Frank v. Morrison

58 Md. 423 | Md. | 1882

Guasón, J.,

delivered the opinion of the Court.

This suit was instituted to recover from the appellant the money due for instalments on five shares of stock of the Franklin Land and Loan Company, for which he had •subscribed. The declaration contains five counts, the first four being common counts, and the fifth being a special count on the .contract, and it alleges that the defendant, prior to the first day of April, 1876, subscribed for, and agreed to take five shares of the stock of the Franklin Land and Loan Company, of Baltimore City, and to pay four hundred dollars therefor, in weekly instalments of one dollar per share, in each and every week, till the full payment therefor, and that the said defendant has failed to pay the weekly instalments of one dollar on each of said shares, for more than one hundred and fifty weeks past, and although demanded, he has not paid the same and the plaintiffs claim eight hundred and fifty dollars. To this declaration five pleas were filed, and the cause was tried by the Court, without a jury, and four exceptions were taken, three to the admission of evidence, to the admissibility of which objection had been made, and the fourth to the granting of the plaintiffs’ three prayers, and to the rejection of the defendant’s last five prayers, his first having been granted.

The first and second exceptions were taken to the admission of the book of by-laws of the Franklin Land and Loan Company, and Article 3 of said by-laws in evidence. This book had been issued to the appellant by the secretary of the Franklin Land and Loan Company, and had been in his possession ever since it was so issued, and it contained the number of shares issued to him, and the entries of the payments made by him to the Company, and it had been produced by him at the request of the appellees, and it was offered in connection with the evidence of Charles G. Wilson, who proved that the by-laws contained in it were the only by-laws the company ever had; that the company acted under said bylaws, and its business had been transacted in accordance with their provisions. In addition to this proof, the appellant was a member of the company, and we cannot perceive any objection whatever to the admissibility of tlie evidence.

The third exception was taken to the admission in evidence of the decree of the Circuit Court of Baltimore City, appointing the appellees receivers to wind up the affairs of the Franklin Land and Loan Company, and directing them, among other tilings, to make all collections of outstanding indebtedness to the corporation, and to institute all such proceedings at law and in equity, as might be necessary for the purpose of enforcing its rights. This decree had been passed with the consent of all the parties to the suit, and was clearly admissible to prove the due appointment of the appellees as receivers, and their authority to institute and conduct this suit. The appellant then offered in evidence the entire record of said equity proceeding.

Wliat we have said in disposing of the third exception applies to the appellant’s fifth prayer, which asked an instruction that the decree, offered in evidence, was without authority in law, and the plaintiffs were not entitled to recover in this action. The Circuit Court of Baltimore City had jurisdiction of the matter in controversy, and of tlie parties, and its decree was passed with the consent of all the parties to the proceeding, and is perfectly valid and binding upon them. The fifth prayer was therefore properly' rejected.

The second, third and fourth prayers, are based upon the theory that the appellees are not entitled to bring and maintain this suit in their own names, and the second and third assign as a reason why they cannot, that the hill in the equity suit was not filed for the. purpose of winding up the affairs of the corporation and dissolving the same. It is true that there are authorities which assert that receivers are mere stakeholders, who merely hold the property for the time being, for the benefit of those who may he entitled thereto; that the title to the property is not in them, arid that all suits brought by them must he instituted in the name of the parties who are entitled to the property. But in this State this question has never been raised or decided in any case until 1877, when it was raised in the case of Hayes, Receiver, vs. Brotzman, 46 Md., 521. In that case, as in this, the hill was filed to wind up the affairs of the corporation through the hands of a receiver, and it was objected that the receiver could not sue in his own name, and this Court said: “As the cause of action in this case arose before the appointment of' the receiver, it is necessary, in order to maintain the action, in Ms own name, that it should he made to appear he has had conferred upon him the power and authority to sue.” In that case, as in this, the decree authorized the receiver to prosecute suits at law and in equity, and it was held that this was sufficient authority for him to sue in his own name. In the case now before us the receivers have had conferred upon them express authority to sue, as appears in the record of this case when before this Court at October term, 1880, 55 Md., 399. It was then held' by this Court that the receiver could sue in his own name independently of the Act of 1868, ch. 471, secs. 185 to 195. And such has been the uniform practice in this State, without the right to sue having been questioned until the case of Hayes vs. Brotzman, 46 Md., 524, 525. See Dorsey’s Case, 48 Md., 461; Musgrave’s Case, 54 Md., 161; Rider’s Case, 54 Md., 429; Frank’s Case, when before this Court before, 55 Md., 399. The second, third and fourth prayers were, therefore, properly refused.

The sixth prayer asked an instruction that there was no evidence in the cause of a contract of a subscription as set forth in the fifth count of the declaration, and that under the pleadings, the verdict must he for the defendant. The declaration alleges that the appellant “subscribed for and agreed to take five shares of the stock of the said Franklin Land and Loan Company, of Baltimore City, and to pay four hundred dollars therefor, in weekly instalments of one dollar per share, in each and every week,” &c., when the contract offered in evidence is that the defendant agreed to take five shares of stock, and pay therefor four hundred dollars per share, and pay therefor in weekly instalments, &c. The contract provided that the appellant should pay instalments weekly on each of said shares, and the non-payment of the instalments, dec. was the gravamen of the complaint, and we are of opinion that there was no substantial variance between the fifth count of the narr., and the contract. See Borden Mining Co. vs. Barry, 17 Md., 419. In that case this Court said, quoting the language of Chief Justice Marshall, in Sheeby vs. Mandeville, 7 Cranch, 217, “Courts being established for the purpose of administering real justice to individuals, will feel much reluctance at the necessity of deciding a cause on a slip in pleading, or on the inadvertence of counsel. They can permit a cause to go off on such point, only when some rule of law, the observance of which is deemed essential to the general administration of justice, peremptorily requires it.'" The Court then says, with reference to the case before it, that the variance was not fatal nor even material; that the rate of freight to be paid need not have been set out in the narr. as the suit was not brought to recover freight earned, but damages on account of the failure of the defendant to load and unload the plaintiff’s boats. So in this suit, the price to be paid for the shares of stock was not sought to be recovered ; but only weekly instalments for dues and interest and fines, until the company should have money enough in the treasury to pay every shareholder four hundred dollars for each share he held of the company’s stock. The failure to pay such instalments and fines, being the gravamen of the complaint from which this suit arises. The sixth prayer was, therefore, also properly refused.

(Decided 11th July, 1882.)

The three prayers offered by the appellees, and granted by the Court, are almost exact copies of prayers in other cases, which have heretofore been before and received the sanction of this Court. See Dorsey’s Case, 48 Md., 461; Musgrave’s Case, 54 Md., 161; Reeder’s Case, 54 Md., 429, and Frank’s Case, 55 Md., 399. These prayers stated correctly the law of the case and were properly granted.

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

Judgment affirmed.