Weichardt v. Hook

Mr. Justice Gordon delivered the opinion of the court, March 5th 1877. The defendants below, plaintiffs in error, complain that an error was committed by the Court of Common Pleas, in entering judgment against them for want of a sufficient affidavit of defence. [436] Whether such complaint be well or ill founded depends upon the character of the facts set forth in the affidavit. If a case is thereby-made out which ought to have been submitted to a jury, or which, upon demurrer, would have warranted a judgment for the defendants, then the decision of the court was wrong; but if such a case be not made out, the complaint is without merit. The notes in suit were given by the defendants to. the plaintiff in part consideration for the transfer of thirteen hundred shares of the stock of the Hook Smelting Company, as set forth in the agreement of the parties, dated January 1st 1875. The affidavit alleges nothing involving the bona fides of these notes, but sets up, by way of estoppel or defence, an agreement made for the parties by Messrs. Hanson and Worrell, their attorneys, who, it is said, had full power and authority to make such agreement and to adjust and settle their disputes and differences. The agreement thus referred to, provided that the papers, books, business and affairs of the Hook Smelting Company should be examined by the plaintiff, and if he should find that the business of the company had been conducted according to law, and that its stock and assets corresponded truly with the showing of the books, and that the company was solvent, the plaintiff, in such case, was to cancel the notes and to refund the money paid; on the other hand, the defendants were, simultaneously with such delivery and payment, to transfer to Hook the thirteen hundred shares of capital stock mentioned in the agreement of January 1st 1875, discharged of all claims of them, the said defendants, and of any and all other persons on their account. As a defence, this showing is open to several objections. The paper set forth can be operative only as an agreement; for, as an award, it is defective for want of a definite submission; but,' as an agreement, its execution nowhere appears, either by the signatures, assent or acts of tho parties. As, therefore, what is not stated in an affidavit of defence is to be presumed not to exist (Lord v. Ocean Bank, 8 Harris 384), we must set it down as a fact that neither the plaintiff nor defendants ever took a single step in the direction of its execution, and that it is, therefore, void for want of ratification. Passing this, the conditions therein contained are mutual and dependent, and it thence follows that neither party can set it up without at least a tender of performance. This contract, in itself, neither satisfied the nótes nor toansferred the stock. Either of these things could result only from a performance of its conditions, and without this it was inoperative. As the plaintiff had no right in or to the stock until he tendered payment of the money and cancellation of the notes, so the defendants had no right to such money or cancellation until they tendered a transfer of the stock. Hence it would be manifest injustice for a court to treat the notes in suit as cancelled, and thus give the defendants the advantage of a contract with which they have never complied. The judgment is affirmed.