Youghiogheny Shaft Co. v. Evans , 1872 Pa. LEXIS 242 ( 1872 )

The opinion of the court was delivered, by

Agnbw, J.

There is a fundamental error running throughout this case, which must put an end to the action in this form. The plaintiff declared against the corporation and Trunick and Fullerton as joint debtors. There is no evidence of a joint contract by these defendants, or of such a joint relation between the corporation and the individual defendants, as will support an implied contract jointly, to pay for the work and labor declared upon. There is not the slightest testimony that Fullerton made any assumption personally, and the only evidence as to Trunick is that while acting as president of the company he told Evans he would see him paid. Such an agreement, even if intended as an individual assumption, would not be joint, but several — a promise of suretyship, and not that of a principal. Several of the points of the defendants presented this error of misjoinder, but were refused by the court. It is now argued that the purpose of the action was to enforce the liability of the individual defendants as stockholders of the'corporation, under its charter, or laws relating thereto. But no such purpose appears in this record. The declaration is in general assumpsit against all the defendants jointly. Neither the charter of the company nor the law under which it was organized was given in evidence. The evidence as to the individual defendants is that one was president and the other secretary of the corporation. No point was made upon their liability as stockholders. From the whole case we derive no intent to charge them as stockholders. The liability of stockholders is secondary, and the proceeding to enforce it statutory, not at common law. It was, therefore, held in several decisions that, in such case, the proceeding is wholly governed by the statute, and the rights and liabilities of the parties must be ascertained by it: Brinham v. Wellersburg Coal Co., 11 Wright 43; Hoard v. Wilcox, Id. 51. Á reference to these eases will show that the form of this action is wholly misconceived, if it were intended to enforce a statutory liability of the stockholders in this way.

Judgment reversed.

The court afterwards granted a venire facias de novo.