Witmer v. Schlatter
| Decision Date | 25 January 1830 |
| Parties | WITMER and others, v. SCHLATTER, and one hundred and sixty-seven others. |
| Court | Pennsylvania Supreme Court |
A plea in abatement, alleging that there are others liable with the defendant, does not admit the existence of any contract whatever, the new parties being conditionally named, to enable the defendant to connect them with whatever contract may be proved. It operates no further than to preclude an objection, for want of parties a second time; but the plaintiff is nevertheless bound to prove his case against all who are named, as if there never had been a proceeding to ascertain them.
Against those who pleaded, the record is evidence that all who are alleged to be partners, are so in fact; but all others must be proved to be partners in the ordinary way.
If an individual enter into a contract with a company, doing business under articles of association, one of which provides for an application to the legislature for a charter, which is afterwards granted, the style and general organization of the association continuing the same, the responsibility of the company as partners is not changed by the act of incorporation, unless the express consent of the party who contracted with it be given, notwithstanding the act of incorporation declares that all contracts made by the association shall be as obligatory on the same, and on the other parties thereto, as if they had been made subsequently to the act of incorporation; and that it shall be lawful for the corporation and the parties to maintain actions to enforce the performance thereof, as fully and effectually as if the same had been made by, or with the corporation.
THIS cause having been tried at Nisi Prius, a verdict was rendered on the 13th of February, 1829, in favour of the plaintiffs, for ten thousand three hundred and twenty-four dollars and forty-two cents, subject to the opinion of the court upon the whole evidence.
The facts, so far as they are material to the elucidation of the points decided, were these: On the 16th of August, 1817, William Schlatter, Condy Raguet, Benjamin Warner John M. Price and Simon Gratz, who styled themselves the contracting committee of the Philadelphia and Pittsburg Transporting Company, authorised their agent, Thomas Harper, to contract with the plaintiffs, David Witmer, David Witmer Jun. John Witmer and Jacob Witmer, for the transportation of goods from Downingstown to Harrisburgh. On the 12th of December, 1817 two contracts in writing, between the plaintiffs and Thomas Harper, agent for the managers of the Philadelphia and Pittsburg Transporting Company, were executed, by each of which the plaintiffs bound themselves in the penalty of thirty-five thousand dollars, to provide horses, harness and drivers, and attend to the transportation of goods between Downingstown and Harrisburgh, making themselves responsible for all damages occasioned by the unfaithfulness, neglect, or want of skill of the persons they might employ. For this they were to receive one hundred and eighty dollars per mile in quarterly payments, on each contract, for a line of wagons going and coming every thirty-eight hours. The contracts were to take effect on the 1st of April, 1818, and continue until the 1st of April, 1819.
The plaintiffs, after having given in evidence the contracts on which the suit was brought, and testimony to prove performance on their part, gave in evidence the articles of association of the Philadelphia and Pittsburg Transporting Company, and the book of minutes of the managers, which were produced by the defendants on notice. The articles of association were entered into on the 20th March, 1817. The eighth article was in these words:
The plaintiffs also offered in evidence the record of a former suit, brought upon the same contracts, by the same plaintiffs, against William Schlatter, Condy Raguet, Benjamin Warner, John M. Price, and Simon Gratz, and the plea in abatement therein filed, averring, that the promises and undertakings in the declaration mentioned, (if any such were made,) were made jointly with others, whose names were given. The defendants objected to the admission of the record, but the court permitted it to be given in evidence, and, at the request of the defendants' counsel, noted the objection.
The defendants gave in evidence letters from the plaintiffs, relating to the contracts, and receipts given by them at different times, viz. on the 1st of July and 15th of October, 1818, and the 5th of January, and 8th of May, 1819, for monies paid to them on account of their contracts with the defendants.
Kittera and T. Sergeant, for the plaintiffs.
1. The admission of the record in evidence was immaterial, as the partnership was fully proved without it; but it ought to have been received. The plea was the declaration and admission of the parties, and evidence against themselves. 4 Stark. 1072, 1074. 2 W. Bl. 947. 1 Vin. 89. Witmer v. Schlatter, 15 Serg. & Rawle. 150.
2. The plaintiffs did not know who composed the company. They contracted with those who stipulated to be responsible; those who were personally engaged. The contract once made, must retain its original character, unless the contrary be expressly agreed. It is not to assume one form or another, as contingencies arise, unless it be inserted in the contract, that it shall be subject to such alterations. The original contract was with the company as individuals, and the act of assembly could not shift the responsibility from the partnership to the corporation, without the assent of the plaintiffs. That assent was never given, so far as appears from the evidence, for it certainly cannot be inferred from the letters and receipts of the plaintiffs. All their acts were in pursuance of the original contract, and with those who were the proper organs of the company, both under the articles of association, and the act of incorporation.
Binney and Chauncey, for the defendants.
1. The plea was not admissible for any purpose. The parties given by it, are different from the parties to this suit. Only five of the present defendants were parties to the abated suit. The names in the declaration are different from those in the books, so that the case was not made out by the books alone. They were the books of a corporation, and not of a partnership. 1 Phill. Ev. 222, (242.) Sweeting v. Turner, 10 Johns. Rep. 216. 1 Chitty Pl. 41.
2. The defendants are not liable in any event, the plaintiffs having adopted the corporation in discharge of the association. The original contract was merged, with the assent of the plaintiffs, in the responsibility of the corporation. It was entered into, in the first instance, upon the basis of corporate responsibility, for it is irrational to suppose the plaintiffs did not know every thing relating to the association with whom they were contracting, at least, so far as related to themselves. They were consequently aware, that the eighth article provided for an application to the legislature for a charter. This provision formed part of the contract, and that the plaintiffs considered their agreement as transferred from the association to the incorported company, is fully proved by their subsequently corresponding with it, and giving receipts to it as such. They were at least bound to elect between a partnership and a corporate responsibility, and if they intended to hold the defendants as partners, they should have declared that intention.
The nature of this particular plea in abatement, is misapprehended in supposing, that to show the parties, the defendant must necessarily show the contract; and that in a second action, the record is evidence, at least, against all who pleaded, not only of partnership, but of the whole case. The extent of the defendants' allegation is best determined by the nature of the mischief which the plea was devised to remedy. Previous to Rice v. Shute, 5 Burr. 2611, the omission of a...
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Beaver's Administrator v. McGrath et al.
...corporate would be without any check or control did we lose sight of the individuals; and there was no individual existence." In Witmer v. Schlatter, 2 Rawle 359, twelve years afterwards, Chief Justice Gibson said (p. 363), "It is indeed supposed that he who deals with a company is bound to......