Stephenson v. Dodson , 1908 Pa. Super. LEXIS 169 ( 1908 )

Opinion by

Orlady, J.,

The plaintiff brought an action in assumpsit to recover from the defendants, jointly and severally, “by reason of their signing, executing, issuing and selling to him a bond, in the sum of $500.00 of the Dobson Lead & Zinc Company; the said defendants assuming to act as officers and agents of said company without lawful authority from it, and in violation of the laws of Pennsylvania, it not being registered in this commonwealth, as required by the Act of Assembly, April 22, 1874, P. L. 108, relating to foreign corporations.”

It was agreed by counsel that a trial by jury be dispensed with, and the case was submitted to the court, under the act of 1874. After a full hearing, a judgment was entered in favor of the defendants to which the plaintiff excepted and this appeal was then taken. The trial of the case took a wide range in the court below, as did its argument in this court, and after a careful examination of all the testimony, we fully concur in the findings of fact as determined by the court below, and the conclusions of law based thereon.

The plaintiff is a holder for value, of a bond purporting to be an obligation of the Dobson Lead & Zinc Company, dated March 1, 1894, signed by Truman M. Dobson, as president, and attested by Joshia Bachman, secretary (the two defendants), and payable at the company’s office at Bethlehem, Pennsylvania, on March 1, 1914. The payment of this, and of the other bonds of the series, was secured by a trust mortgage of the corporation, executed the same day, upon all its real estate, appurtenances and plant equipment in the state of Missouri. The conception and consummation of the business of this defendant company was quite out of the ordinary. The company was created and organized in the state of West Virginia on September 1, 1891: “For the purpose of mining, preparing for market and selling lead, zinc and other minerals in Wright County, Missouri, and elsewhere, and manufacturing and selling the products thereof, and of purchasing lands, and erecting buildings and machinery for the purposes of such mining and manufacturing.”

The incorporators were all citizens of Pennsylvania, and its certificate of incorporation provided that it “Shall have its principal office or place of business at Bethlehem, in the County of Northampton, and State of Pennsylvania.” None of its property was situated in Pennsylvania and its capital was all employed in Missouri, except a small part which was retained to pay the interest on the bonds. Moreover, it was never registered in this state, although the general management of its affairs was conducted at Bethlehem, Pennsylvania.

The court found specifically that the money loaned'upon the bond, now held by the plaintiff, was not a loan to) nor received by, either of these two defendants individually, nor as agents of the Dobson Lead & Zinc Company. It was' borrowed by the company and applied to the improvement and development of its property in the state of Missouri. The defendants signed the bonds as president and secretary and' affixed the corporate seal thereto in compliance with instructions given by virtue of a resolution passed at a regular stockholders’ meeting, and by the action of the board of directors pursuant thereto; and neither of the defendants had any further or personal agency in the negotiating of the bonds.

The plaintiff’s right to recover must be founded oh a contract, either express or implied, and the only question before us is as to his right to recover, in this form of an action, against these defendants as individuals. The court below properly held that the general rule respecting the liability as partners of incorporators and members of foreign unregistered corporations did not prevail in Pennsylvania. There is here, no statute, as exists in some states, which'imposes such an absolute individual responsibility. In reaching this conclusion, the learned judge relied for argument and authority on Guckert v. Hacke, 159 Pa. 303; N. Y. Nat. Exchange Bank v. Crowell, 177 Pa. 313; Montgomery v. Forbes, 148 Mass. 249; Merrick v. Van Santvoord, 34 N. Y. 208; Bond v. Stoughton, 26 Pa. Superior Ct. 483, which are to the effect that the defendants would not be liable to the plaintiff as partners merely because they were members of the corporation, nor by reason of their signatory designation as officers of the company, it nowhere appearing, either in the writing or at the time the bond was delivered, that the transaction was or purported to be their personal contract.

When the execution of a contract is by written obligation, or sealed covenants, the agent cannot be sued upon the instrument itself, unless there be apt personal contractual words of his own, or he sign it as his own: Story on Agency (9th ed.), sec. 264, and notes. These essentials are lacking in the case before us, in that there are no personal covenants of the defendants, nor is the instrument sealed by them, but by the corporation, and authenticated only by their signatures as president and ■ secretary, according to the instruction of the stockholders’ resolution: Hopkins v. Mehaffy, 11 S. & R. 126. And in these essentials it is therefore clearly distinguishable from Quigley v. DeHaas, 82 Pa. 267; Kroeger v. Pitcairn, 101 Pa. 311, and McConn v. Lady, 10 W. N. C. 493.

It plainly appeared by the uncontradicted testimony that by virtue of their implied agency, as president and secretary, they did not sell, negotiate or deliver the bond, which was without any corporate validity, even if registration of the company in this commonwealth had been effected, for the reason that it lacked the counter signature of the trustee, which, by the very terms of the bond, — “This bond shall not be valid unless countersigned by the Trustee” — was essential to its validity. Neither did they receive any money, and it does not appear that they had any further relation to it than as official representatives of the company. The rule which holds an agent responsible where he contracts for the benefit of a principal, without having due authority, is founded upon the supposition that the want of such authority, is unknown to the other party: Story on Agency, sec. 265. In the present case the bond carried on its face, the distinct notice that it required the signature of the trustee to give it validity, so that the case is clearly distinguishable, under these facts, from the case of Lasher v, Stimson, 145 Pa. 30. Whenever individual responsibility is imposed by statute upon officials for corporate actions, in excess of power, it is in the nature of a penal provision, and is not to be extended, by construction, to cases not clearly within the law: Chase v. Curtig, 113 U. S. 452.

It is not necessary to a decision of this case, to dispose of the other questions raised, as under the facts found by the court, which are fully supported by the evidence, the defendants neither jointly nor severally held any personal, contractual relation to the plaintiff. There is no direct evidence as to how, nor by whom the bond was delivered, nor to whom the money was paid, nor as to the person or persons who received the money for the bonds; and the court having specifically found that they did not sell, negotiate or deliver the bond, nor receive the money, and that when they left their hands they were without validity, the cause of action falls.

The assignments of error are overruled and the judgment is affirmed.