199 Pa. 198 | Pa. | 1901
Opinion by
The important question in this case, by which all the others are more or less affected, is whether an answer in equity of a corporation, sworn to by an officer on his personal knowledge, is entitled to the benefit of the equity rule that a responsive answer is evidence, only to be overcome by the testimony of two witnesses, or of one witness with corroborating circumstances, or whether it is to be regarded as mere pleading.
The precise origin of the rule has been the subject of difference of opinion among text writers, as is shown by the learned referee in this case. But the reason for it is fairly apparent. Cases in equity are those in which the law affords no adequate remedy. They are therefore exceptional, and before a party
But whatever its origin the rule is settled, and is a part of universal equity practice. The respondent is brought into court without his consent, and put to compulsory answer and disclosure of his knowledge on the subject of the suit for the benefit of his adversary. By the action of the plaintiff the testimony of defendant is thus made evidence, and it is only proper and just that if the plaintiff does not find it all in his favor, he should be required to overcome it by a preponderance of evidence to the contrary. No sufficient reason has been presented why a corporation should not be entitled to the protection of the rule. It is said that a corporation cannot answer under oath, but only under seal. This is conceded, but it is purely technical. A corporation can only act through the persons of its officers or other agents. Its corporate seal is not action, but only evidence of action by the proper officers. When therefore to the answer under seal there is added the oath of an officer on his own knowledge the whole becomes a corporate act, with all the advantages to the plaintiff of compulsory disclosure of the truth which he would have had in a suit against an individual, and he should take such advantages in the same manner cum onere.
The point has not been much discussed in Pennsylvania, but the opinion of this court was indicated by the late Chief Justice Sterrett in Riegel v. American Life Ins. Co., 153 Pa. 134, 143; and in Waller v. Kingston Coal Co., 191 Pa. 193, 202-203, an express ruling in accordance with our present views was made by the court below, and necessarily by this court in affirming the decree on his opinion.
The learned referee was of opinion that “the very great weight of American authority is contrary to the view ” of appellant, but the authorities do not sustain him. If we take
This error as already said affects, to some extent, nearly all the other assignments, but we proceed to consider such of them as our present light enables us to dispose of.
There was no basis in equity for this bill, and it should have been dismissed on the filing of the answer. It prays for discovery and account from the defendant. But the duty of discovery and account was on the plaintiff himself. He was an employee as manager, in charge of the entire business; the books were kept by him, or under his direction by persons paid by and responsible to him; he was entitled to a fixed percentage of gross premiums received, the amount of which was easily ascertainable from books which he as manager was bound to keep less certain expenses he as manager was bound to pay and to show. There was no discovery called for by the bill of anything which he could not at any time ascertain from the evidence under his own control, and no account which it was not his duty to render to the defendant, with the burden of proof upon him all the way through. If he had- presented an account showing a balance in his favor which defendant had refused to pay, he would have had a cause of action pursuable at law. But the case was put at issue on bill and answer, taken by agreement from the trial list and referred, and the referee has reported that the question of jurisdiction was not raised until several hundred pages of testimony had been taken. We will not, therefore, dismiss the bill now, but endeavor to reach an end of the controversy.
The first three assignments of error relate to the expenses charged by the referee to the plaintiff. A summary of such expenses was presented by plaintiff’s bookkeeper as the referee reports “ in a gross sum which cannot be examined or verified in detail,” while on the other hand defendant’s expert accountant made up a summary from the books. The referee not being satisfied with either made up and reported a schedule of his
The fourth assignment raises a question which would be of some difficulty if squarely presented. Plaintiff was entitled by his contract to “ twenty per cent of all gross premiums re ceived by the company,” less expenses, etc. In the business done at the home office, the full premiums written in policies were received by the company in cash, but on business done outside, the agents deducted their commissions first and the company only received in cash the premiums after such deduction. The result was that (after allowing for cancelations and returns) the total gross premiums written were $307,760.14, while the total gross premiums received by the company were only $281,946.30. On which amount should the twenty per cent be calculated ? The referee discussing the question under the heading “ the meaning of the words in the contract twenty per cent of the gross premiums,” found that gross premiums meant premiums written. But it is to be noted that this wholly ignores the word “ received,” which was the word used by the parties and which presumably refers to the amount actually paid in to the company. We are, however, saved the necessity of deciding this question. Strickland, the defendant’s expert being on the stand, testified that “ we have agreed ” upon the gross premiums as $307,760.14. The distinction now made between premiums written and premiums received was not apparently then made. There was some testimony that the president of the defendant company had submitted the question to a friend in the business and had been advised by him that the understanding of the trade would construe the contract to include gross premiums written. We cannot say that had it not’ been for the agreement as above set forth, the plaintiff might not have followed up the line of evidence as to a usage of the trade that would have influenced the construction of the contract. This assignment must therefore be overruled.
The. fifth and sixth assignments relate to the amount paid to
The seventh, eighth and ninth assignments relate to the conduct of the plaintiff. While the testimony is overwhelming that it was not in accordance with the usual and prudent management of such business, yet we see no sufficient reason to dissent from the referee’s finding that it was not reckless or fraudulent. But after April, 1897, his conduct in general was insubordinate, and his action in keeping the board of direction dead locked, thus making his own power as manager absolute and irresponsible was totally without even color of excuse, and would have justified his immediate dismissal. He was an employee in a quasi-fiduciary capacity, having the sole and entire management of the business. His first duty was of fidelity to his employers. He had a profitable contract with them, and when differences of opinion arose between him and the president of the company, the accident of a vacancy in the board of direction enabled him and his employee to hold the board at a standstill, and have his own way. The referee finds that in so doing he was but taking care of his own interest and was “justified in his conduct.” No authority nor any principle of law is cited to sustain this extraordinary doctrine, nor have appel
Decree reversed with directions to restate the account in accordance with this opinion. Costs to be paid by appellee.