Bend v. Susquehanna Bridge & Bank Co. , 6 H. & J. 128 ( 1823 )

The opinion of the court was delivered by.

Buciianav, J.

The action was brought to recover the, amount of three instalments, of live dollars each, on one hundred shares of stock in the Susquehanna Bridge and. Bank Company, alleged by the plaintiffs to belong to the defendant. Moses Poor subscribed ip his own name for the stock in question, and afterwards duly appointed Samuel Clendenen, his attorney, to transfer it to John JJ. Poor; in pursuance, of which power, Samuel Clendenen did, on the 3d of October, in, the year 1816, transfer the said Stock, on the bank, to John H, Poor, according to the provisions of the charter. Op the 3f)th of November 1816, John H. Poor regularly constituted, Samuel Clendenen his attorney, to transfer the said one hundred shares of stock to the defendant, with his knowledge and consent; and on the 10th of December 1816, Samuel Clendenen made an. assignment of the stock, on the books of the bank,, to the, defendant, in these words: “1 John II. Poor, by my attorney, Samuel Clendenen, do hereby transfer and make over, unto William, B. Bend, one hundred shares of stock held by me in the Susquehanna Bridge and Bank Companyt Maryland, on which thirty per cent, has been paid, subject to the payment of the remaining seventy per cent, agreeably to the charter of incorporation;” — which is signed and Sealed by Samuel Clendenen, and underwritten “Att’y. for Wm. B. Bead. ” The charter authorises the transfer of stock at the bank by any holder, either in person or by attorney; and the first question raised in the discussion of the cause, is, whether the power given by John II. Poor to, Samuel Clendenen, was so executed as to transfer the stock in question to the defendant? Of which we have no doubt. It is very certain, that in point of law the act done under a power of attorney, must be the act of the principal, and not of the attorney, otherwise it cannot have the effect to bind the. principal, and here the act done,' that is, the assienment and transfer of the stock, is emphatically the act of John H. Poor: It expressly purports, upon the face of it, to be a transfer of John H: Poor, by his attorney,” Samuel Clendenen, and being so expressed in the body of the instrument, it was sufficient for Clendenen to sign and seal it, without any addition Of the character in which he acted, that character being before distinctly set out; and as the assignment is clearly expressed, and manifestly appears to be .the act of the principal, John II. Poor, through the agency of tiis attorney, Samuel Clendenen, the superaddilion of fhe words, “Att’y. for if rn. B. Bend,” cannot have the effect tci defeat it; but being repugnant to the whole context, must be rejected, on the same principle, that where the habendum in a deed of bargain and sale is to the grantor, it shall be rejected, and the’use enure' to"the grantee; or it may be, that Samuel Clendenen was' as well, the agent in that transaction of William B.Bend, as attorney for John II. Poo?', and that he placed thé word si{<Att’y. for Vim. B. Bend,” under his signature, to. denote that agency. That he could not have been the attorney of Bend, for the purpose of making the transfer, is most manifest, he being the party receiving, and not'the party making the assignment; ánd it is not'easy to suppose that Clendek’en, in adding the Words “Att’y. for 'Wm.:B. Bend,” ' intended to deny his agency for Jolin II. Poor, which he had before so distinctly affirmed. "It was, therefore, either ¿n ¿Ct'of mere inadvertency, or it was done to show the double ‘'capacity in which he may "have acted; and in neither cáse does it vitiate the assignment, but is wholly inoperative.' It'is enough • that the transfer Was made in the name of John H.' Poor, and that insufficiently appears..'to be his act;' through the-agency of his attorhey, for which no particular form of words is'required tó be used. ‘ '

As to the question, whether there is such a privity between the plaintiffs*‘and the' defendant, as to enable the plaintiffs to sustain ‘an áction of'assumpsit against the defendant' for the''amount Of the instalments, which form the subject of the Suit, there can be' no doubt. The transfer of stock by the holders; is authorised by the charter; and by'the assignment, the assignees are1 substituted in the places of the’ original subscribers, and hold the shares on the same conditions, and are subject to the same rules find orders. The calls for the instalments in question were wade by the plaintiffs in pursuance of the provisions of the charter, and after the transfer by John 11. Poor to the defendant; and the charter authorising transfers of stock, and declaring all “who way become the actual proprietors of shares in the capital stock, either as subscribers for the same, or as the legal representatives, successors, or assignees of such subscribers,” to be a body politic and corporate, necessarily creates a privity, and raises an assumpsit on the pari of such as choose to become stockholders, by accepting transfers to pay all such calls as may bo regularly made, on which an action will properly lie. Moreover, by the very terms of the assignment, the defendant took the stock, subject io the payment of the whole amount that was theta unpaid; and it is so objection to say, that such a construction of the charter would be injurious to the bank, on the ground that it would thereby lose its remedy against the original stockholders, seeing that the charter has provided an abundant security against loss, by creating adequate forfeitures for nonpayment of the instalments called for, and prohibiting any transfers by stockholders indebted to the bank, until suchdebtsshallbe paid. In support of the position, that the defendant is answerable in an action of assumpsit for the amount of the calls wade, since he received a transfer of the stock, if indeed such a position needs any support, see the case of The Huddersfield Canal Company vs. Buckley, 7 Term Rep. 36, which is directly in point. '

At the trial of the case below, the defendant offered evidence to prove, that the assignment of the stock in question was not intended as as absolute transfer, but as a mortgage to secure a débt due. to Kim from John II. Poor, which was rejected by the court; and it is urged here in argument, that the testimony ought to have been admitted; which presents the constantly returning question, whether parol evidence is admissible to contradict a w ritten instrument? Assuming different shapes, and varying with the various transactions between man and man, and each claiming to be an exception from the general rule, “that parol evidence cannot be admitted to contradict, add to, or vary the terms of a will, deed, or other written instrument.” .It is not necessary to inquire» how far the liability of the defendant to an action of- assumpsit for the, amount of the instalments claimed in this suit, would be affected by the fact, if true, th^t he holds the stock only as a mortgagor, if the, evidence offered to-establish that fact was properly rejected; and we think that it was clearly inadmissible, being offered by. an immediate, party to a sealed instrument, to contradict-and change the 'terms of it, for the purpose of defeating rights claimed, and growing out of that very instrument alone, with nothing to take it out of the operation of the general rule -of evidence, but in direct violation pf it.

JUDGMENT. ¿EÍTRMED.