Mathieson Alkali Works v. Mathieson

• Decision Date: 19 November 1906
• Docket Number: 594.
• Parties: MATHIESON ALKALI WORKS v. MATHIESON.
• Court: U.S. Court of Appeals — Fourth Circuit

150 F. 241

MATHIESON ALKALI WORKS v. MATHIESON.

No. 594.

United States Court of Appeals, Fourth Circuit.

November 19, 1906

[Copyrighted Material Omitted]

George E. Penn (James L. White and F. W. Christian, on briefs), for plaintiff in error.

William W. MacFarland and Daniel Trigg, for defendant in error.

Before PRITCHARD, Circuit Judge, and MORRIS and BOYD, District Judges.

MORRIS District Judge.

This was an action at law, instituted August 3, 1903, by T. T Mathieson, stated in his declaration to be 'an alien and subject to the kingdom of Great Britain, plaintiff,' against, as stated in the declaration, 'The Mathieson Alkali Works, a corporation under the laws of the state of Virginia, and a citizen of Virginia, and a resident of the Western district of Virginia, in which its principal office is situate, defendant. ' The action was to recover a balance of salary alleged to be due to T. T. Mathieson, the plaintiff below, by the corporation, the Mathieson Alkali Works, under a contract in writing, dated August 15, 1893 and sealed with the corporate seal of the corporation, by which the corporation employed the said plaintiff as general superintendent for the term of eight years. The case was submitted to a jury, and, the verdict being in favor of the plaintiff, the defendant corporation, the Mathieson Alkali Works, by writ of error has brought the case here to test the correctness of the rulings of the trial judge upon questions of pleadings, of admissibility of testimony, and of instructions to the jury, which were excepted to during the trial.

The plaintiff in error now in this court for the first time raises the question of the sufficiency of the averments of the declaration to sustain the jurisdiction of the trial court, and it is urged that the averment that the Mathieson Alkali Works, 'a corporation under the laws of the state of Virginia, and a citizen of Virginia, and a resident of the Western district of Virginia, in which its principal office is situate,' is not equivalent to the phrase, 'created by, or organized under, or existing under the laws of Virginia,' and is insufficient. We think that the phrase, 'a corporation under the laws of the state of Virginia,' is equivalent in legal intendment to the phrase, 'existing under the laws of Virginia. ' Grand Trunk Ry. Co. v. Tennant, 66 F. 922, 14 C.C.A. 190. Furthermore, we think that, if a more specific jurisdictional averment was needed, it is supplied in another part of the declaration, in which the contract sued upon is inserted verbatim as a part of the declaration. It is therein recited that the party of the first part is 'the Mathieson Alkali Works, a corporation existing under the laws of the state of Virginia, with headquarters located at Saltville, in said state. ' Chapman v. Barney, 129 U.S. 677, 9 Sup.Ct. 426, 32 L.Ed. 800, and Thomas v. Board of Trustees, 195 U.S. 207, 25 Sup.Ct. 24, 49 L.Ed. 160, relied on by the plaintiff in error, were cases in which there was no averment that the party was in fact a corporation at all.

It is assigned as error that after the jury had been sworn the plaintiff was allowed to amend his declaration by adding a count declaring on the contract as a sealed instrument, whereby the defendant was deprived of the benefit of his plea of the statute of limitations of five years. In the plaintiff's declaration the contract is set out verbatim, and although it plainly recites: 'In witness whereof the said Mathieson Alkali Works has caused this agreement to be signed by its president and attested by its secretary, and its corporate seal attached hereto, and the said T. T. Mathieson has signed the same'-- in copying this contract into the declaration nothing to represent a seal was indicated. When the contract was produced in evidence, and it was apparent that the corporate seal had been affixed, and that it was a sealed instrument, as recited in the contract itself, leave was granted the plaintiff to amend the declaration to make it conform to the fact. Such an amendment, if the court considers that substantial justice will be promoted by it, is authorized by section 3384 of the Virginia Code of 1887 (Va. Code 1904, p. 1792), and it is common practice. Mack v. Porter, 72 F. 236-243, 18 C.C.A. 527; Chapman v. Barney, 129 U.S. 677-681, 9 Sup.Ct. 426, 32 L.Ed. 800. It is authorized by section 954 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 696). There can be no question that the amendment was within the discretion of the trial judge and was properly allowed.

The contract being under seal, the statute of limitations applicable under the laws of Virginia was ten years, and the court was right in rejecting the plea of five years. The contract was as follows:

'These articles of agreement made and entered into by and between the Mathieson Alkali Works, a corporation existing under the laws of the state of Virginia, with headquarters located at Saltville, in this state, party of the first part, and T. T. Mathieson, party of the second part, witnesseth as follows:

'(1) The said Mathieson Alkali Works have employed the said Mathieson as general superintendent for the term of eight years upon the terms and conditions hereinafter stated. That is to say, the said T. T. Mathieson is to give his time and attention for either two or three years, as he may elect, to the erection and general management of the works of the said company, and also to their operation after the same shall have been erected. It being understood and agreed during this term of either two or three years as the case may be, the said Mathieson is to remain and be present at such places in the United States as the business of the company may require, principally at Saltville, except that he is to have such vacation during this period as can be availed of without detriment or hindrance to the proper management of the business of the said company, and for this period of two or three years, as the case may be, he is to be paid at the rate of 3,000 pounds sterling per annum, payments therefor being made in monthly installments.

'(2) For the remainder of the unexpired term of eight years the said Mathieson is to be paid 1,500 pounds sterling per annum and during this unexpired portion of the period of eight years, it is understood that the said Mathieson shall not be required to spend any more time in America than he may elect to spend. The object and purpose, however, being that he shall give such attention to the business as may be necessary in order to promote its best interests.

'(3) The said Mathieson Alkali Works agree to pay the said Mathieson during the full period of eight years a commission at the rate of 5% per annum upon all net profits realized by the Mathieson Alkali Works over and above 60,000 pounds sterling per annum.

'(4) The above compensation is to give the said Mathieson Alkali Works the ownership for the United States an exclusive right to use any patents or any interest in any patents which the said Mathieson may now own or which he may hereafter perfect or acquire during the period of this contract.

'The Mathieson Alkali Works further agree that they will provide a suitable residence for the said T. T. Mathieson at the works at Saltville, Virginia, during

said period of eight years or such portion as the said T. T. Mathieson shall elect to reside at Saltville, Virginia.

'The Mathieson Alkali Works further agree that the said T. T. Mathieson has the option to purchase $100,000 worth of the company's stock at par, with interest at the rate of 5 per cent. per annum added, from the average date of payment of the subscribers to the stock of said Mathieson Alkali Works, at any time he may elect to do so during the period of the first three years of his employment, and the company agrees to reserve the said shares for the said T. T. Mathieson during the said period.

'The said Mathieson agrees that he will not enter into any similar business in the United States of America during the continuance of this agreement.

'The salary of the said T. T. Mathieson is hereby declared to begin from the 1st day of February, 1893.

'In witness whereof the said Mathieson Alkali Works has caused this agreement to be signed by its president and attested by its secretary and its corporate seal attached hereto, and the said T. T. Mathieson has signed the same.

'Executed in duplicate on this 15th day of August, 1893.

'(Signed)

Mathieson Alkali Works, 'By Edward E. Arnold, President.

'(Signed)

T. T. Mathieson.

'(Corporate Seal Mathieson Alkali Works, 1892.)

'Signed in presence of

'J. F. Van Name. 'J. H. Ingram.

'(Signed)

M. P. Robertson, Sec'ty. (Seal.)'

The plaintiff's claim as submitted to the jury was for the unpaid . . . 1,500 sterling per year from September 1, 1896, to February 1, 1901, a period of four years and six months, amounting to about $33,750, with interest. The plaintiff claimed that he had fully performed and carried out all the acts and things to be done by him according to the terms of the contract and that the defendant had failed to pay him in breach of the contract.

The defendant by its special pleas set forth that the contract of employment of the plaintiff was made in contemplation of the erection and management by the plaintiff of extensive works for the manufacture of soda ash, caustic soda, and other products at Saltville, Va., requiring peculiar skill and knowledge which the plaintiff had represented that he possessed, but that the plaintiff did not have nor exercise the knowledge, skill, and care required for the performance of the duties contemplated by the contract, but was careless negligent, and unskillful, and constructed for the defendant works of an antiquated...