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Pa.)

HARVEY V. WEITZENKORN

447

from the race. In this action the word "per Appeal from Court of Common Pleas, manent” does not appear in the declaration, Luzerne County. and the proof went to the loss of the crops Action by Olin F. Harvey, Jr., trustee or injury to the use and occupation of the of the Dion Manufacturing Company, banksame land since the former trial. No change rupt, against Joseph K. Weitzenkorn. From was shown in the condition of the raceway, an order discharging a rule for judgment, nor increase in the seepage thereupon; and, the plaintiff appeals. Affirmed. while the water had risen a little higher on plaintiff's land, no more of it was flooded. for judgment for want of a sufficient affida

Assumpsit on stock subscription. Rule We are accordingly of the opinion that the defendant's second point ought to have been the affidavit of defense were as follows:

vit of defense. The material portions of affirmed, and the plaintiff should not have been permitted to recover compensatory dam

“Defendant avers that prior to July 16, ages, because his predecessor in title elected 1907, the date set forth in plaintiff's stateto treat the seepage as permanent in char- ment of defendant's purported subscription acter and had already recovered at the hands of shares of the capital stock aforesaid, he of the defendant full compensation for past was approached on two separate occasions and future injuries to his flooded land. It by W. E. Steelman and H. B. Payne, who follows that exemplary damages should not solicited defendant to become a subscriber have been allowed, for the defendant had for said stock; that on both occasions he done the plaintiff no wrong. Judgment is refused to subscribe, and told said Steelman now directed to be entered for the defendant and Payne that, owing to alterations and non obstante veredicto."

changes then in contemplation and being Argued before FELL, C. J., and 'MES- made in the business establishment of his TREZAT, POTTER, ELKIN, and MOSCH- firm, which required a large outlay of monZISK ER, JJ.

ey, it would be impossible for him (the deFred Ikeler, T. J. Vanderslice, and h. fendant) or his partners to subscribe for Mont. Smith, for appellant.

William H. any stock; that on July 16, 1907, Messrs. Sponsler and Albert W. Duy, for appellee.

Steelman and Payne again solicited defend

ant for a subscription, and he again rePER CURIAM. The judgment is affirmed fused, repeating to them the reasons there. on the opinion of Judge McClure, specially for; that Mr. Steelman, who represented

himself as vice president and general manapresiding.

ger of the Dion Manufacturing Company,

then stated that they wanted defendant's (232 Pa. 447)

subscription to the stock for the influence HARVEY V. WEITZENKORN.

his name might have towards helping them (Supreme Court of Pennsylvania. July 6,

to get other subscribers, and proposed to 1911.)

defendant that he should subscribe con1. CORPORATIONS (88 83, 84*)-STOCK - SUB- ditionally, and if he decided later on that SCRIPTIONS-CANCELLATION.

he did not want the stock, the Dion ManuA corporation may release a subscriber for facturing Company would release him (the stock so as to estop

it from suing thereon; the defendant) from any obligations, and permit contract, like any other, being subject to waiver, cancellation, or dissolution by mutual con him to cancel said subscription without cost sent of all the parties interested.

to him. [Ed. Note. For other cases, see Corporations, "Defendant then stated to Steelman and Cent. Dig. SS 296-328; Dec. Dig. SS 83, 84.*]

Payne that if the proposal last aforesaid 2. JUDGMENT (§ 106*)—RULE FOR JUDGMENT was put in writing he would agree to sub-AFFIDAVIT OF DEFENSE.

An order discharging a rule for judgment scribe upon the conditions named. On the for want of a sufficient affidavit of defense will same day defendant received from said W. not be reversed, except where a pure question E. Steelman, vice president and general manof law is raised, and clear error has been committed.

ager of the Dion Manufacturing Company, a [Ed. Note.–For other cases, see Judgment, letter in words and figures following: ‘July Cent. Dig. $$ 188–192; Dec. Dig. § 106.*] 16, 1907. Mr. Joseph K. Weitzenkorn, Wil3. JUDGMENT (8 159*)-RULE FOR JUDGMENT-kes-Barre, Penna.-Dear Sir: Confirming AFFIDAVIT OF DEFENSE.

our verbal proposition of this morning, we corporation for the amount of a subscription to beg to advise that we will take your subits stock, an order discharging a rule for judg- scription to our capital stock and if at the ment for want of a sufficient affidavit of de- expiration of three months you decide that fense will not be reversed, where the affidavit you cannot take the stock subscribed for, alleges that the subscription was conditional and under a collateral agreement, by which he we will release you of the obligation withwas given three months to decide whether he out cost to you. Thanking you for any conwould take the stock, and that when he refused sideration you may give us, we are, Yours to take it the corporation canceled the subscrip- very truly, Dion Manufacturing Company. tion while still a solvent, going concern. [Ed. Note.-For other cases, see Judgment,

[Signed] W. E. Steelman, Vice Pres. & Gen. Dec. Dig. § 159.*]

Mgr.' And thereupon he (the defendant)

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

subscribed for 15 shares of the stock afore- been informed, verily believes, and expects said, said subscription being made by the to be able to prove upon the trial of this defendant upon the expressed condition nam- cause that the Dion Manufacturing Compaed in said above-quoted letter; it being fully ny, by its constituted authorities, upon reunderstood and agreed between said Steel- ceipt of defendant's letter declaring his deciman and himself that the said subscription sion not to take the stock thus conditionally should not become binding and effective, subscribed for, canceled the said subscripunless it was subsequently ratified and con- tion, and while a solvent going concern, nevsummated by the defendant in accordance er entered the defendant's name upon its with the terms of said written proposal. books or account as a subscriber, or treated

“Defendant avers that afterwards no fur- said subscription as an asset of the compather communication was had between him- ny." self and any one else in relation to the mat. The court discharged the rule for judgter until, on October 18, 1907, he received ment for want of a sufficient affidavit of a letter from the Dion Manufacturing Com- defense. pany in words and figures following: 'Oc Argued before FELL, C. J., and MESTREtober 18, 1907. Mr. J. K. Weitzenkorn, No. ZAT, POTTER, ELKIN, and MOSCHZIS4 S. Main St., City-Dear Sir: We hand KER, JJ. you herewith notice of your subscription to

Andrew Hourigan and Thomas Butkiethe capital stock of this company, and will wicz, Jr., for appellant. Joseph D. Coons, appreciate it very much if you will send for appellee. us a check for the same. We are operating our plant, and need the money in order that

POTTER, J. The appellant here alleges we may put our product on the market. that the court below erred in discharging a Yours very truly, Dion Manufacturing Com- rule for judgment for want of a sufficient pany. [Signed] E. C. Wagner, Treasurer.' affidavit of defense. The action was asThat immediately upon receipt of the letter sumpsit to recover the amount of a sublast aforesaid he replied thereto in a letter scription to capital stock. In his affidavit of to Dr. E. C. Wagner, treasurer (a copy defense, the defendant alleged that his subwhereof is hereto attached and made part scription was conditional, and was made hereof), wherein he declared his decision under a collateral agreement, by whieh he not to take the stock conditionally subscrib- was allowed three months' time in which to ed for, and asked that his name be stricken decide whether he would take the stock or from the subscription list. And defendant

not. Neither the statement of claim nor the avers that from that time on up to May 25, affidavit of defense makes it clear whether 1909, when he received a letter from 0. F. the company had been incorporated at the Harvey, Jr., which letter was in words and time the subscription was taken. While our figures following: May 25, 1909.

In re

cases seem to make a distinction between Dion Mfg. Co. Joseph K. Weitzenkorn, conditional subscriptions to the capital stock Weitzenkorn Bldg., City—Dear Sir: I was of a corporation, made before incorporation, duly elected trustee of the Dion Manufactur- and those made afterwards, yet the rights of ing Company, bankrupt, and upon going Co-subscribers are not to be injuriously afthrough the books of the company, I find fected by any secret agreement. Where oththat you made a subscription to the capital er subscriptions are made upon the faith of stock of the company in the sum of fifteen a signature, it would be unjust to permit a hundred (1,500) dollars, which has not been secret arrangement to prevail. See Miller v. paid. As this is an asset of the company, Hanover Junction R. R. Co., 87 Pa. 95, 30 I am obliged to call upon you for payment, Am. Rep. 349. This case was cited in Moore and trust that you will favor me with your v. Railroad Co., 94 Pa. 324, 328, where it check at an early date for the above amount. was said: “The defendant Miller set up a Yours very truly, [Signed] Olin F. Har- secret parol condition in order to defeat his vey, Jr.'--no demand, verbal or written, of subscription, but it was held that he could any kind or character, was ever made upon not be permitted so to do, on the ground him for any payment, nor was notice of any that it would be unjust and a fraud upon call or assessment upon such subscription his co-subscribers to permit him, on such of stock ever given him by the said Dion grounds, to escape responsibility, and thus Manufacturing Company, or any one repre-throw upon them an additional burden." senting or claiming to represent said com- See, also, Phila. & Del. County R. R. Co. v. pany; that he was never notified to attend Conway, 177 Pa. 361, 35 Atl. 716; Marles a meeting of the Dion Manufacturing Com-Carved Moulding Co. v. Stulb, 215 Pa. 91, pany; never did attend any meeting there-64 Atl. 431. In Real Estate Trust Co. v. of; never had any knowledge of its busi- Manufacturing Co., 223 Pa. 350, 356, 72 Atl. ness; and never at any time regarded him-695, it was held that a subscriber to the self, nor was any notice brought to him that stock of a corporation could set up a secret he was regarded by said company, or its parol agreement in defense to an action by officers, as a stockholder thereof or therein. the assignee of the company, to recover the

Me.)

HOULEHAN V. INHABITANTS OF KENNEBEC COUNTY

449

under the terms of the subscription agree- | less the payment was induced by fraud, or im. ment, if he should be relieved of liability, all position, or undue influence. the other subscribers would also be released.

[Ed. _Note.-For other_cases, see Payment, [1] Under these and other general author: Cent. Dig. 88 267–271; Dec. Dig. § 84.*1 ities which might be cited, the right of the 3. FINES ($ 19*)-PAYMENT-MISTAKE-RIGHT

TO RECOVER. defendant to successfully set up a collateral

A fine, illegally imposed, but voluntarily agreement seems doubtful. But in his affi- paid under mistake of law, is not recoverable. davit of defense he goes further, and avers

[Ed. Note. For other cases, see Fines, Cent. that after he had declined to take the stock, Dig. $$ 42, 43; Dec. Dig. $ 19.*] and while the company was still a solvent, Report from Supreme Judicial Court, going concern it canceled his subscription. Kennebec County, at Law. The general rule is that "a corporation may Action by Peter Houlehan against the release a subscriber, so far as to estop it Inhabitants of Kennebec County. On reand its assignee in insolvency from suing

port. Judgment for defendants. thereon." 4 Thompson on Corporations (2d Ed. 1909) $ 3869. “A subscription contract, received, brought in the Supreme Judicial

Action of assumpsit for money had and like any other contract, may be waived, canceled, or dissolved by the mutual consent of Court, Kennebec County. An agreed stateall the parties interested. The interested ment of facts was filed, and the case reportparties are the subscriber himself, the other ed to the law court for determination. stockholders, and the corporate creditors ex

Argued before WHITEHOUSE, C. J., and isting at the time of the cancellation." 1

SAVAGE, SPEAR, CORNISH, BIRD, and Cook on Corporations (6th Ed. 1908) $ 168.

HALEY, JJ. “Such cancellations are good when permit George W. Heselton, for plaintiff. Wil. ted by the governing statute, where there liamson, Burleigh & McLean, for defendare no creditors, and provided all the stock-ants. Joseph Williamson, Co. Atty., filed a holders assent." 10 Cyc. 452.

brief for the State. [2] The affidavit is not as specific as it might be in setting out the facts as to the BIRD, J. [1] This action for money had alleged cancellation, and does not set out the and received is before us upon report on manner in which it was done; but it does agreed statement of facts. From the stateaver, on information and belief, that the ment it appears that, at the January term, corporation, “by its constituted authorities,” 1910, of the superior court of Kennebec canceled the subscription. An order dis-county, verdicts of guilty were rendered charging a rule for judgment for want of a upon sundry indictments against plaintiff, sufficient affidavit of defense, will not be re and subsequently, at the same term, sentence versed, except where a pure question of law was imposed upon each of the indictments; is raised, and clear error has been commit- that upon two of the indictments the sented. Wilson v. Trust Co., 225 Pa. 143, 73 tences involved a pecuniary fine and imAtl. 1071, and cases there cited.

prisonment; that exceptions were taken in [3] The present case is by no means so all the cases, and bond given for their prosclear as to warrant us in reversing the order ecution; that on the 27th day of April, of the court below. The specification of error 1910, after the final adjournment of the is overruled, and the judgment is affirmed. April term, 1910, of said court, and in vaca

tion, in the presence of plaintiff, his counsel, (108 Me. 397)

his bondsmen on exceptions, and the clerk HOULEHAN V. INHABITANTS OF

of courts, and without knowledge of the KENNEBEC COUNTY.

county attorney, the justice of said court (Supreme Judicial Court of Maine. Nov., “amended the said sentences," and in one of 1911.)

the cases imposed a sentence of $1,000 fine 1. FINES ($ 19*) — PAYMENT — RIGHT TO RE

or 30 days in jail, and ordered the entry: COVER,

Plaintiff having been convicted of offenses, “Exceptions withdrawn. On file”-to be made and sentences of fines and imprisonment im- in the other cases; that the "amended senposed, the sentences were subsequently amended, tence” was made on condition that it should In vacation, after adjournment of a term held be immediately performed, and, in addition, subsequent to that at which the sentences were awarded, at plaintiff's instance, to impose $1,- that a bond with sureties should be given 000 fine or 30 days' imprisonment in one case, by plaintiff, then defendant, to violate none punishment in the other case being suspended of the provisions of the law under which the The $1,000 was paid. Held, that plaintiff cannot recover the payment; it having been made indictments had been found; that defendant, voluntarily and pursuant to an unlawful ar- now plaintiff, requested a nol. pros. of all the rangement.

cases upon the payment of the fine of $1,000 [Ed. Note. For other cases, see Fines, Cent. and the giving of the bond; that the justice of Dig. $8 20-22; Dec. Dig. $ 19.*]

the court refused, stating that, if the bond was 2. PAYMENT (8 84*)-MISTAKE-RIGHT TO RE-performed, nothing further would be heard COVER.

Money paid under mistake of law, with full from the cases, but that the filing of the other knowledge of the facts, is not recoverable, un cases after payment of the fine of $1,000 would

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

81 A.-29

be an additional assurance that the bond, mittimus was issued, nor was its issue sugwould not be broken; that the defendant, gested. The conference was held for the "thus assured that the cases were disposed purpose of relieving the plaintiff from imof and would never be called up, unless he prisonment under the lawful sentences which violated his peace bond, and having the al- would be in effect if his exceptions were ternative to pay or go to jail" on the indict- heard and overruled. The whole transaction ment in which the "amended” fine of $1,000 was improper, illegal, and in defiance of had been imposed, paid the clerk of courts law, and in it the plaintiff was a prominent the fine of $1,000, and on the same day the and the most interested actor. clerk of courts paid it to the treasurer of left where his illegal act placed him. To defendant county, who made due entry of hold otherwise would be in violation of the amount upon his books as received in every consideration of public policy. payment of the fine; that on the 27th day [3] The proposition that a fine illegally of June, 1910, all the cases were certified imposed, but voluntarily paid under misto the law court, and there entered as in take of law, cannot be recovered back, is order for hearing upon the original excep- supported by ample authority. Harrington tions, where they are now pending; that inv. New York, 40 Misc. Rep. 165, 81 N. Y. August, 1910, demand was made on defend- Supp. 667, Comm. v. Gipner, 118 Pa. 379, ant county, through its county commission- 12 Atl. 306; Bailey V. Paullina, 69 Iowa, ers, for the return of the $1,000 so paid, 463, 29 N. W. 418; McKee v. Anderson, Rice which the commissioners on the 16th day(s. C.) 24. See, also, Houtz v. Uinta Counof September, 1910, declined to make. The ty, 11 Wyo. 152, 70 Pac. 810. writ is dated September 16, 1910.

If the plaintiff considers it a case of hard[2] The payment made by plaintiff was ship, in the event that judgment be finally not only not made under mistake of fact, entered for the state upon the indictments, but with full knowledge of the facts. And redress cannot be afforded the plaintiff by the authorities are abundant that both at the judicial courts. law and in equity money paid under mis Judgment for defendants. take of law, with full knowledge of the facts, is not recoverable, unless the payment was induced by the fraud or imposition or

(35 Vt. 99)

STATE v. CRAY. the undue advantage of him who received it, or was made under duress. Norton v. Mar (Supreme Court of Vermont. Chittenden. den, 15 Me. 45, 32 Am. Dec. 132; Norris v.

Oct. 9, 1911.) Blethen, 19 Me. 348, 351; Parker v. Lan- HEALTH ($ 37*) - OFFENSES – DISTRIBUTING

SAMPLE DRUGS-LIABILITY. caster, 84 Me. 512, 517, 24 Atl. 952; Mar

Under P. S. 5902, punishing one who discotte v. Allen, 91 Me. 74, 39 Atl. 346, 40 tributes or causes to be distributed a trial samL. R. A. 185; Coburn v. Neal, 94 Me. 541, ple of a medicine, by leaving the same exposed, 48 Atl. 178; Elston v. Chicago, 40 Ill. 514, so that children may become possessed thereof,

a master is liable for the acts of his servant in 89 Am. Dec. 361, 365.

distributing a free sample of medicine by handThere is no suggestion even in the agreed ing the same to a child four years old, though statement that the payment was induced the servant acts in violation of the express in

structions of the master; the question of inby fraud, imposition, or undue advantage. tent being immaterial. Nor was there duress. There was no im [Ed. Note.-For other cases, see Health, Dec. prisonment, or

or threatened imprisonment. Dig. $ 37.*] Unquestionably none of the parties present

Exceptions from City Court of Burlington; when the sentence was “amended” contem- E. C. Mower, Judge. plated anything in execution of the "amend

Eugene J. Cray was convicted of distributed” sentence but payment of the fine. The ing free samples of medicine, and he brings agreed statement shows that the present exceptions. Affirmed. plaintiff must have so regarded it when he Argued before ROWELL, C. J., and MUNrequested the justice to nol. pros. all the sox, WATSON, HASELTON, and POWindictments upon the payment of the fine of ERS, JJ. $1,000 and the giving of the bond. We can

Henry B. Shaw, State's Atty., and Guy B. not infer force or threat in fact from the Horton, for the State. Max L. Powell, for facts of the agreed statement (Trafton v. Hill, respondent. 80 Me. 503, 15 Atl. 64); still less that any force or threat induced the payment (Dun WATSON, J. The respondent is complainham v. Griswold, 100 N. Y. 224, 3 N. E. 76). ed against for distributing and causing to be

It is true that the agreed statement al- distributed at Burlington, on the day named, leges that, when the sentence and docket a free sample of a certain medicine known had been "amended,” the plaintiff had the as “De Witt Kidney and Bladder Pills," by alternative to pay the fine of $1,000 or go handing the same to one Rosie Parrotti, a to jail. But, as we have seen, the payment child of the age of four years, in violation of of the fine only was contemplated. No the provisions of P. S. 5902 By that section,

Vt.)

STATE Y. CRAY

451

“a person, firm or corporation that distrib- , and also horses, carts, wagons, etc., to reutes or causes to be distributed a free or main in said highway, a great and unreatrial sample of a medicine, drug, chemical sonable length of time.” It was contended or chemical compound, by leaving the same that the corporation was not liable to indictexposed upon the ground, sidewalks, porch, ment because its agents and officers had doorway, letterbox, or in any other manner, erected and maintained a common nuisance, that children may become possessed of the but that the only remedy was against such same, shall be fined,” etc.

officers and agents; that it cannot be indictNo question is made but that on the facts ed for positive misfeasance of its agents, inpresented this statute was violated at the asmuch as such persons are not the comtime and place and in the manner set forth pany's agents for any such purpose. Holding in the complaint, not by the respondent in the corporation liable, the court said an inperson, but by his agent or servant, acting dictment for a nuisance is only a mode of with him in distributing at houses in Bur- trying the right, in a public form, the same lington free samples of the pills named. The right that is involved in every private acrecord shows that, before sending this agent tion, for the same reason. or servant out to make such distribution, the In Reg. v. Stephens, Law Rep. 1 Q. B. respondent expressly cautioned and instruct-702, the respondent was indicted for obed hiin against delivering the sample boxes to structing the navigation of a public river by children. The sole question, therefore, is casting and throwing, and causing to be whether the master is liable under the stat-cast and thrown, slate, stone and rubbish ute for the acts of his servant in violation in and upon the soil and bed of the river, thereof against his general instructions. etc. The respondent was the owner of a

This statute is in exercise of the police slate quarry, but because of his great age power, for the general protection by the was unable personally to superintend the state, as parens patriæ, of children within working of it. Quantities of rubbish from its domain; they being incapable of protect the quarry were from time to time shot by ing themselves. At common law infants, as respondent's workmen on a certain spot, well as idiots, are under the care and pro- from which it slid into the river, by means tection of the sovereign, as persons equally of which navigation was obstructed. Re. unable to take care of themselves. Eyre v. spondent was prepared to offer evidence Countess of Shaftsbury, 2 P. Wm. 102. Lord that the workmen had been prohibited by Hardwicke said that, "in respect of lunatics, him and his sons from thus depositing the idiots, and infants, the king is bound to take rubbish, and that they had been told to care of them.” Smith v. Smith, 3 Atk. 304. place it in a certain other place provided This legislation does not prohibit the dis- for that purpose. The trial judge intimated tribution of free or trial samples of such ar- that this evidence was immaterial, and inticles as are therein named, but it does un-structed the jury that, as the respondent dertake to regulate their distribution in the

was the proprietor of the quarry, the quarinterests of humanity, by making it a tech- rying of which was carried on for his benenical crime to leave the article exposed in fit, it was his duty to take all proper prethe places named, or in any other manner, cautions to prerent the rubbish from falling whereby the possession thereof may be had by children, persons of limited understand- | into the river, and that if a substantial ing, perhaps to their own injury, or to the part of the rubbish went into the river, of It

from having been improperly stacked so near tains to their physical well-being, and hence the river as to fall into it, the respondent to the interest of the state.

was guilty of having caused a nuisance, alThe action given for its violation, though though the acts might have been committed criminal in form, is in substance more par- | by his workmen, without his knowledge and ticularly civil in nature, designed to prevent against his general orders. A rule having . the recurrence of that which constitutes a been obtained for a new trial, on the ground public nuisance. No private action can be that the judge misdirected the jury that the had by a person to recover damages for a respondent would be liable for the acts of public nụisance, nor for an injunction to

his workmen in so depositing the rubbish abate such nuisance, unless he has suffered as to become a nuisance, though without his an injury peculiar to himself beyond that by knowledge and against his orders, Judge the rest of the public. Baxter v. Winooski Mellor said that, though an indictment, it Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; was in substance in the nature of a civil Sargent v. George, 56 Vt. 627. It is the gen- proceeding; that the only reason for proeral rule that common nuisances against the ceeding criminally was that the nuisance public are punishable only by indictment. In affected the public at large, and no private State v. Vermont Central R. Co., 27 Vt. 103, individual, without receiving some special the railroad company was indicted for a nui- injury, could have maintained an action; sance in obstructing a public highway, by that the respondent found the capital and building and maintaining their depots with carried on the business which caused the in its limits, and by “unlawfully and in- nuisance, and it was carried on for his benejuriously suffering their engines and cars, fit; that the respondent could not say that,

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