Wilson, McElroy & Co. v. Stockholders of Pittsburgh & Youghiogheny Coal Co.

• Decision Date: 13 November 1862
• Citation: 43 Pa. 424
• Parties: Wilson, McElroy & Co. v. The Stockholders of the Pittsburgh and Youghiogheny Coal Company.
• Court: Pennsylvania Supreme Court

43 Pa. 424

Wilson, McElroy & Co. v. The Stockholders of the Pittsburgh and Youghiogheny Coal Company.

Supreme Court of Pennsylvania.

November 13, 1862

1862

ERROR to the District Court of Allegheny county.

This was a scire facias by Jackson O. Wilson, Samuel B McElroy, and James Finlay, partners doing business as Wilson McElroy & Co., on a judgment recovered by them against The Pittsburgh and Youghiogheny Coal Company, requiring James Meagee, Edward Smith, H. H. Houston, A. M. Hill, George C Franciscus, Thomas A. Scott, and Oliver W. Barnes stockholders in said corporation, to show cause why they should not be added as parties defendant to the judgment, and the plaintiff have execution against them.

The case was this:--On the 16th day of December 1861, the plaintiffs brought suit in the court below against the Pittsburgh and Youghiogheny Coal Company, a corporation created by Act of Assembly of 11th April 1856, for the purpose of mining, leasing, selling, and transporting coal upon a note for $629.95; a copy of which, with an affidavit of plaintiffs' cause of action, was filed in the cause. The note was in the following words:--

" $629.95. Office of the Pittsburgh and Youghiogheny

Coal Company.

Pittsburgh, June 1st 1861.

Six months after date, the Pittsburgh and Youghiogheny Coal Company promises to pay to the order of W. Little, six hundred and twenty-nine dollars and ninety-five cents, without defalcation, for value received.

No. 3. Endorsed, JAMES ANDREWS,

W. LITTLE. President."

The summons was served on William H. Barnes, then president of the company. The company made no defence to the action, and, on the 7th day of January 1862, judgment was entered for the plaintiffs for $633.62, in default of an affidavit of defence.

On the 19th March 1862, after fieri facias and return of nulla bona, this scire facias issued against the stockholders of the corporation, in accordance with the provisions of the company's charter. Subsequently, Andrew Carnegie, George W. Cass, William A. Stokes, John E. Thompson, Thomas S. Clark, and William Thaw, were added as stockholders and defendants.

The writ of scire facias was served on George W. Cass, Thomas S. Clark, William Thaw, and Andrew Carnegie; nihil as to the others.

To this suit W. H. Barnes filed an affidavit of defence, in which he averred that defendants are not liable under the charter of the Pittsburgh and Youghiogheny Coal Company, as stockholders thereof, to pay the sum of $633.62, with interest and costs, recovered in No. 148 of January Term 1862, of the said District Court, and do not owe said amount to said plaintiffs; that said debt was not contracted within a year last past by said company, and that more than one year has elapsed prior to the commencement of suit against said stockholders, since said liability was incurred or the said debt became due and payable.

After plaintiffs' counsel had moved for judgment for want of a sufficient affidavit, Mr. Barnes filed a supplemental affidavit, in which he deposed that " William Little was employed by the Pittsburgh and Youghiogheny Coal Company, under the title of president, to manage the property and business of said coal company. It was part of his duties to superintend the working of certain coal-mines, & c., the property of said company; to keep the books and accounts of the company; to receive and pay out all moneys of the said company.

Whilst said Little was employed by and for said coal company, he also engaged in the business of a ‘ country store,’ at or near the mines of said coal company. Little did the business of this store in the name and style of Bigley & Co., he being a partner in said firm of Bigley & Co.

The Pittsburgh and Youghiogheny Coal Company had no part or interest in said store, business, or firm of Bigley & Co.; Little being engaged therein for his own special personal profit, and not in any way for the Pittsburgh and Youghiogheny Coal Company.

Bigley & Co. bought goods for the store aforesaid of the plaintiffs, Wilson, McElroy & Co., and for their own account, and not for the account of the said coal company.

Said goods were bought at various times...