51 Pa. Super. 104 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff brought this action of assumpsit to recover the purchase money paid by him for stock in a mining corporation, alleging that the defendants had contracted to deliver the certificate for the stock upon his payment of the contract price, that he had completed the payment of the full amount of the purchase money on February 25, 1907, that he had repeatedly thereafter demanded that the defendants deliver to him the stock certificate which they had failed to do, that on or about September 15, 1907, he demanded of the defendants that they deliver to him the stock certificate or repay him the money which he had paid for it on or before the last day of September, 1907; that defendants failed to comply with this demand, and that on March 12, 1908, he had caused the defendants to be notified that he rescinded the contract for the purchase of the stock and demanded a return of his money, and that defendants having failed to repay the money he brought this action to recover. The plaintiff recovered a judgment in the court below and the defendants appeal.
The appellants do not question the right of the plaintiff to rescind the contract and demand a return of his money, nor that he took the si eps necessary to work a rescission,
The appellants admitted that they had all joined in an undertaking to promote a mining operation; they had formed a corporation, of which they had absolute control; they, as the corporation, had entered into a contract to purchase from themselves as individuals certain property for which they were to be paid in stock of the corporation, which stock was to be issued to them, or to some of their number. An undivided interest in the property which they had thus agreed to convey to the corporation was owned by an outside party, and in order to enable them to raise funds to buy that outstanding interest, they entered into an arrangement among themselves to sell 4,800 shares of the stock, which, as individuals, they were entitled to receive from the corporation as payment for the property. All of the defendants joined in authorizing Holgate to make sale of these 4,800 shares of stock, in which they were all jointly interested, and to receive payment for the same from the parties to whom he made sales. Holgate, acting for all the defendants under the authority thus conferred, did make sale of a part of the stock to this plaintiff and did receive the money of plaintiff in payment for the same. The money which Holgate thus received was by all of the defendants admitted to have been applied to their joint use. There is no question that the defendants have all joined in appropriating to
The second question argued by the appellants involves the propriety of the action of the court below in permitting a verdict and judgment to stand against the four persons at present defendants, which did not also include, as a defendant, a fifth party. The plaintiff had brought the action against the four appellants and Walter Schlager, as' defendants. After all the evidence had been submitted at the trial he moved to amend the record by striking out Schlager as a defendant, which motion the court below al
The judgment is affirmed.