Swatara Rail-road v. Brune

6 Gill 41 | Md. | 1847

Magruder, J.,

delivered the opinion of this court.

This is an action of assumpsit brought in Baltimore County Court by the appellants, and to recover the amount of the subscriptions by the defendants to the company. Upon a verdict taken for the plaintiff’s, subject to the opinion of the court, upon a statement of facts, and with an agreement that the court should make such inferences from the facts as the jury might, it was the decision of the court that the plaintiffs were not entitled to recover. We are called upon to decide whether this was a correct decision.

The claim of the plaintiffs is resisted upon various grounds, any of which, if sustained, will justify the judgment of the court below.

The subscription paper, which is the foundation of the action, is in these words: “We whose names are hereunto subscribed, do promise to pay to the president and managers of the Swatara and Good Spring Rail-road Company, the sum of $50 for every share of stock set opposite to our respective names, in such manner and proportions, and at such times as shall be determined by the president and managers of the said Company, in pursuance of an act of the General Assembly of this Commonwealth, entitled, an act,” &c.

This paper has the signature of the defendants, and opposite to it is written “ five shares,” to recover the whole amount ($250,) claimed to be due in virtue of their subscription, this suit was instituted.

Among the admissions in the statements of the case, are the following: “ The individuals who, at the time of obtaining the said subscriptions, were and still are the president and treasurer of the Company, came to Baltimore for the purpose of obtaining subscriptions to the stock, having been appointed a committee for that purpose. At the time the subscription of the defendants was obtained, this committee represented to them that Tide Water Canal stock could be made available by the plaintiffs, and would be taken at par in payment of any subscriptions to this Company. It is also admitted that the defendants made their subscription relying on said representation and promise, and further that they had refused to subscribe when no such representation and promise were made.” The plaintiffs insist that they are entitled to demand payment of the amount of subscription and money, and are not bound by the representation and promise of the committee. The defendants insist that they are not bound to pay, except in Tide Water Canal stock, and the suit is brought, not because of any refusal by the defendants to pay the canal stock, (which, it would seem, they were always ready to pay,) but to recover $250, due by them and recoverable in an action for money had and received, or upon an insimul computassent.

If the representation and promise which led to this subscription, which induced the defendants to agree to take five shares of this stock, (to be paid “ in the manner, as well as in the proportions and at the times ” to be determined by the president and managers of this Company,) had been made by an individual plaintiff in any suit, it would scarcely be contended that notwithstanding, and indeed, in violation of the promise and representation, parties making them could recover in any such form of action.

It has been said, indeed, that the promise by the defendants is in writing, and this is an attempt by parol proof to contradict and vary the contract. But it does not appear that if the defendants had been compelled to prove the undertaking and representation, they would have been obliged to resort to parol testimony. The fact, then, to be proved, is admitted, and admitted, perhaps, because of a knowledge that the defendants could have produced, if it was required, proof to which no such objection could be made. The evils to be apprehended from the admission of oral testimony to add or vary the written instrument, cannot be urged in this case. It is a part of the case stated not to be denied, that such representation and promise wrere made, and the court might legitimately infer, from the admission, that this promise and representation were the only inducements to (the consideration for) the promise by the defendants. A plaintiff cannot admit a fact, and then insist that there must be written proof of it, or it is no fact in the case.

No doubt it is a rule that written contracts are not to be added to or varied by oral proof; but it is well settled that there are exceptions to this rule, and if this had been a controversy between two individuals, and the plaintiff admitted that he made this representation and promise, can it be questioned that those, who had to decide the controversy, might legitimately conclude, that such a case was within one or more of these exceptions, and that parol testimony was admissible to contradict or to avoid such a contract.

This misrepresentation and promise, however, was made by individuals, officers of the Company indeed, but who, in taking and procuring these subscriptions, were but agents of the plaintiffs, and non constat that they had any authority to make any such representation, or to enter into any contract in regard to the manner in which the subscriptions to the stock were to be paid. All of this would be entitled to consideration, if these subscribers were the plaintiffs, suing the Company for refusing to them the shares of stock, to which their subscriptions entitled them upon tendering in payment Tide Water Canal stock.

We are now to assume that this was a pari of the contract. It may have been made a part of the contract without authority, and because of this the plaintiffs may not be bound to fulfil that contract; but surely the plaintiff ought not to disavow the act of its agent, in a si/it brought to enforce the contract made by that agent. The defendant is not bound to pay in gold and silver that which, it was the understanding of the parties actually contracting, should be paid in Tide Water Canal stock. So long, then, as the defendants are passive, do not claim a fulfilment of this contract, so long the plaintiffs ought not to complain while unwilling that the contract should be executed, as those who made it, must have understood it.

It will not be denied, that arguments entitled to consideration may be urged in opposition to this reasoning. We ought not, however, to forget, that the charter before us is the charter of a sister State, and its own courts are to be deemed the soundest expounders of its own charters and lawrs. No one can read the case of James McConahy vs. The Centre and Kishacoquillas Turnpike Road Company, 1 Penn. Rep. 426, without the most entire conviction that in that State, this would be a defence in this action. Those, then, who are supposed to have a right to complain, became interested in this work with a knowledge of the charter, and of the interpretation of it in their State; that of such a defence they might have availed themselves, and therefore they have no right to complain that others who have been deceived by the representations and promises of the a committee,” should claim the benefit of the decisions of the Supreme Court of Pennsylvania.

Without then examining other objections to the plaintiffs’ recovery in this case, this judgment is affirmed.

judgment affirmed.