The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-08-12
DECISION FOR
DEFENDANTS
tConcludcd from Page 81


plant for $4,000 and the second party
jointly agreed to pay for IL. 2. The party
of the second part as a further UNDER
taking among themselves, for their own
benefit and convenience. agreed to form
Il corporation and to subscribe to its capi-
tai stock, as well as to furnish milk. 1t
Is claimed that because this arrange
ment was entered into by the defendants
and included In the agreemnt between
the Lumber company and them, 1t does
not follow that their obligation to the
plaintiff was changed or modified in any
way. We think this Is a fair statement
OF plaintiffs contention. We have no
doubt that an agreement. such as tho
plaintiff maintains the instrument now
before us Is, could be made. But was
it made in the present case, and was 1t
SO understood by the parties?
The plaintiffs position Is sustained to
a great extent in the case of Davis, ct al.
VS.. Shafer, ct AL, so Fed. Rep. 764 dS92).
This case seems to stand alone. 1t was
disapproved in Davis. ct AL VS.. Barber,
ct al, 81 Fed. Rep. 1i5 In the following
language: II am aware that the fore
going views are In conflict with the
opinion of the circuit court for the West
ern district of Missouri in the case of
Davis VS.. Shafer (supra recently de-
cided by Judge Phillips. l have carefully
examined the manuscript opinion in this
case anu l. 1lnu myself u
in the conclusion there reached" And in
Davis, ct al, VS.. Jones (supra), the court
of appeals says:
"It is worthy OF notice. however, that
in the case last cited. Davis VS.. Shafer,
the conclusion reached that the contract
imposed joint liability, was influenced,
to some extent. by tho view entertained
by the court of the effect of a local stat
ute of the state of Missouri. CRevised
Statutes of 1889. sec 23SD, where the
contract was executed"
An examination of the cases In other
states ,convinces us that the weight OF
authority Is with the defendants. 1t does
not seem that contract like the one be-
fore us has been the subject of adjud-
cation in Pennsylvania. Riddle vs. Ste
vens. 2 s. & r. 5S6, relating to subscrip-
tions for the support of q pastor, Is cited,
but 1t has no particular applicability to
the case at bar. Davis VS.. Bedford, 70
Mich. 120, deals with a contract of
similar character to the one under con-
sideration. 1t was for the erection of a
creamery. which Davis and Rankin
agreed to build "for the sum of s4,5OO,"
payable in two instalments. This clause
follows: 'The subscribers thereto agree
to pay the above amount for said cream
cry when completed, the subscribers
agreeing to accept the same as soon as
completed" The contract has the fol-
lowing provision: "After said orEaniza-
ton (referring to the incorporation) is
completed. said company shall issue stock
to the subscribers, to the amount of their
subscription hereunto annexed" The
court in stating the facts says: "This
contract was subscribed by the names of
all the defendants, and opposite their
names appears the amount OF each indi-
vidual subscription, varying in amount
from $50 to $500 each.' The court con-
ctr 1n1 h run nc er
Dwolley vs. Dwolly, (supra), and held
the obligation was several.
CLAIM OF COUNSEL.
Plaintiffs counsel claim that the clause
specifically limiting the liability of the
subscribers to the amount of their in
dividual subscriptions account for the rul-
ings in the Michigan case, Davis VS.. Muir
ray (supra). and in the Nebraska case,
Davis VS.. Ravenna Co. (supra). We do
not think so. While the clause men-
toned made the question Of liability
clearer, it did not control the decisions.
The contract in each case was construed
as a whole, and in the last Michigan case,
the former case decided in 70 Mich, cited
above, Davis VS.. Bedford, where there
was no such clause as the one referred
to. is approved and sustained.
Another case, very similar to the one at
bar is Gibbons VS.. Grinsel, 20 Wis. 1865.
The contracts in both cases are substan-
TALLY alike.
Other authorities referred to in the
opinions of the judges in the cases cited
are along the same lines and interpret
similar agreements in the same way. We
do not think it is necessary to continue
the discussion to any greater extent.
1t would be premature for us now to
decide the exact nature of the obliga-
ton created by the contract upon which
the present suit is based. Whether suit
may be brought against each individual
to the stock for the amount of
his subscription, or whether suit should
be brought against the corporation con-
templated by the agreement. If such a
corporation was formed and received the
benefit of the contract these are ques-
tlons which are not before us now We
simply decide that the contract in the
case at bar does not impose a joint liza
bility upon the defendants.
1t was admitted at the argument that
several of the defendants were served In
an adjoining county and that no general
appearance had been entered for them.
1t was understood that as to these de-
PENDANTS their names should be stricken
from the record. Counsel may submit an
order covering this point.
Now, August II, 1902, the several de-
murrers in this case are sustained and
judgment thereon is given for defend
ants, with costs.