Pittsburgh and Connellsville Railroad Company v. Stewart

• Decision Date: 28 November 1861
• Citation: 41 Pa. 54
• Parties: Pittsburgh and Connellsville Railroad Company <I>versus</I> Stewart.
• Court: Pennsylvania Supreme Court

41 Pa. 54

Pittsburgh and Connellsville Railroad Company versus Stewart.

Supreme Court of Pennsylvania.

November 28, 1861.

ERROR to the Common Pleas of Fayette county.

COPYRIGHT MATERIAL OMITTED

Sewell & Fuller, for plaintiffs in error.

Ewing, Patterson & Howell, for defendant in error.

The opinion of the court was delivered, November 28th 1861, by STRONG, J.

On the 8th of June 1847, the defendant subscribed for one hundred and fifty shares of the capital stock of the Pittsburgh and Connellsville Railroad Company. In November and December of the same year, by certain acts and resolutions of the company, which it is not necessary now to enumerate or describe, he, in common with other subscribers for stock, was released from the obligation of his subscription. That the effect of the action of the company was such a release, was ruled in McCully v. the plaintiffs in this case, 8 Casey 25, and it has not been controverted here. But the plaintiffs on this trial submitted evidence, from which they contended the jury might infer a renewed subscription by the defendant, or a resumption of the obligation of June 8th 1847, from which he had been discharged. They showed that in November 1848, he voted by proxy at an annual election for directors; that he was himself elected a director; that he acted as such, and as a stockholder, down to December 1856, and that on the first day of November 1853, before any call for instalments on stock were made, he paid $375. These acts were doubtless cogent evidence of a subscription of some kind, and in the absence of proof of a special contract, they would have warranted the jury in inferring that the defendant had, after his release in November or December 1847, assumed afresh the obligation to take one hundred and fifty shares, and of course to pay for them in cash, according to the calls. Such acts could have been accounted for on no other supposition than that there was an existing engagement of that nature. But they are shorn of their importance by the fact that there was a special contract, accounting for them all; an express contract of conditional subscription to which they are referable. The defendant proved that after his release from his subscription of July 8th 1847, and before any of those acts from which an unconditional obligation is sought to be inferred, it was agreed between him and General Larimer, the president of the company, that if he would continue his subscription the company would receive payment for it in cross-ties, when the railroad should be made through his land, and that upon these conditions he assented to holding the stock. If there was such a contract between the parties, it fully accounts for the defendant's subsequent action as a stockholder and director of the company, and leaves no room for an implication of a different contract. The law will not permit a contract to be implied when there is one expressed. "Expressum facit cessare tacitum" is an acknowledged maxim, both of the law and common sense. It was said by Lord Kenyon, in Cutter v. Powell, 6 Term Rep. 324, "Where there is an express contract between the parties, none can be implied." It matters not to this case whether the evidence relied upon by the plaintiffs be regarded as a foundation for the...