The question is whether an assessment made at a special meeting of the Trustees of a private corporation be valid, when the meeting was attended by only seven out of nine of the Trustees, the other two Trustees not attending and not having notice of such meeting.
Our statutes leave the question to be decided on general principles, for they do not determine what shall constitute under certain circumstances, a " Board of Trustees," or a " Board," or " the persons duly assembled as a Board." (See, Stats. 1865-6, p. 458, Secs. 1 and 3; Section 5 of the General Statute concerning corporations, 1 Hitt. Dig. Art. 750; Sec. 7 of Mining etc. Id. Art. 938.)
These are the only sections which appear to have any, even the most remote, bearing on the question.
" The rule applicableto municipal corporations, namely: that all corporate affairs must be transacted at an assembly convened upon due notice, at a proper time and place, consisting of the proper number of persons, the proper officers, classes, etc., will, in general, apply to private corporations." (Angell and Ames on Corporations, Sec. 488, Eighth Edition.) And it is said in the same section: " The presumption is, that every member knows what days and times are appointed by the charter, by-laws or by usage, for the transaction of particular business, and therefore, no special notice is requisite for assembling to transact the business generally allotted for such days; " thereby clearly implying that if the business be other than the ordinary business to be transacted at a meeting other than a stated meeting, notice must be given to all the persons who are entitled to take a part in such meeting.
As the statute does not specify any particular manner of giving notice, the common law mode must undoubtedly be pursued; that is, personal notice must be given to each Trustee. According to Lord Kenyon, " Special notice must be given to every member who has a right to vote." (Angell and Ames on Corporations, Sec. 492, note 2. See also the text of the same Section, and Secs. 494, and 496. Wilcox on Corporations, Sec. 58. People v. Batchelor, 22 N.Y. 128; Rex v. Doncaster, 2 Burr, 744; The King v. Theodorick, 8 East. 543; Rex v. Mayor, & c. of Carlisle, 1 Strange, 385; Rex v. Mayor, & c. of Shrewsbury, Rep. temp. Hardw. 151; The King v. Wake, 1 Barnard, 80; King v. The Co. of Fishermen of Feversham, 8 Term Rep. 352-356; Rex v. May, 5 Burr, 2, 681-2; People v. Peck, 11 Wend. 604; The King v. Gabarian, 11 East. 77; The American Bank v. Baker, 4 Met. 164.)
If the assessment was void, then a promissory note given for such assessment is also void for want of, or failure of, consideration.
It is elementary law that, as between the original parties, the consideration of a promissory note may be inquired into, and if there is a want of consideration it cannot be enforced; and that such defense is equally available against a holder to whom the note is transferred after it has become due, or with a knowledge of the want of consideration. (Chitty on Bills, 79 and note; Parsons v. Gaylords, Admx. 3 Johns. 463; Tappan v. Van Wagener, 3 Johns. 463; Schoonmaker v. Roosa, 17 Johns. 300; Petry v. Christy, 19 Johns. 53; Bank of Troy v. Tapping, 9 Wend. 274.)
JUDGES: Temple, J., delivered the opinion of the Court, Crockett, J., Rhodes, C. J., and Sprague, J., concurring. Wallace, J., concurring.
OPINION
TEMPLE, Judge
The statement on motion for a new trial, does not specify particularly wherein the evidence is insufficient to sustain the judgment, nor does it specify any error alleged to have occurred at the trial. The only specifications of error are:
First --That the decision of the Court is against law.
Second --That upon the facts and evidence, the Court should have rendered its decision in favor of plaintiff.
This is clearly insufficient, as was held in Brumagim v. Bradshaw, (39 Cal. 24.)
If we could regard the statement, however, we are still of the opinion that the judgment must be affirmed.
The order levying the assessment, for which the note of Vandewater was given, was made at a special meeting of the Trustees, and there appears to be no substantial conflict in the authorities upon the proposition that, when there is no different provision in the charter or by-laws of a corporation, such meetings must be called by giving personal notice to each member of the Board of Trustees. The fifth section of the Act of 1853 (Statutes 1853, p. 281), which provides that a majority of the whole number of the Trustees shall form a Board for the transaction of business, and every decision of a majority of the persons duly assembled as a Board shall be valid, etc., does not change the rule. The question as to when they shall be considered as duly assembled is not settled by the statute.
The judgment and order are affirmed.
CONCUR
WALLACE
By Wallace, J.: I concur in the affirmance of the judgment on the ground of the insufficiency of the specifications of error; upon the other points discussed, I express no opinion.