Weiss v. Mauch Chunk Iron Co.

The opinion of the court was delivered, July 2d 1868, by Sharswood, J. 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 [301] that amount was to be issued directly to such of the creditors of Weiss, Lippincott & Miner as should agree to accept it in payment of their debts. The stock was to be held by the company until all the debts were paid, and the then balance of it transferred to Weiss, Lippincott & Miner. It was then an agreement by Weiss, Lippincott & Miner to subscribe to the stock of the proposed corporation to the amount of the appraised value or price of their firm property, and an agreement by the corporation to issue shares of stock in the special manner provided for in the contract. It may be admitted that they recognised and ratified this arrangement after the charter of incorporation so as to make it binding on them. If the Mauch Chunk Iron Company violated this agreement by refusing to issue such shares when and as they were obliged to do according to its terms, Weiss, Lippincott & Miner would be entitled to maintain an action to recover such damages as they might be. able to show that they had sustained,but certainly would have no right to sue for the sum or price in money at which their effects were appraised. There is a broad distinction between an agreement to pay a certain sum of money in shares of stock or other property, and an agreement to issue such shares or deliver such other property in specie. In the former case the refusal to pay in property gives the creditor' the right to demand the sum of money, and to maintain an action of debt. In the latter his only claim is for damages in an action of assumpsit or covenant, according as the agreement is under seal or not. “ The action of debt,” says Buller, “ is founded upon a contract either express or implied in which the certainty of the sum or duty appears; and the plaintiff is to recover the sum in numero, and not to be repaired in damages, as he is in those actions which sound only in damages, such as assumpsit,” &c.: Buller’s Nisi Prius 167. Wherever indebitatus assumpsit is maintainable, debt also is: Walker v. Witter, Dougl. 6; United States v. Colt, Peters’s C. C. Rep. 145. Where a special agreement has been so far performed that nothing remains but a mere duty to pay money, which it is for the plaintiff to show, a general count is all that is required: Bomeisler. Dobson, 5 Whart. 405. To render a note payable in property admissible under the common counts, it must contain a promise to pay to the plaintiff a sum certain, either in money of property: Taplin v. Packard, 8 Barb. S. C. 220. Citations might be multiplied to the same effect: Bracegirdle v. Hincks, 24 Eng. Law & Eq. 524; Crockett v. Moore, 3 Sneed (Tenn.) 145; Butcher v. Carlile, 12 Gratt. 521. Here, as we construe this contract, there was no duty to pay money, but to deliver stock to parties other than the plaintiffs, in the first instance, and subsequently, on a certain event, to them; in other words, a special agreement to perform certain things in futuro, not a duty arising immediately on the transfer by the plaintiffs [302] of their effects to the corporation: Kelly v. Foster, 2 Binn. 8. There arose no debt or duty even to deliver stock to the plaintiffs, but to their creditors or such of them as would accept it in payment, and they were not to be entitled to the balance “ until all the debts shall be fully paid.” The plaintiffs contend that on their construction of the instrument, the corporation was bound to pay the debts in money if the creditors would not accept the stock in payment. They might do so indeed, and appear in some instances to have done so, but we can perceive no such engagement on their part, express or implied. 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, [303] though there was before the Act of June 13th 1836, that wherever a statement could be filed, debt would lie. In Camp v. Bank of Owego, 10 Watts 130, where the question was whether the endorser of a promissory note may maintain an action of debt against the maker, Judge Rogers, after a clear opinion in favor of the action on general principles, turns to the Act of 1806, and quotes the language of the tenth section as conclusive. It is evident that his attention was not callee] to the fact that the tenth section had been supplied by the Act of 1836, which had been passed hut a few years before. So as to Loose v. Loose, 12 Casey 538. There a reference to the Act of 1806 was not necessary, but Camp v. Bank of Owego, is affirmed, and it is added, “ wherever a statement is authorized by the act there the form of debt is given.” This is but a repetition of the dictum by Judge Rogers to the same effect, evidently grounded on the connection between the fifth and tenth sections. Literally, indeed, this case would not fall within the fifth section. It is not founded “ on a verbal promise, book account, note, bond, penal or single bill, or all or any of them.” Perhaps by a verbal, a parol promise was intended, a written promise as well as one by word of mouth. But it would rather be a stretch of construction to say so. However this may he, we are of opinion that the question whether an action ought to he debt or special assumpsit, is no longer in Pennsylvania affected by the words of the tenth section of the Act of 21st March 1806. On the whole, then, we think that the remedy of the plaintiffs was by an action on the case in assumpsit, in which it would have been necessary for them to have filed a special count on this agreement, and that the learned judge below was right in holding that an action of debt against the corporation defendants could not be maintained. 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 [304] due to miners, quarrymen and other laborers employed by such companies and for machinery, provisions, merchandise, country produce and materials furnished for said companies respectively.” The claim arising on the breach of the agreement in suit was not a debt for machinery, provisions, merchandise, country produce or materials furnished for the company. It is true that part of the effects of Weiss, Lippincott & Miner were of the character here described, but there was no debt for- them. The act evidently contemplated an ordinary sale and delivery to the company in the course of its usual business. To apply the provision of the law to this particular agreement would be a strange perversion of justice. Creditors of the plaintiffs, who have accepted what now turns out to be the worthless stock of this company in payment of their debts, are to be made to pay the plaintiffs in money for their effects which in foro eonscientice were originally their (the creditors’) own property. They are to be visited with a double loss. There are some claims the statement of which carries on its face a sufficient answer to them. 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.