219 Pa. 99 | Pa. | 1907
Opinion by
The first contention of the appellant is that the agreement declared upon is ambiguous, indefinite and uncertain and, therefore, not a binding contract. The plaintiff’s statement sets forth that in the year 1900^ and for a number of years previous thereto, it was engaged in the dry goods business in the borough of Bethlehem ; that during the month of October, 1899, the defendant called upon M. J. Person, its manager, and stated that he was interested in a store property located in the city of Milwaukee, Wisconsin, which had' been occupied for years as a dry goods store and which at that time was doing a very extensive business and making large profits; that he then proposed to the plaintiff that it lease said property from its owners and increase its capital stock from $50,000 to $125,000, of which increase $75,000 should be common stock and $50,000 preferred stock; that he would purchase from it $10,000 of the common stock and provide $50,000 cash for the $50,000 worth of preferred stock, with the option to him to purchase $5,000 additional of the common stock, and suggested that the proposition so made by him be submitted to the officers of the plaintiff company; that this proposition was submitted to its officers and accepted by it. By the terms of the agreement, as set forth in the statement, and which the jury have found that appellant made, he agreed, for a valuable consideration — the leasing by the appellee of property in which he was interested — to provide $50,000 cash for the $50,000 of preferred stock which he proposed the company should issue. There is nothing ambiguous, indefinite or uncertain about this. The terms of the agreement can be misunderstood by no one, and the first ques
But it is next contended that even if the proposition, as testified to by appellee’s witnesses, was sufficiently definite and certain for the purposes of a contract, there was no evidence of its acceptance by the company. There wras no action by the board of directors formally accepting the offer, and it was not necessary that there should be such action to bind the appellee as one of the contracting parties. It was necessary that the proposition be accepted before the appellee could be held to it, but its acceptance could be implied, and if, from what the company did, it intended that the appellant should understand it to have accepted his offer, and his conduct indicated that he regarded the same as having been accepted, he cannot be heard to say, in his effort to avoid his agreement, that it was not accepted. This is the rule as between natural persons, and no other applies when either or both of the contracting parties are corporations. The evidence from which the jury found that the proposition had been accepted was ample. It was first made by the appellant to Person, the director and general manager of the appellee. He called an informal meeting of its board of directors, at which four of the five were present. The appellant then repeated his proposition to these directors. A meeting of the board was thereupon regularly called for January 8,1900, at which all the members were present. The vice president of the company reported that a
A third contention of the appellant is that there was no mutuality of obligation in the alleged contract. Of this we need say no more than that the acceptance of his proposition made the agreement mutual.
The fourth reason given by the appellant why there should have been no recovery against him is that there was no performance on the part of the plaintiff of the conditions of the
The fifth and sixth complaints of the appellant are to the damages recovered and the measure of them adopted by the court in its charge. According to the evidence, there was an actual breach of the contract by the appellant, resulting in great loss to the appellee, and the only measure of damages that could have been fixed was the one given to the jury. Upon this point the learned trial judge said clearly: “Isay to you that this contract, as I have already said, was a contract to furnish cash. It was that pure and simple — furnish cash to the amount of $50,000. It was his duty to furnish that amount of cash, if you find that he entered into this contract. Then the amount of your verdict would be, if you find a verdict for the plaintiff, the difference between the $50,000 and amount of cash which he provided out of his own pocket, and the amount of cash that he was instrumental in providing for the use of the company, and that difference would be the amount of your verdict.”
The sixteenth specification of error is to the charge as a whole, and appellant’s sixth complaint is that it did not adequately present to the jury the questions involved. The charge was brief, and commendably so, for it was long enough to present with great clearness the three questions involved : First, did the appellant enter into the contract upon which the action was based l Second, did he break it % And, third, what damages should be awarded to the plaintiff if there was a breach ? If instructions were desired upon certain features of the case, they could have been asked for, and, if improperly given, would be subject to correction here. That the learned counsel for appellant knew this was their privilege is evident from the sixteen points submitted by them, fourteen of which were requests for specific instructions. These were given on some of the very features of the case to which it is now contended the trial judge should have referred in his general charge. He might have done so but for the points submitted to him; and he was not called upon to do so twice. Having said to the jury all that he was required to say to them to enable them to intelligently understand what the issue was be
The twentieth assignment of error complains of the permission given to the plaintiff to send out the statement of its claim with the jury. It was a mere calculation of the amount which the appellee claimed to be due under the evidence, and, in permitting it to go to the jury, the trial judge, with proper caution, said : “ I have permitted the plaintiff to send out a state-of what it claims to recover. I merely want to caution you by saying that that is not to be the amount of your verdict simply because the statement claims it. You will remember that the defendant claims that the whole amount of this $50,000 was paid for in, cash, and whilst the defendant does not send out a statement you are not to lose sight of what the defendant claims in that reference.” Under the circumstances there was no error in permitting the statement to go out. “ With reasonable caution on the part of the court, no unfairness can be practiced in sending out a paper such as this; of its consequences, no test is so good as experience, and that proves not only its fairness, but its great utility. Indeed, where accounts are submitted to a jury, it would be impossible to get along without it. It originated with mutual convenience and the agreement of parties; but it has prevailed, so long and so uninterruptedly, as to have grown to be a rule of practice, and as such we are not bound to disturb it. It is, .doubtless, susceptible of abuse; and the court ought to see that what purports to be a mere statement of particulars, be so in fact, that it be subservient only to purposes of calculation, and contain no item of which, at least, evidence has not been given; thus restricted, a statement of particulars will afford salutary assistance to jurors, who are seldom expert at accounts. There
By the twenty-first and last assignment we are asked to say that the court erred in admitting the certificate of the increase of the appellee’s stock, because the certificate of the secretary of state did not have upon it the great seal of the state of New J ersoy ; and, further, that it was not in the form required by the act of congress. No authority has been cited requiring a certificate of the increase of the capital stock of a foreign corporation to bear the great seal of its state, or that it cannot bo received in evidence unless certified as required by the act of congress. On the contrary, by the New Jersey statute it is declared that the certificate of the secretary of state, relating to increase of capital stock, shall be taken and accepted as evidence of such increase, if it shall certify that the assent of the stockholders to the increase has been filed in his office. Such was the certificate here, to which was affixed the official seal of the secretary of state.
All the assignments of error are overruled and the judgment is affirmed.