59 Pa. Super. 415 | Pa. Super. Ct. | 1915
Opinion by
1. Section 27,' art. 5, of the constitution relating to
In construing the rule the clause relating to the form of the decision should be read with the other clauses, and particular regard must be had to the provision that the trial of cases at law without a jury shall so far as practicable be conducted as cases are now tried before juries. Thus viewing the rule we reach the conclusions: first, that the benefits of the act of 1905 may be obtained by presenting a point in writing equivalent in substance to a point for binding instructions, and in case of its refusal moving for judgment in accordance with the provisions of that act; second, that the substantial benefits flowing from detailed findings may be obtained by presenting pertinent written points and excepting to the answers; third, if no points for findings of fact or conclusions of law are presented the court may make a general finding or decision without stating separately and distinctly the facts and conclusions of law which led to it. It follows that the objection that
2. The action was brought pursuant to a decree of the court having jurisdiction of the receivership, not only authorizing but directing the receiver to collect the balances unpaid on the subscriptions to the capital stock of the company, and to institute suits for that purpose. It was brought to enforce payment of an overdue debt arising out of an express contract, made and to be performed in Pennsylvania, not to enforce a liability imposed by the statutes of Delaware. Therefore, it was not incumbent on the plaintiff to prove the laws of that state and compliance therewith.
Nor can we agree with appellant’s counsel that in order to recover the entire balance it was incumbent on the plaintiff to prove that all was needed to pay debts of the corporation. The defendant’s promise was absolute and was neither expressly nor impliedly a promise to pay upon call or as needed. The case is plainly distinguishable from those based on a contractual or statutory obligation of the latter kind. The debt was due long before the receiver was appointed, and by the decree he was expressly directed to collect it. Whether proof by the defendant that it was not needed to discharge existing liabilities of the corporation would be admissible, notwithstanding the decree, and would defeat the action, are questions which do not arise on the pleadings and evidence and will not be discussed. It is sufficient for present purposes to say that proof that it was needed was not essential to the plaintiff’s prima facie case.
There is a well-recognized distinction between original subscriptions for stock in a corporation to be formed and subscriptions for shares in an existing corporation. With regard to the latter class (to which the subscription in question belongs), it has been said “the contract is not between the subscribers, except as it is shown that the subscriptions were mutual considerations for each
3. At the time the subscription for stock was made the plaintiff corporation had not complied with the conditions, which the Act of April 22, 1874, P. L. 108, makes a prerequisite to the right of a foreign corporation to do business in this commonwealth; nor were the provisions of the Act of June 8, 1911, P. L. 710, complied with
It is argued that the solicitation and acceptance of subscriptions for stock within the state, after the company was organized and began business, was in itself a doing of domestic business, which subjected the company to the state statutes. In support of this proposition, counsel cite: Allen v. Pullman Palace Car Co., 191 U. S. 171, and Attorney General v. Electric Storage Battery Co., 188 Mass. 239. In the latter case it was held that while the state statute was inapplicable to any business or place which belongs entirely to interstate commerce, it was applicable to a corporation engaged in interstate commerce, which had at the same time a place of business “for other purposes.” Conceding the general principle involved in that ruling it does not apply here. The other transaction or transactions which subject a corporation engaged in interstate commerce to the state statute must amount to the doing of business within the meaning of that statute, and they must not be merely incidental to the carrying on of the branch of interstate commerce for which it was organized and in which it was engaged. The acceptance of a subscription for new stock has been spoken of as a purchase and sale, and for many purposes it must be so regarded. But it cannot be said that the company was engaged in the business of selling stocks, any more appropriately
It follows from the foregoing that the request for a finding in the defendant's favor was properly overruled. The remaining questions arise upon exceptions to the rulings made during the trial.
4. It is well settled in this state that the cross-examination of a witness should be confined to matters in regard to which he has been interrogated in chief, or to such questions as may tend to show bias, interest or relation to the party calling him, or to test his knowledge, integrity or accuracy of statement: Glenn v. Philadelphia Traction Company, 206 Pa. 135. To permit a party to lead out new matter, constituting his own case, under the guise of a cross-examination is disorderly and often unfair to the opposite party: Hughes v. Westmoreland Coal Co., 104 Pa. 207. This principle which has been reiterated in numberless cases, justified the rulings which were made upon the cross-examination of W. S. Dowdy.
The defendant alleged that his subscription was ob
Still more plainly so were the questions, whether when he became a director in February, 1911, the company was operating at a profit, what was the financial standing of the company at that time and whether he was chairman of a committee to devise and submit a plan for putting the company on a paying basis.
The ninth assignment of error should be particularly noticed. As the witness did not become connected with the company until February, 1911, and in November, 1909, did not even know of its existence, it is apparent he had no personal knowledge, derived from participation in the affairs of the company, as to its earnings at that time. The fact that he afterwards examined the books of the company and thereby obtained secondhand information as to its earnings in November, 1909, was not in itself a material fact as the case stood when he was asked the question quoted in this assignment. We assume that what the books showed as to that
All the assignments of error are overruled and judgment is affirmed.