Lieb v. Painter

Opinion by Rice, P. J., This was an action of assumpsit to recover $1,000, which, it was alleged by plaintiff, was paid by him to defendant under a contract of the latter to deliver to him therefor stock in a corporation then in process of formation. The statement of claim alleges that there was no other consideration for the payment than the promise and agreement of defendant to transfer the stock, and that the said consideration wholly failed by reason of the nonperformance by the defendant of his obligation. The contention of the defendant was that the plaintiff agreed to put $5,000 into the company, and that the'contract under which the $1,000 was paid, was not between the plaintiff and the defendant individually, but between the plaintiff and defendant as an officer or agent of the company. This was the primary question to be determined. There was evidence from which it could be determined either way and therefore it was for the jury. If the jury determined that question in the defendant’s favor, in other words, found that the contract was with the company acting through its officer or agent, and the money was paid to the defendant as such officer or agent, then the plaintiff could not recover under the pleadings, whatever might be his remedy against the company, or his right to recover against the defendant under different pleadings. If, on the other hand, the jury determined the question in the plaintiff’s favor, in other words, found that the money was paid to and received by the defendant in his personal capacity only, upon his unconditional personal undertaking to deliver stock [402] of the company therefor, and there was neglect or refusal on his part to perform within a reasonable time, then the question arises whether the fact that no stock was ever issued by the company, and this was through no fault of the defendant, or the fact that the defendant expended the money in the purchase of machinery and in other ways for the company’s benefit, or both facts combined would constitute a defense. We think not, unless the company’s failure to issue stock was attributable to some unwarranted action of the plaintiff. The case of Hudson v. West, 189 Pa. 491, while not exactly like the present in all its facts, is closely analogous in principle and sustains the foregoing conclusion. The case of Rose v. Foord, 96 Cal. 152; (30 Pac. Repr. 1114), cited in the appellant’s brief, is directly in point. It was there held that where the purchaser of shares of stock to be issued by a mining corporation pays the purchase price, and the corporation is prevented by an injunction from issuing the stock so that the vendor cannot perform his contract, the purchaser, after waiting a reasonable time for the repayment of the purchase money, may maintain an action therefore against the vendor’s administrator. As to the plaintiff’s remedy and the measure of recovery, the court said: “He was not confined to an action for damages for breach of contract to sell and deliver, and, indeed, such an action would have afforded him no redress, for the stock never having had an existence had no market value, and the rule of damages in such actions could not have been applied.” We need not discuss, seriatim, the several portions of the charge assigned for error. Enough has been said to indicate wherein we differ from the learned trial judge, and the grounds upon which we sustain the fourth to the ninth assignments inclusive. It will be seen also from what we have said, that the plaintiff was not entitled to an unqualified affirmation of his point, the refusal of which is the subject of the tenth assignment of error. The manner in which the case should be submitted to the jury has been sufficiently indicated. The offer embraced in the second assignment might well have been rejected because of its vague and indefinite character, If the plaintiff deemed it important to show in rebuttal [403] “that it was because of the defendant that no stock was issued,” he ought to have offered to show the facts from which the jury would be asked to draw that conclusion, so that the trial court, as well as the appellate court, could determine their relevancy and sufficiency for the purpose stated. The offers embraced in the first, and third assignments were to corroborate the plaintiff. This evidence, if admissible at all, was admissible in chief, and it is not clear that it was admissible in rebuttal, unless as argued by appellant’s counsel, the purpose was to contradict the defendant. But this was not stated as the purpose of the offers, therefore the court ought not to be convicted of error in rejecting them. “It is always the duty of a party making an offer when its admissibility is challenged, to state the purpose in such manner that the court may perceive its relevancy: Germantown Dairy Co. v. McCallum, 223 Pa. 554, citing Piper v. White, 56 Pa. 90. These assignments are not sustained. The judgment is reversed and a venire facias de novo awarded.