Scarlett v. Academy of Music of Baltimore City

• Decision Date: 24 June 1875
• Citation: 43 Md. 203
• Parties: WILLIAM G. SCARLETT v. THE ACADEMY OF MUSIC OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

43 Md. 203

WILLIAM G. SCARLETT v. THE ACADEMY OF MUSIC OF BALTIMORE CITY.

Court of Appeals of Maryland

June 24, 1875

APPEAL from the Baltimore City Court.

This suit was instituted by the appellee, in the Baltimore City Court, against the appellant to recover the last three instalments of the subscription of the latter, for ten shares of the capital stock of the former, suit for the first instalment thereof having been previously instituted in the Superior Court of Baltimore City and judgment recovered which has been entered, subject to this appeal. The suit was brought on a contract, by which the appellant agreed to pay five hundred dollars for ten shares of the capital stock of the appellee, or at the rate of fifty dollars per share, in such instalments, and at such times as might be fixed by the Board of directors. The subscription, however, was not to be binding, until stock amounting in the aggregate at par to $200,000 should be subscribed.

First, Second and Third Exceptions, are stated in the opinion of the Court.

Fourth Exception: After all the evidence had been given, the defendant prayed the Court to instruct the jury as follows:

1. That there is no sufficient evidence offered by the plaintiff that the defendant subscribed for ten shares of stock in this corporation, and that the assessments were duly made by the Board of directors, and notice thereof given to the defendant before the institution of this suit, and therefore the plaintiff cannot recover.

2. That the plaintiff having offered in evidence by its witness, the treasurer and secretary of the plaintiff, that stock to the amount of $260,000, and not more, was subscribed for up to the present time, therefore the corporation had no authority in law to call in from the subscribers assessments or payment on account of stock subscriptions.

3. That there is no proof in this case, that the plaintiff ever tendered itself ready and willing to transfer the stock in question to the defendant, prior to the bringing of this suit, and that such offer on the part of the plaintiff was necessary in order to entitle the plaintiff to sue for the subscription money under the pleadings in this case.

4. That the plaintiff having offered in evidence an amendment of its charter, altering in a material manner the rights and responsibilities of stockholders, such alteration, without the knowledge or consent of the defendant, relieves him from any obligation to pay the claim in this case.

5. That there is no evidence in this cause of the notice for payment required by section 65 of the General Incorporation Law of 1868, ch. 471, having been complied with, and the plaintiff cannot recover in this suit.

6. That there is no sufficient evidence in this cause that stock was subscribed before the bringing of this suit, to the amount of $200,000, as mentioned in the contract offered in evidence; the Act of 1868, in sec. 67, making it obligatory upon the corporation to keep a book containing the names of the stockholders.

7. That the declaration in this case is insufficient to entitle the plaintiff to recover a verdict, in view of the evidence which has been offered, because there is no averment in the narr. that the amount mentioned in the contract was subscribed for at the time of the calling in the instalments on the stock subscription in question sued for in this case.

8. That even if the jury shall find all the facts set forth in the instruction given to the jury by the Court, yet the plaintiff cannot recover in this case under the pleadings.

9. That there is no evidence that the plaintiff gave any notice to the defendant calling upon him to pay the instalments ordered in this case, or demanded for the same at any time, and for this reason, the plaintiff cannot recover in this case under the pleadings.

The Court, (BROWN, J.,) refused all the defendant's prayers and instructed the jury as follows:

If the jury believe that the defendant subscribed for ten shares of the capital stock of the plaintiff, under the contract of subscription offered in evidence, and that two hundred thousand dollars of said stock was subscribed for and paid to the plaintiff before the instalments sued for in the declaration in this cause were called in; and if the jury shall futher find, that said instalments were called in, in the manner and at the times given in evidence by the plaintiff, then the plaintiff is entitled to recover the amount of said instalments with interest thereon from the dates respectively when they became due and payable.

The defendant excepted. The jury rendered their verdict for the plaintiff, and judgment was entered accordingly. The defendant appealed.

The cause was argued before STEWART, BOWIE, GRASON, ALVEY and ROBINSON, J.

B. C. Barroll, for the appellant.

H. C. Kennard, for the appellee.

ALVEY J., delivered the opinion of the Court.

1. The first exception taken by the defendant in this case, was to leave given the plaintiff to amend its declaration in open Court, during the progress of the trial, and after the close of the evidence, by inserting certain words in the declaration, to which the defendant had pleaded. The amendment was made, and the trial proceeded.

As to the power of the Court to allow the amendment to be made at that stage of the trial, we suppose there can be no question. The Code, Art. 75, secs. 23 and 24, gives the amplest power to allow any amendments to be made at any time before the jury retire to make up their verdict, in cases of jury trial and in cases of demurrer and other trials before the Court, at any time before judgment is entered; and it is declared that no continuance shall be granted, upon amendments made, but that the case shall proceed as if there had been no amendment, unless the Court be satisfied...