Scarlett v. Academy of Music

46 Md. 132, 1877 Md. LEXIS 31

Opinion

Miller, J.,

delivered the opinion of the Court.

This is a suit by the appellee, a corporation incorporated under the 'general laws of this State authorizing the formation of corporations, against the appellant, a subscriber to its stock, to recover an assessment or call on the shares so subscribed. It is admitted-the defendant subscribed for $500, or for ten shares at $50 each, by signing with others the following agreement:

“ We, whose names are hereto written, agree to subscribe for stock, in the Baltimore Academy of Music,’ to the amount set opposite our names respectively, and to pay for the same fifty dollars per share, the par value thereof, in such instalments, and at such times as may be fixed by the board of directors. This subscription however, not to be binding until stock amounting in the aggregate at par to two hundred thousand dollars shall he subscribed.”

In the course of the trial three exceptions were taken to rulings upon the admissibility of evidence, and one to the granting of the plaintiff’s single prayer, and the rejection of the ten instructions asked for by the defendant. The questions thus presented are now before us for review.

1st. If the objection in the first exception had been confined to the admissibility of the testimony of Mr. Kennard as to what Mr. Cohen, a deceased witness, had testified to in a former suit between the same parties in Baltimore City Court, it would have presented a question of some difficulty. Rut it is obvious, tbe objection is not thus restricted. The exception begins by stating that the plaintiff offered in evidence its charter, the subscription contract signed by the defendant, the testimony of Kennard as to what Cohen had sworn to in the former case, and the record of the proceedings of the board of directors containing certain resolutions relating to the call upon subscribers for a first instalment (that for which this suit is brought) of forty per cent, on their subscriptions, and then it is stated, “to the admissibility of all which testimony alleged, and especially to the testimony of Mr. Cohen as delivered in Baltimore City Court, as proven on this trial by Mr. Kennard, defendant excepted.” On this it is not even stated what ruling the Court made, but we may assume that the objection was overruled, and the testimony admitted. It is plain however, that the objection is to cdl the testimony thus offered ; for that is shown by the fact that special attention is called to part of it as well as by the general words “to all which testimony.” There can be no question as to the admissibility of any of this testimony save that of Kennard, and all of it except that being clearly admissible, there was no error in overruling the objection to the whole. It has long been the settled practice of this Court that an appellant loses the advantage of his objection if any part of the evidence covered by the objection is admissible. Budd vs. Brooke, 2 Gill, 220; Emory & Gault vs. Owings, 3 Md., 185; Wright vs. Brown, 5 Md., 31; Colvin vs. Warford, 20 Md., . The objection stated in the second exception is of the same character, and encounters the same fatal difficulty.

2nd. The third exception was taken to the refusal of the Court to allow the defendant to prove that when solicited to subscribe by Mr. Devries, he did so on the faith of certain representations made by the latter to the effect that the building would be built in a location on or near Baltimore street, convenient to the hotels and main thoroughfares, so that it would advance the interest of the Baltimore trade, by being an additional attraction to country merchants to come to Baltimore, and in that way would indirectly benefit all, and that all subscribers would be allowed an opportunity by the Academy to have a voice in deciding on a site for the building; that on these representations the defendant subscribed, and would not have done so without them ; that none of these representations were fulfilled, and Mr. Devries thereupon called upon defendant, and told him that the representations made not having been fulfilled, he had the option to retain or to cancel his subscription, and defendant replied that he would not stand by his subscription, but consider it can-celled. As this was said in argument to be the main and substantial ground of defence, we have given it a careful consideration. It appears from the previous part of this exception, that Mr. Devries was a well known merchant of Baltimore, who, with others, had undertaken the task of procuring subscribers to take stock in an Academy of Music, to be built in that city for the public benefit, and as such, being himself a subscriber and stockholder, had obtained the defendant’s signature to the contract given in evidence. When the defendant was about to detail the statements made to him by Devries, the plaintiff’s counsel stated in open Court, that Mr. Devries was not the agent of the plaintiff, for the purpose of making any representations to bind the plaintiff, and it does not appear that this statement of counsel was denied. There is certainly nothing to show that he had any authority from the corporation to make these alleged representations, or to release any subscriber from the obligation of his written contract of subscription, or that such representations were fraudulently made, or that there was any collusion between the plaintiff and Devries to defraud the defendant, by making or having them made. In support of the admissibility of this evidence, much reliance was placed upon the case of Swatara Railroad Co. vs. Brune, 6 Gill, 41. In that case, the subscribers, by the terms of the written subscription contract, agreed to pay $50 per share for the stock subscribed “in such manner and proportions, and at such times as shall be determined" by the company. It was then by agreement admitted that its president and treasurer were appointed by the company, a committee to come to Baltimore, and procure subscriptions for its stock, and that at the time the defendants subscribed, this committee represented to them that Tide Water Canal stock could be made available by the company, and would be taken at par by it in payment of any subscriptions to its stock, and that the defendants made their subscription, relying upon this representation and promise. The Court answer the objection, that the defendants, by setting up this defence, were attempting to contradict and vary the written contract by parol proof, in this way: “ 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 to or vary the written instrument cannot be argued in this case. A plaintiff cannot admit a fact, and then insist that there must he written proof of it, or it is no fact in the case.” A careful examination of that case has convinced us it is clearly distinguishable from this, and that what was there decided furnishes no guide for the determination of the question now under consideration. In Angelí & Ames on Corp., sec. 531, it is stated as the result of the-authorities, that “ generally parol representations or agreements made at the time of subscribing for stock, are inadmissible and void, unless fraud is shown.” This general rule, though some few cases may be found in apparent conflict with it, it sustained by the decided weight of authority. Among the many other cases that might be cited in its support we refer to Conn. & Pass. River Railroad Co. vs. Bailey, 24 Verm., 465; Piscataqua Ferry Company vs. Jones, 39 New Hamp., 491; Johnson vs. Crawfordsville Railroad Co., 9 Ind., 280; Thornburgh vs. Newcastle & Danville Railroad Co., 14 Ind., 499 ; Smith vs. Plank Road Co., 30 Ala., 650 ; Railroad Company vs. Leach, 4 Jones Law Rep., 340 ; East Tennessee & Virginia Railroad Co., vs. Gammon, 5 Sneed, 567. The facts in several of these cases hear a striking similarity to those in the present case. Thus in Piscataqua Ferry Co. vs. Jones, the written contract of subscription was in like terms, and it was proposed to prove by parol, that at the time the defendant subscribed, it was represented to him by the person, a member but not an officer of the corporation, soliciting the subscription, that the purpose of the corporation, was to build a horse ferry boat. In fact a steam ferry boat was afterwards built, and the enterprise proved unfortunate. The Court held this evidence entirely inadmissible, sustained the general rule, and assigned this very sensible reason why it should apply specially to cases for subscription for stock: “The defendant's putting upon paper an unconditional promise to pay, may have induced others not only to subscribe but to pay, and his attempts now to shield himself by this private understanding may be a fraud upon others who may have thus been induced to subscribe and pay.” Here the defendant’s name was first on the subscription paper which he signed. It was quite competent for him to have added in writing to his signature, the terms of the representations On the faith of which he asserts he made the subscription. If he had done this, no after subscriber could have been misled or induced to subscribe by the fact of his subscription, without other conditions than those on the face of the paper itself. Not having done so, it seems to us to be a case in which the general rule is most appropriate, and that the defendant cannot be allowed to add by parol testimony, other conditions to the terms of his written contract. For these reasons we affirm the ruling excluding this testimony.

3rd. One of the questions raised by the instructions asked by the defendant, is whether there was sufficient notice given of the call upon the subscribers for the instalment sued for. It appears that the board of directors on the 7th October, 1870, passed a resolution that in case the committee previously appointed for that purpose, should conclude the purchase of a site for the building, the treasurer should notify the subscribers that the first instalment of forty per cent, will be payable on a day to be fixed by the president, within thirty days thereafter, at the Farmers’ and Merchants’ Bank, and that at the meeting of the board, on the 31st of October, 1870, the committee reported the purchase, and the treasurer reported that he had called the assessment as directed, payable on the 10th of November following. The notice of this call, purporting to be signed by the treasurer, was in effect as follows : “ The stockholders of the Academy of Music of Baltimore City, are hereby notified that the first instalment of forty per cent., will be due and payable on the 10th inst., (tomorrow,) at the National Farmers’ and Merchants’ Bank,” and it was proved that this notice was published in a newspaper printed in Baltimore City, on the 9th and 10th of November, 1810. From this and other evidence contained in the record, and which need not be stated at length, it was, we think, clearly competent for the jury to find that the call was duly made by the board of directors, that Mr. Cohen was the then secretary of the corporation, and was duly authorized to give the newspaper notice of the call, that the time and place of payment was fixed and designated by the board of directors, and that such designation of time and place, was in accordance with the resolution of the board of the 1th of October, 1810, that is to say, that the instalment called for was made payable at the designated bank, on a day fixed by the president, within thirty days after the contract of purchase of the site was concluded by the committee. We do not mean to be understood as saying that the finding of all these facts was essential to a recovery in this case, but the fact that there was sufficient evidence to authorize the jury so to find, meets and answers the objections set up in several of the instructions asked for by the defendant. Section 49 of Article 26 of the Code, was substantially re-enacted by section 65 of the Act of 1868, ch. 411, and it has heen decided that the personal demand or notice by publication required by each of these sections, is a condition precedent to the right of a corporation to sue subscribers for assessments. Hughes vs. Antietam Manufacturing Co., 34 Md., 316; Scarlett vs. The Academy of Music, 43 Md., 203. But there is nothing in either of them prescribing for what time the notice, if given by advertisement, shall be published before the day of payment. Each, however, allows the period of ninety days after the notice has been-published for a stockholder to pay, before his stock can be forfeited, or he can be sued on the call-, and this is all the indulgence the law gives to him. He is not required to pay at the time of payment fixed by the notice at the peril of forfeiting his stock, or of being sued on the assessment, but has the liberal time of ninety days after publication of the notice, within which he can avoid both forfeiture and suit hy paying what is demanded of him. We are therefore of opinion if is immaterial whether the notice be published for only one, or for any number of days before the time of payment mentioned in it. All that the law requires is, that the notice shall he given hy publication in a newspaper printed nearest the place where the principal office of the corporation is located, and one such publication before the day fixed for payment is sufficient. It follows there was no error in the rejection of the defendant’s first, second, third, fourth, fifth and tenth prayers.

4th. By the terms of the contract which the defendant signed, the agreement is to subscribe for stock in the “ Baltimore Academy of Music.” The corporate name of the plaintiff is “ The Academy of Music of Baltimore City.” The declaration avers that the “Baltimore Academy of Music” mentioned in the contract was in fact the plaintiff, and that the contract was intended to he, and was in fact made with the plaintiff. As to the law on this subject there is no difficulty. It is well stated in Angell & Ames on Corp., sec. 647. The name in the contract does not correspond exactly with the true corporate name of the plaintiff, but it does so substantially. The proof shows there was no other corporation in the City of Baltimore which could possibly set up any pretence to this subscription, and all the subscriptions to the plaintiff’s were taken like this, in the name of the “ Baltimore Academy of Music,” and that when the enterprise was started it was commonly known hy that name. This was quite sufficient to authorize the jury to find the averments of the declaration to he true, and that the defendant in fact subscribed and intended to subscribe for ten shares of the capital stock of the plaintiff, under the name of the “ Baltimore Academy of Music,” and the finding of this fact was left to the jury in terms sufficiently explicit, hy the plaintiff’s prayer. The. further objection that the defendant was not bound hy his subscription, because Mr. Devries was not the agent of the plaintiff is wholly untenable. His obligation rests upon the terms of the contract, and it matters not whether Devries, who solicited him to sign it was a mere volunteer in obtaining subscriptions, or was expressly authorized so to do by the corporation. There was therefore no error in the rejection of the defendant’s sixth, seventh and eighth prayers.

(Decided 1st March, 1877.)

5th. The condition of the subscription is, that it is ‘ ‘ not to be binding until stock amounting in the aggregate at par to $200,000 shall be subscribed,” and it is contended that this means that that amount must be made up by subscriptions other than those on the paper which the defendant signed. This objection goes to the extent of saying that if the subscriptions on this paper had amounted to $200,000, no one of the subscribers thereto would be bound, unless the same amount had been subscribed on another paper by other parties. That is not, we think, the true construction of this condition. It means that the subscription shall be binding on every subscriber when that sum is subscribed, and the amount subscribed by each one, whether he may be the party sued for his subscription or not, is to be included in making up this aggregate amount. The defendant’s ninth prayer was therefore properly rejected.

It does not appear from the record that any objection was taken at the trial to the plaintiff’s prayer, which was granted, because of the assumption therein of any fact, and we cannot therefore, under Rule 4, regulating Appeals, (29 Md., 2,) hold it defective for that reason. We find no error in the granting of it which would justify a reversal of the judgment.

Judgment affirmed.