Sothoron v. Weems , 3 G. & J. 435 ( 1831 )

Dorsey, J.,

delivered the opinion of the court.

The County Court were right in refusing the defendant’s prayer, in his first bill of exceptions, it being a general prayer, the granting of which, since the act of 1825, would be error. To this refusal no exception was taken. But the court, however, did not stop here; they instructed the jury, “that the contract or subscription list, bore on its face evidence that Gustavus and George Weems, the plaintiffs, were the proprietors and owners of the steam boat Surprize, at the time when the said list or contract was signed, and that the said list proved the averment of ownership in the declaration, and that the plaintiffs were entitled to recover; to no part of which instruction can we subscribe our assent. Instead of this subscription list per se, importing that at its date the plaintiffs were the owners of the steam boat Surprize, as far as any inference on that subject can be drawn, from its entire context we should infer, that the Surprize was owned by some other person, and that the object of the subscription was to raise the sum of $28,000, with which the appellees were to purchase and equip the steam boat, for the purposes set forth in the contract. Tf the boat were already the property of the appellees, what motive could promnt the subscribers to require the appcllees to bind themselves “to appropriate the money subscribed in no other manner but for the payment and use of said boat.” The appellees being the owners, it was perfectly immaterial to the subscribers, what appropriation might be made of so much of the fund raised by subscription, as covered the price of the boat; and it were absurd in the appellees, the owners of the boat, who received the money in payment for her, to stipulate that they would appropriate the money in no other manner but for the payment of the boat; besides, if George Weems fy Co. had been the owners of the Surprize, can a reason be assigned, why the price to have been paid for her was not inserted in the contract? Was it a matter to have been left to the uncontrolled discretion of the sellers, in which the subscribers, the purchasers, had no interest, and of which they desired no information ? The nature of the transaction repudiates such ideas. But conceding that the County Court were correct in inferring from the subscription list, that George Weems Sf Co. were the proprietors of the, steam boat, we cannot assent to that part of their instruction, which declares that they are entitled to recover. The signing of the contract was an imperfect act, of no legal obligation until the 280 shares should be taken. Until then, George Weems Sf Co. had they subscribed the agreement, as from its tenor, it was manifestly designed they should do, could not have been compelled to perform any of the stipulations on their part assumed : nor could they have exacted performance of any of the subscribers, because the implied condition (the subscription of the 280 shares,) on which their liability was to become absolute, had not occurred.

To test the accuracy of the County Court’s opinion, in the second' bill of exceptions, let it be admitted, that their instruction, as given in the first bill of exceptions, stands free from all objection, and that according to the proof then offered, the plaintiffs below were entitled 'to recover; does not the copy of the conveyance offered in evidence in the second' exception, divest them of the basis of their action ? Upon the assumption of the court’s correctness in the preceding exception, what is the consideration on which depends, the right to coerce the subscribers to a performance of their engagements? It is, that on payment of their money, they thereby acquire as an equivalent, an interest or property in the steam boat Surprize. If then it be shewn, that the payment of the subscription will not invest the subscribers, with the stipulated property in the steam boat, the consideration for their promise has failed, and payment cannot be enforced in a court of justice. The testimony offered, we think, fully establishes such failure of consideration; and the County Court therefore erred in its rejection.

The withholding from the juiy the evidence set forth in the third hill of exceptions, gives to the appellant no ground for complaint; it was offered for a particular purpose, and if inadmissible therefor, it was properly rejected, although it might be admissible for other purposes. The object of the testimony was stated to be, “for the purpose of proving that he (George Weems) had been finally discharged under the insolvent laws of the State.” This fact being immaterial to the issue in the cause, the proof for its establishment could not be otherwise, than incompetent. Had it been offered not only for the purpose stated, but to prove, that all the property, rights and credits of George Weems, had passed out of him, and vested in his trustee, it might perhaps have presented a different question for consideration.

The decision of the County Court in the fourth bill of exceptions, meets our approbation. The admissibility of the testimony adduced, being objected to, whether it be inadmissible or not, for the reason assigned, is wholly immaterial. If it be inadmissible on any ground, it should be rejected ; and when the subject comes in review before this court, under the act of 1825, we regard, as the point decided by the court below, the competency or incompetency of the evidence, not the sufficiency or insufficiency of the reason urged for its rejection. Upon the issue joined on the pleadings in the cause, the testimony in this exception was clearly incompetent.

We concur with the County Court,, in their decisions in the third and fourth bills of exceptions, but dissent from their opinions in the first and second, and therefore reverse the judgment.

JUDGMENT REVERSED.