Scarlett v. Academy of Music

Alvey, J.,

delivered the opinion of the Court.

I. The first exception taken by the defendant in this case, was to leave given the plaintiff to amend its declaration in open Court, during the progress of the trial, and after the close of the evidence, by inserting certain words in the declaration, to which the defendant had pleaded. The amendment was made, and the trial proceeded.

As to the power of the Court to allow the amendment to be made at that stage of the trial, we suppose there can be no question. The Code, Art. 75, secs. 23 and 24, gives the amplest power to allow any amendments to be made at any time before the jury retire to make up their verdict, in cases of jury trial, and in cases of demurrer and other trials, before the Court, at any time before judgment is entered; and it is declared that no continuance shall be granted, upon amendments made, but that the case shall proceed as if there had been no amendment, unless the Court be satisfied that the ends of justice require a continuance.

The particular objection here, as we understand it, was to the mode of making the amendment; that is, by inserting or interlining the amendment in the original déclarátion on file.' But this is the constant practice, and it has been expressly sanctioned by this Court, in the case of Lohrfink vs. Stile, 10 Md., 535, where it was said by the Court, that “the amendment must actually be made, either by altering the declaration in the cause, or by filing a new one.”

In regard to this question, however, it is proper to say, that the allowance of an amendment, provided it be within the power of the Court granting the leave to make it, is not the subject of an exception, nor of review, by this Court. This has been repeatedly decided. Ellicott vs. Eustace, 6 Md., 506; Warren vs. Twilley, 10 Md., 39; Calvert vs. Carter, 18 Md., 108.

2. By the second exception of the defendant, it appears that his subscription to the stock of the plaintiff was coupled'with the condition, that it should not be binding until stock amounting in the aggregate at par to $200,000 had been subscribed. And after giving in evidence the subscription list, embracing the subscription of the defendant, the plaintiff, for the purpose of showing the amount that had been subscribed to the stock, offered to prove by Mr. Cohen, its treasurer and secretary, that payments to the sto'ck had been actually made to the amount of about §260,000, and the witness furnished a list of the subscribers to said stock who liad paid their subscriptions, the amount paid by them being set opposite their respective names. To the admissibility of all this evidence the defendant objected, but the Court overruled the objection, and allowed the evidence to be given.

It is not easy to perceive the ground upon which this exception was taken. It is not stated that Mr. Cohen’s evidence was at all dependent upon the list of subscribers exhibited by him; nor that the list itself was a copy, or that it was not an original list. If Mr. Cohen had independent personal knowledge of the amount of stock paid in, which the language of the exception would seem to import, or if the list exhibited was an original list made by him, from his personal knowledge of the facts therein stated, there is no principle that would exclude such evidence. As therefore, there is nothing stated in the exception to show that the facts proposed to be proved by the witness were not within his personal knowledge, or that the list used was of a secondary character of evidence, this Court is of opinion that there was no error in admitting the evidence offered; it being incumbent upon the party objecting to the admissibility of evidence to show such state of facts as would render the evidence objected to inadmissible.

3. The third exception was taken to the admissibility of the evidence offered to show that the plaintiff, by its board of directors, had made regular calls upon the stock subscribed ; and the point of the exception seems to have been, that the book, or record of proceedings, was not formally and actually given in evidence, though the witness was allowed to read from it, to show what had been done by the directors. The book, however, was used in the trial, and it does not appear that either the Court or the jury were refused the right to inspect it, or that the defendant was denied the right to inspect it, and cross-examine as to its contents. The book, from the moment that it was identified, and became the source of evidence to the jury, was liable to be treated as evidence in the cause; and the defendant was entitled to inspect and cross-examine in respect to it; and it does not appear that either of these rights was denied him. We therefore approve the ruling, as stated in this exception.

4. With respect to the fourth exception we think there was error. By the fifth and ninth of the defendant’s prayers, which were rejected, the Court was requested to instruct the jury that there was no sufficient evidence of notice or demand of payment of the assessment made upon the stock subscribed by the defendant, such as that contemplated by the 65th section of the 26th Article of the Code, under the provisions of which Article the plaintiff was incorporated.

The question having been thus distinctly made, we must suppose that all the evidence, if any, in relation thereto, has been incorporated in the bills of exception, according to the requirement of the 5th rule respecting appeals ; 29 Md., 2 ; and the only evidence disclosed by the record that at all bears upon the question is that set out in the third exception. It was proved by Mr. Cohen, the secretary and treasurer of the plaintiff, that the board of directors had authorized and-directed the assessments and collections from the stockholders of certain instalments due on their stock, at specified times, the last of which instalments being due and payable on the 10th of September, 1873, and that “said instalments were so called in as directed.” There is nothing said as to the character of the notice and demand ; and we are unable'to gather, from the statement of the evidence in the exception, whether there was notice given or demand made of any sort.

By the 65th section of the Article of the Code referred to, it is provided that the directors or managers of any corporation created under that Article, may call in and demand from tbe stockholders, all sums of money by them subscribed, at such times, and in such payments and instalments as they, the directors or managers, may deem proper, under penalty of forfeiting the shares subscribed, and all previous payments made thereon, if payment shall not be made by the stockholder within ninety days after personal demand, or after notice requiring such payment, published in a newspaper printed nearest to the place where the principal office of the corporation is located. According to our construction of the statement in the bill of exception, there was no sufficient evidence given of any such demand or notice, and therefore the instructions as to this question asked by the defendant should have been granted.

(Decided 24th June, 1875.)

It was contended on the part of the plaintiff that this provision of the statute is only applicable where the corporation is proceeding for the forfeiture of the stock. But that is not the construction that has been placed upon that section of the statute by this Court. In the case of Hughes vs. Antietam Manf. Co., 34 Md., 316, it was expressly held, that such demand or notice was a condition precedent to the right of the corporation to sue for assessments on the stock; and, independently of anjr statutory requirement upon the subject, it would appear, both upon reason and authority, that such demand or notice is necessary. Miles vs. Bough, 3 Q. B., 845; 1 Redf. on Railw., 148.

The other prayers offered on the part of the defendant we think were properly rejected by the Court below.

It follows that the judgment appealed from must be reversed, and a new trial awarded.

Judgment reversed, and new trial awarded.