Basshor v. Forbes
36 Md. 154
Md.
1872
Check Treatment
Alvey, J.,

deliyered the opinion of the Court.

The question as to the admissibility of the parol evidence offered by the defendant in the Court below, and which was ■objected to at the time by the plaintiffs, but admitted by the Court subject to exception, is not before this Court for review, ■inasmuch as the Court was not at any subsequent stage of the trial invoked to exclude such evidence, and exception taken to its refusal so to do. Whether the evidence was really admissible, the Court below does not appear to have definitively decided. All that was done by the Court was to allow the evidence to be given, subject to the exception of the plain*165tiffs, which might be insisted on at some later period in the course of the trial, when the question of the admissibility or inadmissibility of the evidence could be better understood than at the moment when offered. This course is frequently pursued, in order to facilitate the trial, and as a means of more fully understanding the relation and bearing of the proffered evidence to and upon the issue involved, than can be well seen in the early progress and development of the cause. The practice in this respect is most generally regulated by rule of Court; bnt, in all such cases, if the party objecting to the evidence intends to insist upon his objection taken in the first instance, he should, before or at the close of the evidence, apply to the Court, either by motion or prayer, to exclude the evidence objected to, and thus have the question of the admissibility of the evidence definitively disposed of, and to the final ruling on this latter application the exception, if desired, should be taken. If this is not done, the benefit of the original objection cannot be availed of here, for the obvious reason that there has been no final decision of the question in the Court below; and the mere statement in the bill of exception that certain evidence was offered and objected to, but admitted subject to the objection, to be disposed of at a subsequent stage of the trial, does not by any means raise the question here as to the admissibility of such evidence. This proposition was, in effect, decided in the case of Coates & Glenn vs. Sangston, 5 Md., 121.

Rut if the question of the admissibility of this evidence was properly before us, we could have no hesitation in declaring the evidence admissible for the purpose for which it was offered. It was not, as supposed by the learned counsel for the plaintiffs, liable to objection on the ground that it tended to contradict, add to, or vary the written contract between the plaintiffs and the Oakland Coal and Iron Company. It had reference to a collateral matter, and about which the contract was silent. The individual liability of the defendant as stockholder in the company is not provided for by the terms *166of the contract, but, if it exists at all, can only exist as a statutory incident to such contract, and as collateral to the obligation of the company. The liability of the stockholder is, in one sense, founded in contract, it is true, but such liability is so far collateral to and independent of that of the corporation on the contract itself, that it may be waived or discharged without in any manner affecting or impairing the direct corporate liability. It was the object of the evidence offered to show that the individual liability of the stockholder w;as waived and excluded by showing that the plaintiffs had entered into the contract with the company with the distinct understanding that they were to look to and rely upon the security furnished by the company, alone and exclusively, and that without such understanding the contract would not have been made on the part of the corporation represented by the defendant. This evidence, we think, was competent and admissible, and the objection taken to it wholly untenable.

! The rule of exclusion, relied on by the plaintiffs’ counsel, pis in ño way infringed by the introduction of the evidence ¡objected to ; for it is well settled by the most unquestionable j authorities, that proof is admissible of any collateral parol agreement, or independent fact, which does not interfere with j the terms of the written contract, though it máy relate to the ■ same subject-matter; and whether such collateral agreement | was made, or independent fact occurred, contemporaneously J with, or as preliminary to, the main contract in writing, is 1 quite immaterial. Lindley vs. Lacy, 17 Com. B., (N. S.,) 578; 2 Taylor’s Evidence, secs. 1038, 1049. And this principle has been very fully and explicitly sanctioned by this Court in the cases of McCreary vs. McCreary, 5 G. & J., 147; Creamer vs. Stephenson, 15 Md., 211.

Having said that the parol evidence objected to was admissible for the purpose for which it was offered, it follows, necessarily that, in our opinion, the Court below was right in granting the defendant’s second prayer. That prayer submitted to the jury to find, that if it was agreed at the time of *167the purchase from the plaintiffs of the boiler, steam engine and appurtenances, that they, the plaintiffs, should rely only upon the responsibility of the company, and the sufficiency of the mortgage and note taken for the price of the articles sold or furnished, for payment, then the plaintiffs were not entitled to recover. Of the correctness of this proposition we think there can be no doubt.

(Decided 22d May, 1872.)

It is contended however that because it was proved that the parties to the contract did not know, at the time it was entered into, of the existence of the statute imposing the individual liability upon, the stockholders for the debts of the corporation, therefore the plaintiffs cannot be supposed to have intended to waive such liability. But if it be true, as was submitted to the jury to find, that it was distinctly agreed that the plaintiffs were to rely alone upon the liability and security of the company, and no other, it would be any thing but just or fair to allow them to hold the defendant liable upon the theory suggested. We think in reason it cannot be done.

As to the defendant’s third prayer, we think that was properly granted also. If the facts therein enumerated were found by the jury, they clearly constituted a discharge and satisfaction of the claim, by the express agreement of the plaintiffs; and of course with that being done, all pretence for holding the defendant liable ceased to exist.

Finding no error in the rulings of the Court below, its judgment will be affirmed.

Judgment affirmed.