Regester v. Medcalf

71 Md. 528 | Md. | 1889

Irving, J.,

delivered the opinion of the Court.

The appellants, together with Edward L. Tunis and Alfred E. Hatch, appear by the record to have agreed among themselves to organize a hank under the Acts of Congress. Alfred E. Hatch was to he vice-president, and he, it is stated in evidence, was entrusted with the duty of making the preliminary arrangements for carrying out their plan. He entered into treaty with the appellee to become cashier of the banlc proposed to be formed. The appellee was then, and had been for some time previously, bookkeeper in the Manufacturers’ National Bank of Baltimore, and avers in his narr. that he was induced to resign that position and accept the office of cashier in the new bank of áppellants at a fixed salary for a year. Being told his services were immediately required, he was induced to resign at once, and enter upon the discharge of such duties as were required of him in defendants’ employ. This he avers he did, and after serving them for less than a month, the organization was abandoned, and the appellee was discharged. He alleges the contract was broken, and sues for a year’s salary which he contends he was entitled to. The defendants have pleaded that they never were indebted as alleged, and that they never promised as alleged. The defendants contended that they , never personally employed the plaintiff, or authorized any one to employ him; and that, although he may have been elected cashier, at a meeting of so-called directors, it was a conditional employment dependent entirely upon a finql and effective organization of the bank, which was ultimately abandoned, and thus worked the rightful discharge of the appellee.

Alfred E. Hatch does not seem to have been sued, but there is no plea in abatement and no question arises on that account. Edward L. Tunis, one of the defendants below, has not appealed. Why, can only be surmised. The other defendants below have appealed. The' questions for review arise wholly upon the rejection, by the Superior Court of Baltimore City, of the second, fourth and fifth prayers of the appellants.

The second prayer of the appellants asked the Court to say, that if the appellants were found to have agreed with the appellee to employ him for a year, as cashier, when the bank was organized, at twelve hundred dollars a, year, and that while in their service he made a false oath that' the capital stock had all been paid in, when, in fact, it had not been paid in, and it should be further found that afterwards the organization was abandoned, and the plaintiff (appellee) was dismissed from their service, then the dismissal was justifiable, and he was not entitled to recover.

The appellee contends that this prayer was properly rejected for want of evidence to support it, and the appellants insist that, as the record does not show that objection to have been made in the Court below, it can not be raised here. The fourth rule of this Court, which is invoked in support of this last contention, relates expressly and only, to granted prayers. This being a rejected prayer wo may, and ought to assume, in justice to the lower Court, that it was rejected on the ground that there was no sufficient evidence on which to rest it; for there certainly is none in the record certified to us. Unless the articles of association, together with the certificate of organization, had been filed with the Comptroller of the Currency of the United States ■ conform-ably to the requirements of sections 5133 to 5136 inclusive, of the Revised Statutes of the United States, the bank never became a corporation; and the provision of the statute in respect to false oaths was never applicable to it. There is no evidence in the record that either the articles of association or certificate of organization were ever filed with the Comptroller of the Currency. It was contended that, because the checks were not certified, therefore no money was paid in, and the cashier swore falsely. It was rather a violent presumption to ask the Court to make, when it did not in fact appear that the checks were not really good and would not be paid. Conceding, for the purposes of this decision only, that the theory of the prayer was right, it was properly rejected; for we must assume that the Superior Court had no more evidence than we have in the record.

The fourth and fifth prayers, of the defendants named in them, respectively, ask the Court to say that if the persons named in them were not present when the resolution electing the appellee cashier was passed, and that they did not subsequently ratify such resolution, then as against them the plaintiff (appellee) could not recover.

There was some evidence that there were directors of the proposed institution. How many composed the hoard does not certainly appear in the proof. These prayers ask the Court to say, in effect, that those who did vote on the election of the cashier were not authorized to hind the absentees; that when the election took place there was not a competent body to do what was done. If this was all so, still the prayers confined the plaintiff to recovery on the theory that what took place at the so-called election was valid and binding. It ignored the other aspect of the case, that Hatch might have been the duly authorized agent of the parties to procure a cashier. If these objections to those prayers can not be regarded as fully justifying rejection, still there was no error in their rejection, and the appellants have sustained no injury by their refusal; for their first and third prayers covered the whole case, and even more strongly for the appellants than the prayers the rejection of which we are considering.

The first instruction was conceded. By it the jury was told that if they found the plaintiff’s .employment was conditional only, and was not to be absolute unless the bank should become an operative organization; and that the organization thereof was finally abandoned, then no recovery could be had.

By the third instruction granted, at the instance of the defendants., the jury was told, that if they found the employment of plaintiff was conditional only, and was not to be effective unless the bank was fully organized, and that it was not organized, then they could not find for the plaintiff against the defendants or any one of them unless “ such one personally and expressly promised the plaintiff to pay him for his services.” The plaintiff asked no instruction, and took no exception to those granted to the defendants. The verdict was in his favor. We think the jury was sufficiently instructed in the interest of the defendants, and they have no just cause of complaint. There was no reversadle error, and the judgment must he affirmed.

(Decided 17th December, 1889.)

Judgment affirmed.