Electric Welding Co. v. Prince

• Decision Date: 05 January 1909
• Citation: 200 Mass. 386,86 N.E. 947
• Parties: ELECTRIC WELDING CO., Limited v. PRINCE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 386

86 N.E. 947

ELECTRIC WELDING CO., Limited v. PRINCE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1909

COUNSEL

Edward F. McClennen, for plaintiff.

C. A Hight, G. S. Selfridge, and P. E. Coyle, for defendants.

OPINION

KNOWLTON C.J.

These 17 cases, brought to enforce the same kind of a liability against different defendants, were tried together in the superior court and reported, by agreement of the parties, for our consideration. They have been before us previously, and the report of them may be found in 195 Mass. 242, 81 N.E 306. At the first trial verdicts for the defendants were ordered, and the cases were reported to this court on questions of law.

There were three counts in the declaration in each case. The verdict was treated as a separate verdict on each count, and the result of the hearing in this court was to leave the verdict to stand upon the first and third counts, and to set it aside on the second count in all the cases. The order in each rescript was 'Case to stand for trial on the second count.' This left the cases pending on the second county only. After the close of the evidence at the last trial an amendment to the declaration was allowed, which introduced a fourth count that rests upon the same general grounds as the second count, but seemingly was designed to meet the defendant's contention that there was a variance between the averments and the proof. The principal facts appear in the report of the former decision of this court.

Besides the evidence taken at the first trial, which consisted of an auditor's report, answers to interrogatories and decisions, there was additional evidence at the last trial, consisting of a deposition, testimony of some of the defendants, and particularly the oral testimony of a very eminent English barrister, Mr. Hamilton, who has written a text-book of authority known as 'Hamilton's Company Law' and has often argued important cases of company law before the highest courts of England. He was called by the defendants and testified at great length, discussing and expounding most if not all of the numerous English decisions bearing upon the questions of law at issue in these cases. All of these decisions were put in evidence, many of them by the plaintiff, so that the court had before it a large body of English law contained in many decisions of the courts, together, with the opinion of this expert in regard to these decisions and the act of Parliament in question. The statute is the 'Companies Act' (St. 25 & 26 Vict. c. 89), and the language on which the plaintiff sought particularly to hold the defendants is the last clause of section 23, as follows: 'And every other person who has agreed to become a member of the company under this act and whose name is entered on the registry of members, shall be deemed to be a member of the company.' The plaintiff's contention is that the defendants, by virtue of their several agreements with a promoter to underwrite certain amounts of the stock of the plaintiff corporation at its organization, and of the entry of their names as stockholders upon the registry of the corporation about 16 months later, without their knowledge, followed by notice of the registration and their omission to take any action in regard to it, became bound to pay to the corporation the par value of the stock allotted to them. At the close of the evidence the presiding judge ordered verdicts for the plaintiff against the defendants Prince and Pope, each of whom had made a payment after the registration, and also verdicts for all the other defendants, and reported the cases.

The first questions that arise under the report are whether these orders were right as a matter of law. The principal contention between the parties was in regard to the law of England by which their rights are governed. The law of a foreign country is not judicially recognized by our courts, but is a fact to be proved like any other fact in a case. Ufford v. Spaulding, 156 Mass. 65, 30 N.E. 360; Hazeltine v. Valentine, 113 Mass. 472, 478. Said Mr. Justice Endicott in Ames v. McCamber, 124 Mass. 85-91: 'When the law of another state is in dispute, it is to be determined as a question of fact by the court or jury trying the case. * * * If the evidence was conflicting as the plaintiff contends, we have no authority to revise the finding, although the judge has reported the evidence.' The proof of the law of a foreign country may be by the introduction in evidence of its statutes and judicial decisions, or by the testimony of experts learned in the law, or by both. If the law is found in a single statute or in a single decision, the construction of it, like that of any other writing, is a question of law for the court. As was said in Wylie v. Cotter, 170 Mass. 356, 49 N.E. 746, 64 Am. St. Rep. 305: 'The law of another state is a fact to be proved like any other fact, by evidence. Where the evidence is a single statute or a decision of a court, the language of which is not in dispute, the interpretation of it presents a question of law for the court, but where the law is to be determined by considering numerous decisions which may be more or less conflicting, or which bear upon the subject only collaterally, or by way of analogy, and...