Gass v. Citizens' Building & Loan Ass'n

95 Pa. 101 | Pa. | 1880

Mr. Justice Sterrett

delivered the opinion of the court,

The verdict, in favor of the defendant in the feigned issue, if not demanded was fully justified by the uncontradicted testimony of the plaintiff’s principal witnesses ; and there appears to be nothing in the instructions complained of that could have unduly prejudiced the plaintiff’s case. His contention was that, as surety for his son-in-law, Hoagland, he executed the bond on which judgment was entered, with the verbal understanding or agreement that he should be released from all liability as soon as the loan of the Centraba Mutual Savings Fund Association to Hoagland, or “ old fund,” as it is termed, ran out or was paid. To maintain the issue, on his part, it was necessary for him to prove not only that the alleged understanding or agreement existed, and that he became a party to the bond on the faith of it, but that the savings fund loan had by its terms expired or was fully paid; and, if either of these essential facts was not clearly established by the testimony the issue was justly determined against him. It is v.ery evident from an inspection of the testimony that he not only failed to show that the loan referred to was paid or in any manner satisfied; but, on the contrary, he actually proved that it was still unsettled and payment of additional instalments had been demanded by the company. His son-in-law, Hoagland, for whom fie became surety in the bond held by the defendant, testified that the loan from the Centraba Mutual Savings Fund Association was not fully paid. Speaking of that association he says, “ it has not run out; they are trying to make an assessment now. I am now secretary of the company. The old association had run out, as we supposed, in January 1874; but there are debts that they are now trying to collect, and there is some property to be sold.” He further testified in substance that formal demand had been made on the members, of which he was one, for additional instalments to pay off the shareholders, and they would be compelled to pay, unless a sufficient amount was realized from collections and sales of property; and that he did not consider the association finally settled until all the judgments are collected and property sold. It was impossible for the jury, with such testimony before them, to escape the conclusion that the condition on which the plaintiff claimed he was to be released as surety had not yet been fulfilled.

The plaintiff’s testimony, tending to prove the alleged understanding or agreement on the faith of which he became surety for Hoagland, was received and submitted to the jury with appropriate instructions. The learned judge charged, in substance, that it was necessary for him to show clearly and satisfactorily that the board of directors had assented to the condition on which he proposed to become surety; that a mere talk on the subject among members of the board without arriving at any conclusion or agreement among themselves would amount to. nothing; that, if from all the facts and circumstances in evidence they found that the board of directors did agree that in case he should become surety for Hoagland he should be released upon the condition alleged; and if this consent of the board was communicated to him and he acted on it, the association would be bound thereby. This instruction was certainly quite as favorable to the plaintiff as he had a right to ask. Indeed the court, with great propriety, might have instructed the jury that, upon his own showing, the plaintiff was not entitled to a verdict.

The .only persons with whom the plaintiff appears to have had any communication on the subject of the suretyship, prior to the execution of the bond, were his son-in-law, J. J. Hoagland, and J. P. Ploagland, the secretary of the association defendant. It is not pretended that the former, by. his acts or declarations, could bind the association ; but it is claimed that it was bound by the statements of J. P. Hoagland, alleged to have been made at the time plaintiff signed the bond. This might have been so if it had been shown that, at the time the declarations were made, Hoagland was acting within the scope of authority confided to him by the board of directors, or that they were made in the course of business which the board authorized him to transact; but such was not the case. He himself testifies that he was not authorized by the board of directors to make any statement-to plaintiff on the subject of the loan or his release as surety, and that he had no authority from them to call upon him for any purpose. This is the only testimony on the subject of his authority to make any statement to plaintiff or transact any business with him on behalf of the board. It cannot be pretended that corporate rights may be thus frittered away, or liabilities created by loose and unauthorized declarations made by persons who at the time are not authorized to represent the cor poration in relation to the subject concerning which the declarations or representations are made.

There is nothing in any of the assignments of which the plaintiff has any just reason to complain.

Judgment affirmed.