Pittsburgh and Connellsville Railroad Co. v. Plummer

• Decision Date: 07 January 1861
• Citation: 37 Pa. 413
• Parties: Pittsburgh and Connellsville Railroad Company <I>versus</I> John C. Plummer.
• Court: Pennsylvania Supreme Court

37 Pa. 413

Pittsburgh and Connellsville Railroad Company versus John C. Plummer.

Supreme Court of Pennsylvania.

January 7, 1861.

ERROR to the Common Pleas of Westmoreland county.

The material facts of this case, and matters assigned here for error, are all fully set forth in the opinion of this court, which was delivered, January 7th 1861, by STRONG, J.

This was an action upon an alleged contract of subscription for the stock of the plaintiffs, and the pleas were non assumpsit and the statute of limitations. The paper-books furnished to us are so lean, contain so little of the record, and so small a part of the evidence, that it is difficult to understand the points upon which the court was asked to charge the jury. And the printed argument of the counsel is quite unintelligible; for it is based upon an alleged state of facts, the accuracy of which we have no means of determining. We are, therefore, not without apprehensions that we may mistake the true bearings of the questions presented to us.

So far as we are able to gather the case from the materials furnished, it is this: — In 1854, after the plaintiffs had been incorporated, Mr. Plummer, the defendant below, sent to them a book containing a formal subscription made by him for twenty shares of the stock of the company. The subscription contained the following condition: — "Provided the construction of said road is prosecuted." It was dated June 16th 1847, but it was never delivered to the company until 1854, when it was received from the defendant. As an agent of the plaintiffs, he had obtained other similar subscriptions, but he retained them with his own, and they were all handed over together. There is nothing upon the record, or in the evidence, to show why these subscriptions were not delivered over at the time when they were made, or shortly after. But there was in evidence a letter addressed and sent to the plaintiffs, dated November 8th 1853, and signed by the defendant, with others, in which they say: — "We submit you the names of the following stock, taken by us in the Pittsburgh and Connellsville Railroad Company, amounting to some five hundred and forty odd shares. We have deducted off every stockholder in the railroad company, the amount of stock taken by him in the Slack-Water and Plank-Road. The foregoing list does not include the original stock taken by the commissioners. We took the notes of stockholders for the five per cent., which said notes we will hand over when the road is put under contract from West Newton to Connellsville." Accompanying this letter were the names of the subscribers to the stock mentioned, including that of the defendant, with the number of shares taken by each. This was soon after followed by the delivery to the plaintiffs of the original subscriptions, as already stated. In March of the same year (1854), the railroad was put under contract from West Newton eastwardly towards Connellsville; and in the spring of 1855, twelve miles of it were completed, and the whole line to Connellsville was in operation at the time of the trial. Calls for the instalments of the subscription were duly made in February 1854, and notice of the calls was given.

Such are the facts, the evidence of which was laid before the jury. In view of them the court was requested to charge, that "if the jury believed from the evidence that the subscription by the defendant for twenty shares of the stock of the company was to be effected only on the proviso, that the construction of said road is prosecuted, and that the book which contained said subscription was held and retained by the defendant until the year 1854, when it was put into possession of the plaintiffs — that the subscription is to be construed as from the said year 1854." "That the letter of November 3d 1853, from the defendant and others to the plaintiffs, with the accompanying list of stockholders, recognised and assumed the validity, at that time, of his subscription for twenty shares of stock, and his liability thereon." And that "if the jury found the facts as stated in the foregoing points, the pleas (of non assumpsit and the statute of limitations) could not be sustained, and the verdict should be for the plaintiffs." To the first of these points the court responded in the negative, and in answer to the second said: "The evidence in the case shows that at the time when the...