42 Pa. Super. 399 | Pa. Super. Ct. | 1910
Opinion by
This was an action of assumpsit to recover $1,000, which, it was alleged by plaintiff, was paid by him to defendant under a contract of the latter to deliver to him therefor stock in a corporation then in process of formation. The statement of claim alleges that there was no other consideration for the payment than the promise and agreement of defendant to transfer the stock, and that the said consideration wholly failed by reason of the nonperformance by the defendant of his obligation. The contention of the defendant was that the plaintiff agreed to put $5,000 into the company, and that the'contract under which the $1,000 was paid, was not between the plaintiff and the defendant individually, but between the plaintiff and defendant as an officer or agent of the company. This was the primary question to be determined. There was evidence from which it could be determined either way and therefore it was for the jury. If the jury determined that question in the defendant’s favor, in other words, found that the contract was with the company acting through its officer or agent, and the money was paid to the defendant as such officer or agent, then the plaintiff could not recover under the pleadings, whatever might be his remedy against the company, or his right to recover against the defendant under different pleadings. If, on the other hand, the jury determined the question in the plaintiff’s favor, in other words, found that the money was paid to and received by the defendant in his personal capacity only, upon his unconditional personal undertaking to deliver stock
We need not discuss, seriatim, the several portions of the charge assigned for error. Enough has been said to indicate wherein we differ from the learned trial judge, and the grounds upon which we sustain the fourth to the ninth assignments inclusive. It will be seen also from what we have said, that the plaintiff was not entitled to an unqualified affirmation of his point, the refusal of which is the subject of the tenth assignment of error. The manner in which the case should be submitted to the jury has been sufficiently indicated.
The offer embraced in the second assignment might well have been rejected because of its vague and indefinite character, If the plaintiff deemed it important to show in rebuttal
The judgment is reversed and a venire facias de novo awarded.