58 Pa. 295 | Pa. | 1868
The opinion of the court was delivered, July 2d 1868, by
The whole case of the plaintiffs rests upon the foundation that the agreement of April 8th 1856 was a sale by them to the Mauch Chunk Iron Company, for the price at which the property should be appraised by the referees named, payable in stock of the company. Is this the legal effect of the instrument ? The counsel for the plaintiffs admit that it is drawn in a bungling manner; for it certainly does not express on its face any such engagement as is contended. There is no agreement by the company to pay the sum ascertained by the referees. The whole argument for plaintiffs rests upon the meaning attached to the word “price.” They contend that in legal intendment an agreement by one party to sell and convey property to another for a certain price is that the vendee is to pay that price to the vendor. So it would be if the agreement stopped there. But it goes on to stipulate how that price or sum of money is to be disposed of, by which it appears that it is not to be paid to the plaintiffs. “ And it is further agreed that the stock of said company shall be subscribed and taken by the creditors and the said company, and held by them until all the debts shall be fully paid, and the then balance of the stock shall be transferred over to Weiss, Lippincott & Miner, to their entire use.” Looking at the whole instrument, we think it clear that it was an agreement to form a joint stock company or organize a corporation, especially as there was at the date of the agreement no such corporation as the Mauch Chunk Iron Company. The real and personal effects of the firm of Weiss, Lippincott & Miner were to constitute the capital stock or a part of the capital stock of the corporation when it should be organized. The value of such effects was to be ascertained by an appraisement, and stock of the corporation to
It might be contended, indeed, that though on the principle of the common law and in other states, an action of debt could not be maintained on such an agreement as this, a different rule has been established in this state. By the “ Act to regulate arbitrations and proceedings in courts of justice,” passed March 21st 1806, 4 Sm. L. 826, § 10, a process by summons in a plea of debt was provided in the case of any debt due to a plaintiff, “ either by bond, note, book account, rent, damage or assumption,” words broad enough, certainly, to cover this and almost every other case in which assumpsit or covenant would otherwise have been the appropriate remedy. That act was intended to dispense with the profession of the law, to make every man his own lawyer. After a full and fair trial it signally failed. Perhaps no statute ever passed made more work for lawyers or brought greater gains to the profession. Requiescat in pace. This section of the act of 1806 was supplied and repealed by the Act of June 18th 1836, Pamph. L. 573, entitled “ An Act relating to the commencement of actions.” It was there enacted that “personal actions except in cases where other process shall be especially provided, shall be commenced by a writ of summons,” the form of which is then given, and the plea is to be “ in an action of debt (or as the case may be),” see sections 2 and 3. Judge Stroud omitted this tenth section from his edition of the digest (6th edition, 1841, p. 245), as also did Mr. Dunlop (Dunlop’s L. 235), the latter expressly giving as his reason that it was supplied by the act of 1836. The exception of other process especially provided, evidently refers to writs of capias ad respondendum and of foreign attachment provided by the same act. What remains of the Act of 1806, bearing on this question, is the fifth section, providing for the filing of a statement. But there is nothing in that as to the form of action. “ In all eases where a suit is brought for the recovery of any debt,” a statement may be filed in assumpsit as well as in debt, not in covenant indeed (Dixon v. Sturgeon, 6 S. & R. 25), because it is confined to actions “ on a verbal promise, book account, note, bond, penal or single bill, or all or any of them.” The words “ rent, damages or assumption,” are not used in the fifth section in regard to statements. There is no reason for saying then,
But even if the form had been assumpsit the plaintiffs could not have had a verdict in their favor on any of the counts in their declaration. In no one of them is the agreement set out in Time verba, or declared on according to its legal effect: Steph. on Pl. 433; Gould’s Pl. 160. In every count it is laid as an agreement to pay a sum or price in money, which we have seen was not its true construction.
If the view we have taken of the agreement is correct, then it is clear that the stockholders could not be made personally liable for its breach in any form of action. By the Act of Assembly passed March 27th 1854, Pamph. L. 215, entitled “A further supplement to an Act entitled an Act to encourage manufacturing operations in this commonwealth,” it is provided “ that the stockholders in all companies incorporated in pursuance of the provisions of the act to which this is a supplement, and the several supplements thereto, including this act, shall hereafter be jointly and severally liable in their individual capacities, only for debts
We think, then, that on the whole case of the plaintiffs, as well the parts offered and rejected as those given in evidence, there was nothing to go to the jury. This renders it unnecessary to examine separately the twenty-eight errors assigned. If some of them, considered in thesi, would have to be sustained, we would not reverse and send back the cause for another trial, when it is clear that in no event can the' plaintiffs recover in the form of action which they have chosen.
Judgment affirmed.