Cottenham's rule the consideration for the promises of the promoters was the withdrawal or withholding of opposition to the act of incorporation. The benefit received was the birth of the corporation. Until the company had been brought into existence by the passage of the act and organized thereunder, it was incapable of entering into a binding contract. The benefit which it received from the withdrawal of the opposition was therefore received at a time when it was still incapable of contracting. The theory on which a corporation may be held to the performance of the provisions of the promoters' contract if it accepts the benefits thereof, is that it enters into a new contract when it accepts these benefits. If the benefit of the promoters' contract is received at a time when the corporation is still incapable of contracting, it cannot be bound by an implied contract entered into at that time, any more than it could be bound by the original contract of the promoters.68 The situation is quite different from that which arises when a corporation after its complete organization deliberately accepts a conveyance or transfer of property, or the rendition of services, contracted for by its promoters. It should, before closing the discussion of the questions relating to Lord Cottenham's rule, be stated that while the corporation is not bound by the promises of its promoters made in consideration of the withdrawal of opposition to the granting of the corporate charter, there is no reason, except a possible one of public policy, why such agreement should not be enforced against the promoters individually.69 68. See, however, Morton v. Hamilton College, 100 Ky. 281, 38 S. W. 1, 35 L. R. A. 275, where a corporation was held bound because of benefits received before its organization. 69. Bland v. Crowley, 6 Exch. 522, and see Lord Howden v. Simp son, 10 Ad. & El. 793, affirmed, sub nom. Simpson v. Lord Howden, 9 Cl. & F. 61, 3 Ry. Cas. 294. On the question of public policy see Scottish N. E. Ry. Co. v. Stewart, 3 Macq. 382, 408; Vauxhall Bridge Co. v. Spencer, 2 Mad. 356. § 59. Obligation of corporation to pay for services in procuring contracts accepted by it. The question as to the liability of a corporation because of the acceptance by it, of the benefits of a contract made for it by its promoters, arises in another aspect when the promoters agree that the corporation shall pay for services rendered in procuring for it stock or bonus subscriptions, or other contracts, and the corporation accepts the subscriptions or contracts procured by these services but refuses to pay compensation therefor. This situation arose in Weatherford, etc., Railway Co. v. Granger.70 In that case the plaintiff had agreed to assist the promoter in raising a bonus for a then projected railroad company, and the promoter promised that the company would pay the plaintiff for his services. The bonus was raised and accepted by the company, and the plaintiff brought suit against it to recover the reasonable value of his services. The court said "Now, when it is said that when a corporation accepts the benefit of a contract made by its promoters, it takes it cum onere, it is important to understand distinctly what is meant. There is, so far as this matter is concerned, a radical difference between a promise made on behalf of the future corporation in the contract itself, the benefits of which the corporation has accepted, and the promise in a previous contract to pay for services in procuring the latter to be made. This is well illustrated by the facts of the present case. Here a proposition was made on behalf of the company, by its promoters, that if a bonus should be subscribed and paid to it, it would build its road between certain points, and would carry coal at a certain stipulated rate. By accepting the bonus, the company became bound to fulfil the stipulations of that contract. That was the burden which it took with the benefit of the agree 70. 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837, (reversing 23 S. W. 425; and see 22 S. W. 70, rev'd, 85 Tex. 574, 22 S. W. 959). Quoted in Jones V. Smith, (Tex.) 87 S. W. 210. See also Wright v. St. Louis ment. But it also appears that one of the promoters promised the plaintiff, that if he would assist in procuring subscribers to the bonus, the company would pay him for his services. This was no part of the contract the benefits of which were taken by the defendant. The benefits of a contract are the advantages which result to either party from a performance by the other; and in like manner its burdens are such as its terms impose. A more accurate manner of stating the nature of the plaintiff's demand is to say, that the defendant has accepted the benefit of the plaintiff's services and should pay for them. It is true, in one sense, that the company has had the benefit of plaintiff's services, and it is equally true that it would have had that benefit if the services had been rendered under an employment by the subscribers to the bonus; and yet in the latter case it could not be claimed that the company would be liable for such services, unless payment for them by the company were made one of the terms of the contract between the company and the subscribers." The true test of the liability of a corporation because of its acceptance of the subscriptions or contracts obtained as a result of services rendered under a contract with the promoters, is whether the corporation has done any act from which an agreement to pay the compensation promised by the promoters may be implied. If, as a result of the efforts of one employed by the promoters, persons whom he has interested come to the corporation and offer their subscriptions, it can hardly be said that the corporation can not accept these subscriptions without impliedly agreeing to pay for the services by which the subscribers' interest was aroused. One not employed by the corporation does not, by arousing the interest of others, create a class of persons with whom the corporation may not do business without subjecting itself to a collateral responsibility. But if, as would generally be the case, the corporation accepts and uses the subscription lists gotten up by the employee of the promoters, it undoubtedly accepts the benefit of the promoters' contract of employment, and if it does so with knowledge of the facts, it impliedly agrees to pay the promised compensation. § 60. Materiality of circumstance that original contract made by less than majority of incorporators. A few decisions will be found, holding that in order that the corporation may be bound by an acceptance of the benefits of a contract made on its behalf before complete organization, it must appear that the making of such contract was authorized by a majority of the incorporators. The leading case is Bell's Gap Railroad Co. v. Christy." The court in that case said, "We do not desire to controvert the principle, established in England, and to some extent recognized in this country, that when the projectors of a company enter into contracts in behalf of a body not existing at the time, but to be called into existence afterwards, then if the body for whom the projectors assumed to act does come into existence, it cannot take the benefit of the contract without performing that part of it which the projectors undertook that it should perform. Conceding to this principle its full force and effect, we are unable to see its application to the facts of this case. It may very well be that where a number of persons not incorporated are yet informally associated together in the pursuit of a common object, and with the intent to procure a charter in the furtherance of their design, they may authorize certain acts to be done by one or more of their number, with an understanding that compensation shall be made therefor by the company when fully formed. And 71. 79 Pa. 54, 59, 21 Am. Rep. 39. This decision is followed in Tift v. Quaker City Natl. Bank, 141 Pa. 550, 21 Atl. 660, 38 Am. & Eng. Corp. Cas. 339 and Tygert Allen Fertilizer Co. v. J. E. Tygert Co., 7 Pa. Dist. Ct. 430, 21 Pa. C. C. 193, affirmed, 191 Pa. 336, 43 Atl. 224. See also Morton v. Hamilton College, 100 Ky. 281, 38 S. W. 1, 35 L. R. A. 275, and Clarke v. Omaha & S. W. R. R. Co., 5 Neb. 314, 323; Low v. Connecticut & Passumpsic Rivers R. R., 45 N. II. 370, 379. Cf. Low v. Connecticut & Passumpsic Rivers R. R., 46 N. H. 284, 297. if such acts are necessary to the organization and its objects, and are subsequently accepted by the company, and the benefits thereof enjoyed by them, they must take such benefits cum onere, and make compensation therefor. But the projectors or promoters of the enterprise within the meaning of the rule referred to, evidently must be a majority at least of such persons, and not one, two, or three, or a small minority thereof. Such minority can have no more authority to bind the association or corporation in its incipient or inchoate condition than they would have to bind it if fully organized." It is difficult to apprehend the materiality of the question whether the original contract was authorized by a majority, or a minority, of the incorporators unless the majority can actually bind the corporation.72 If the liability of the corporation rests upon an acceptance of benefits after its organization, the number or identity of the persons who ineffectively assumed to act for it before that time, is a matter of no moment.73 § 61. Acceptance must be with full knowledge. Before it can be held that the corporation has by an acceptance of the benefits of the promoter's contract assumed the burdens 72. See ante, § 47, note 4, also post, § 84, note 14. 73. Jones v. Smith (Tex.), 87 S. W. 210, speaks of the adoption of the unauthorized or officious acts of others. In Low v. Connecticut & Passumpsic Rivers R. R., 45 N. H. 370, 378, the court says that it is no defense that there was no authority to make the antecedent request or that no such request was ever made. See also same v. same, 46 N. H. 284, 298. This statement is quoted in Paxton Cattle Co. v. First National Bank, 21 Neb. 621, 643, 33 N. W. 271, 281, 17 Am. & Eng. Corp. Cas. 1, 59 Am. Rep. 852, in which case the court says, (21 |