parties, their relations to each other and to the subject matter, even their negotiations preceding the contract, and to continue this investigation until that which at first was unintelligible, from its elliptical character, becomes plain. Steadman v. Taylor, 17 B. R. 283. The court has the right to inquire of the parties to the contract, the significance of the words they have used. The true object of construction is to arrive at the intentions of the parties. It is true there is a rule that parol evidence is inadmissible to contradict or vary or add to the terms of an intelligible written instrument; but there is no rule which forbids the introduction of parol evidence to explain and elucidate words in a written contract which the court cannot understand, but which the parties evidently used with some meaning; provided, however, that the evidence admitted shall not alter the meaning of that which is written, nor insert into the contract an additional term or stipulation. Sargent v. Adams, 3 Gray, 72; Mead v. Parker, 115 Mass. 413; Sweet v. Lee, 3 M. & G. 240; Thorington v. Smith, 8 Wal. 1.

The rule, allowing no explanation of a patent ambiguity, needs constant qualification. Fish v. Hubbard, 21 Wend. 651, and cases cited; Anon., 2 Atk. 32.

When a written contract contains terms of ambiguous and doubtful meaning,-terms which the court cannot fully understand (i. e., patent ambiguities), it not only permits but enjoins the introduction of parol evidence to explain the meaning of such doubtful terms and phrases. Herring v. B. Iron Co., 1 Gray, 138; Burnham v. Allen, Ib. 496; Stoops v. Smith, 100 Mass. 63; Peisch v. Dickson, 1 Mas. 12; Bradley v. W., etc., St. Packet Co., 13 Pet. 89; Wigram Wills, 181; on Ld. Bacon's rule, stated in Miller v. Stevens, 100 Mass. 518; F. & M. Bk. v. Day, 13 Vt. 36; Wyman v. Winslow, 2 Fairf. 398; Sanderson v. Piper, 5 Bing. N. C. 425; Phipps v. Tanner, 5 C. & P. 488.

The evidence of the meaning of Roeth's and Wilcox's subscriptions adopted by the plaintiffs, is competent and admissible; and if it is shown that both subscriptions are conditional, or if either is properly shown to be conditional, and the Old Colony and Newport R. R. Co.'s subscription is also found invalid, the finding of the judge below must be sustained. Troy & G. R. R. Co. v. Newton, 8 Gray, 596; Cabot & W. S. Bridge v. Chapin, 6 Cush. 50; Boston, B. & G. R. R v. Wellington, 113 Mass. 86.

These cases hold that the other subscriptions must be "unconditionally subscribed, payable in cash."

Where subscriptions are made under an agreement that they shall not be binding unless a specified sum is subscribed, it is essential that there should be no condition as to the liability of any of the other subscribers not applicable to all. New York Exch. Co. v. De Wolf, 31 N. Y. 273; S. C., 5 Bosw. 612; State of Mich. v. Phoenix Bk., 33 N. Y. 25; Addison Contr. (6 ed.) § 454;

8 A. & E. R. Cas.-35

Stewart v. Hamilton Col., 2 Den. 419; Berry v. Yates, 24 Barb.

199.

The inability of the largest subscriber to the guaranty to respond to the extent of any such subscription, or a subscription for half the amount subscribed by him, this being well known to the committee, is a fraud upon the other subscribers. Penobscot R. R. v. Dummer, 40 Me. 175; Same v. White, 41 Ib. 521; Westminster Col. v. Gamble, 42 Mo. 411; Middlebury Col. v. Loomis, 1 Vt. 189; Same v. Williamson, Ib. 212.

So far without extrinsic evidence affecting the document.

A release of any of the amount subscribed by one releases all of the subscribers who have not assented thereto. Rutz v. Esler & Ropiequet Manuf. Co., 3 Bradwell (Ill. App.) 83; Stewart v. Hamilton College, 4 Denio, 419; New York Exchange Co. v. De Wolf, 31 N. Y. 273; Cecil v. Plaistow, Anst. 202; Weed & Weeed v. Bentley, 6 Hill, 56; Stewart v. Trustees of Hamilton College, in error, 2 Denio, 403.

If the promise is joint the action must be joint, and in the name of the whole, though all the interest is really in one of the promisees. Noxon v. Smith, 127 Mass. 487; Emery v. Hitchcock, 12 Wend. 156; In re Barber, 14 M. & W. 721; Foley v. Addenbrooke, 4 Q. B. 197; Calvert v. Bradley, 16 How. 580.

Where a power is to be executed or a ministerial act done by three or more individuals, and no authority is given to the majority, all must execute to give validity to the act. Sprague v. Bailey, 19 Pick. 442; Williams v. Lunenburg, 21 Pick. 82 (S. P.); Wardwell v. McDowell, 31 Ill. 364.

The minority of the stockholders have a right to be protected from liability to loss through their interest in the corporation. Ashbury Rw. Carriage, etc., Co. v. Riche, L. R. 7; Eng. & I. Ap. 653.

The subscription was ultra vires, and the corporation was not bound thereby. Thomas v. Railroad Co., 101 U. S. 71; Re European Soc. etc., 8 Ch. D. 680; Mulholland v. Pen. Co., C. P. D. Nov. 20, 1880, not yet reported; Franklin Co. v. Lewiston Inst., 68 Me. 43.

We submit that the evidence and the facts come within the principle of Stoops v. Smith, 100 Mass. 63. See Swett v. Shumway, 102 Mass. 365; Palmer v. Clark, 106 Ib. 387; Chester Emery Co. v. Lucas, 112 Ib. 434.

A committee-who are no doubt trustees for the subscribers. Addison on Contracts, 7 ed., 100; Williams v. Page, 24 Beav. 654 which changes the character of the enterprise to the advantage of some of its members, should not be allowed to hold the subscribers who entered into another contract. Brewers' F. I. Co. v. Burger, 17 N. Y.; 10 Hun, 56. Not to make good the representations, works a fraud upon the defendant. Clark v. Partridge, 2 Barr. 13; Powelton C. Co. v. McShain, 75 Pa. St. 245.

If Gilmore is a member of the committee, or adopted into it, or their grand advisory director, his knowledge and the representations are binding upon the committee. Campbell v. McClenarchan, 6 S. & R. 171.

J. H. Benton for defendant, Old Colony R. R. Co.

The defendant is a corporation established for certain specified purposes, and has, by its charter and the laws of the Commonwealth, no other powers than are necessary and proper to be exercised for the accomplishment of such purposes. Chapter 267 of the Laws of 1836; Chapter 100 of the Laws of 1844; Chapter 150 of the Laws of 1844; Chapter 133 of the Laws of 1854; Chapter 149 of the Laws of 1862; Chapter 101 of the Laws of 1864; Chapter 143 of the Laws of 1872.

The various acts constituting the charter of the defendant corporation "are public statutes which all persons dealing with that corporation are bound to take notice of." Richardson et al. v. Sibley, 11 Allen, 65-72; Monument National Bank v. Globe Works, 101 Mass. 57-58; Commonwealth v. Smith, 10 Allen, 447-459; Pearce v. Madison and Indianapolis R. R., 21 Howard, 441-443; Zabriskie v. Cleveland R. R., 23 Howard, 381-398; Whittenton Mills v. Upton, 10 Gray, 582-598.

The power of corporations is derived only from the act, grant, charter or patent by which they are created, and corporations are to exercise no authority except what is given by the legislature by express terms or by necessary implication. No vote or act of a corporation can enlarge its chartered authority. Salem Mill Dam Corp. v. Ropes, 6 Pick. 23–32.

The plaintiffs, therefore, being bound to know that the defendant corporation could only exercise such powers as were expressly given or necessarily implied by the language of the legislative acts creating it, must be held to have known that any act not necessarily and properly incidental to the purpose of constructing, maintaining, and operating a railroad and transporting passengers and freight thereon as a common carrier was by necessary implication prohibited to the corporation, and therefore ultra vires and void. Huntington v. Savings Bank, 96 U. S. 388-393; Head v. Providence Ins. Co., 2 Cranch, 167; Perrine v. C. & D. Canal Co., 9 Howard, 184; Caldwell v. Alton, 33 Ill. 416; Dartmouth College v. Woodward, 4 Wheaton, 636; R. R. Co. v. Harris, 12 Wall. 6581; Beatty v. Knowler, 4 Peters, 152; Hood v. N. Y. & N. H. R. R. Co., 22 Conn. 502.

Even if this contract were one for the doing of that which the corporation could itself do, it would be ultra vires and void, because it is an attempt to guarantee the success of an enterprise conducted by others. The government and direction of the affairs of all railroad corporations is by law vested in their boards of direc

Rev. Statutes, Ch. 39, Sec. 49; Gen. Statutes, Ch. 63, Sec. 2; Whittenton Mills v. Upton, 10 Gray, 582.

For a full discussion of the law see Brice's Ultra Vires (2d ed.), pp. 177-199; Hodge's Law of Railways, pp. 49-57; Potter on Corporations, vol. 2, p. 574 et seq.; Union Bridge Co. v. Troy & Lansingburg R. R., 7 Lansing, 240; Coleman v. Eastern Counties Ry., 10 Beaven, 1; Shrewsbury & Birmingham Ry. v. Northwestern Ry., 6 H. L. Cas. 137, and in Pearce v. Madison, etc., R. R., 21 How. 441; Bagshaw v. Eastern Union Ry., 7 Hare, 114; Munt v. Shrewsbury & Chester Ry. Co., 20 L. J. Ch. 169; 3 Eng. L. & Eq. 149; Attorney General v. Corporation of Norwich, 16 Sim. 225; Caledonian and Dumbartonshire Ry. Co. v. Helensburgh Harbor Trs., 2 M. Q. 391; Gregory v. Petchett, 33 Beavan, 595-606; Bissell v. Michigan Southern, etc., R. R., 22 N. Y. 258. Also, Miner's Ditch Co. v. Zellerbuck, 37 Cal. 543; Converse v. Norwich, etc., R. R. Co., 33 Conn. 166; Mechanics' and Building Association v. Meriden Agency Co., 24 Conn. 159; Downing v. Mount Washington Road Co., 40 N. H. 230; Pearce v. Madison, etc., R. R., 21 Howard, 441; Eastern Counties Ry. v. Hawkes, 5 H. L. Cas. 331; East Anglian, etc., Ry. v. Eastern Counties Ry., 11 C. B. 775; Taylor v. Chichester, etc., Ry. Co., L. R. 2 Ex. 356; Zabriskie v. C. C. & C. R. R., 23 How. 391–398.

In this State the courts have not, in all cases, gone so far as the English courts have done in holding acts of corporations ultra vires; but an examination of the following decided cases will show that they have always held to the rule stated by the court in Spaulding v. Lowell, 23 Pick. 71, and have never enforced an executory contract made by the directors of a corporation to render assistance to an independent enterprise like the one attempted to be aided here. Bangs v. Snow, 1 Mass. 180; Stetson v. Kempton, 13 Mass. 271; Chester Glass Co. v. Dewey, 16 Mass. 94; Proprietors of the Canal Bridge v. Gordon, 1 Pick. 297; First Parish in Sutton v. Cole, 3 Pick. 232; Salem Mill Dam v. Ropes, 6 Pick. 23; Willard v. Newburyport, 12 Pick. 227; Spaulding v. City of Lowell, 23 Pick. 71; Old Colony R. R. v. Evans, 6 Gray, 25; City Hotel v. Dickinson, 6 Gray, 586; Treadwell v. Salisbury, etc., 7 Gray, 393; Whittenton Mills v. Upton, 10 Gray, 582; Commonwealth v. Smith, 10 Allen, 448; Richardson v. Sibley, 11 Allen, 65; Brown v. Winnisimmet Co., 11 Allen, 326; Monument National Bank v. Globe Works, 101 Mass. 57; Proprietors of Locks, etc. v. Nashua and Lowell R. R. Co., 104 Mass. 1; Attorney-General v. Tudor Ice Co., 104 Mass. 239; Lyndeborough Glass Co. v. Mass. Glass Co., 111 Mass. 315; Morville v. American Tract Society, 123 Mass. 129.

All the reasons which exist in favor of holding mere private trading corporations, the members of which are usually the only persons who can suffer by an ultra vires contract, to the limits of

their chartered powers, apply with equal force to the case of contracts made by the directors of a railroad corporation; and there is also the additional reason in such cases that such corporations, being quasi public and charged with public duties, any contract by which their corporate assets are put at the hazard or pledged for the expenses of an independent enterprise, tends directly to deprive the corporations of the power to perform those public duties, the discharge of which by them is the leading object of their creation. Commonwealth v. Smith, 10 Allen, 455; Treadwell et als. v. Salisbury Mfg. Co., 7 Gray, 404; Pinkerton v. B. & A. R. R., 100 Mass. 527-541; Whittenton Mills v. Upton, 10 Gray, 558–598. The alleged contract attempted to be created by the instrument sued on is in effect a contract of partnership, and therefore ultra vires and void as to the defendant corporation under the decision in Whittenton Mills v. Upton, 10 Gray, 558.

This case is not within the rule of the cases which hold that where a corporation has borrowed money or purchased property for purposes not authorized by its charter, and has used the money or sold the property, it cannot defend against a suit for the money or the price of the property on the ground that it was ultra vires to borrow the money or buy the property, as in Parish v. Wheeler, 22 N. Y. 506; Bradley v. Ballard, 55 Ill. 413.

The payment of a portion of this subscription does not estop the corporation to set up the invalidity of the alleged contract, for legal capacity cannot be enlarged by estoppel. Loan Association v. Topeka, 20 Wall. 665-667; Merriam v. B. C. & F. R. R., 117 Mass. 244.

GRAY, C. J., delivered the opinion of the Court:

These actions are brought upon an agreement, signed by the Old Colony R. R. Co. in the sum of $6000, and by the Smith American Organ Company in the sum of $5000, and by other corporations, partnerships and individuals in various sums, amounting in all to more than $200,000.

The agreement is in these words: "Boston, January 23, 1872. We, the undersigned subscribers, hereby agree, each with the other, that we will contribute towards any deficiency (should there be one) that may arise towards defraying the expenses of the World's Peace Jubilee and International Musical Festival, to be held in Boston, commencing on the 17th of June and closing on the 4th of July next, in such proportions as the amounts affixed to our several names bear to the whole amount subscribed; provided that no subscription shall be binding until the whole amount subscribed shall reach the sum of two hundred thousand dollars, and that no expenditure be incurred except under the authority of the executive committee, which committee shall represent the subscribers, and consist of ten or more persons, who may be chosen by the first six subscribers hereto."