association without a substitution of a successor would destroy the plan upon which it was organized. Those who remained, unless the number were so far reduced that no benefits would arise from the continuance of the association would still be interested, and liable to contribute in the ratio they had agreed. That ratio was not increased, because one or more members withdrew. Their shares still remained the same, and the remaining associates were bound to contribute in that proportion so long as it was important to continue the organization and it conferred the benefits which were originally designed. This was a part of the contract which they solemnly obligated themselves to perform, and while they continued to enjoy its fruits and to reap the consideration expected, and they suffered no injury, there can be no cause of complaint.

It appears that the plaintiffs voluntarily paid the assess

Troy Iron and Nail Factory v. Corning.

ments due upon the Merritt property, thus making the full amount except the proportion now claimed of the defendants; and although not obligated to do so, I think this payment so far fulfilled and carried out the principle of assessment agreed upon, as to preserve the organization. Certainly the defendants were not injured by the payment of the share of the assessment, which the Merritt property was originally bound to contribute by the other associates, and under the circumstances, should not be permitted to avail themselves of the objection that it was illegal and unauthorized.

Second. I think the action was properly brought in its present form. By the concluding portion of the articles of association each of the associates severally bound himself to pay a ratable proportion of all expenditures for the improvements made and to be made. The undertaking was mutual. The covenants were with each other. All had an equal interest, and a refusal by one to pay made all the others interested in enforcing it. The liability arises, I think, on the promise to each other, which can only be enforced by an action among themselves. Those to whom it was made are the proper individuals to bring the action. Nor was it essential that there should be a formal division of the interests of the associates into shares. The proportions were agreed upon by the associates, thus fixing the interest of each one and the shares which he or they represented. This was a sufficient allotment, within the articles of association.

I have examined the various objections made by the defendants to the admission of the different deeds introduced in evidence by the plaintiffs and the exceptions presented to the rulings of the Justice upon the trial in admitting evidence offered by the plaintiffs and in excluding testimony offered by the defendants. I am of the opinion that they were not well taken. Some of the points urged against the admissibility of the deeds in evidence are covered by the remarks already submitted in connection with other branches of the case, and I consider an extended discussion of these questions

Troy Iron and Nail Factory v. Corning.

in detail for this as well as other obvious reasons, unimportant and unnecessary.

It may also be observed that the exceptions taken to the decision of the Judge in refusing to dismiss the complaint, after the plaintiffs had rested their case, and in refusing to find as requested by the defendants, involve some of the same. questions already discussed, and therefore do not require especial consideration.

The defendants in their answer claim that they are entitled to affirmative relief, and ask that the court order and adjudge that the award and determination of Marshall and others, to whom it was submitted to assess and apportion the expenses already made, and thereafter to be made, in proportion to the benefits received, shall be corrected, modified and so adjusted as to render that part of the expenses to be paid by the defendants proportionate to the advantage derived, and that they be allowed to withdraw from the association. I am at loss to determine how this court upon any well established principle can interfere with, or readjust the apportionment already made, or relieve the parties from the obligations which the award and their solemn agreement have imposed upon them. I have already discussed the question arising as to the unjust, oppressive and inequitable character of the assessment, and what has been said in that connection is mainly applicable to the point now under consideration. There is a class of cases where, as in a sale or conveyance, there is a mistake as to the quantity or subject matter of the thing contracted for, or where by accident or mistake the agreement is materially variant from what the parties intended, in which cases courts of equity will relieve against it. (Marvin v. Bennett, 8 Paige, 312. 26 Wend. 169. Calverley v. Williams, 1 Ves. Jr. 210. Gillespie v. Moon, 2 John. Ch. 585.)

I do not consider that this is a case within the principle laid down in the authorities above cited. Equity will not interfere to set aside a contract made in good faith, on the ground of mistake in judgment as to the value of the articles.