1842. Roberts v. Button et al. RUTLAND, ent with the idea that he expected to have the promissory February, note of the trustees for it? Nothing could be more absurd than the attempt to extort such an inference from the transaction thus far. 3. The company authorized the defendants. to buy this property on the terms of the plaintiff's offer. 4. They did buy it, as I will soon attempt to show, on the very terms they were authorized to take it upon; and 5, the company immediately entered into the use and enjoyment of the property. It is true the land was conveyed to the defendants personally, but this was, no doubt, for the convenience of reconveyance to the corporation, when one should be obtained, and the fact that the defendants held the land in trust for the company is fully disclosed in the deed. And if that conveyance has not yet been made, it cannot affect the case. The defendants must be considered as holding as trustees for the corporation or company still. Under these circumstances, it seems to me, nothing could be further from the probable intention of the parties than to say the credit was given to the defendants, personally, and that the plaintiff expected their personal guaranty in payment of the price, and that they expected to give it. The very note, too, shows that they intended to sign only as agents of the company, and this known to the plaintiff, who was himself a member of the company, and conversant, of course, with all their doings in the premises. To say, then, that this could, at the time, have been understood as a personal undertaking of the defendants, by any of the parties concerned, is to suppose what is not indicated, as it seems to me, by any one important circumstance in the whole transaction. I come, lastly, to consider what is, perhaps, the most reasonable ground of argument that these defendants should be held personally liable upon this note, i. e. that in giving it they exceeded their authority. For convenience, I have often spoken of the defendants' contract as a note, which indeed, strictly and technically, it is not. In giving a construction to this contract, we may, and, indeed, must, take into consideration the subject matter of the contract, the time, place, and manner of its execution, and the other writings connected with the same contract, and the defendants' authority and character. 1 The plaintiffs were willing their property should go as 1842. Roberts v. Button et al. advanced stock. But they had subscribed but one thousand RUTLAND, February, dollars, and that was just the amount of this purchase. In order to have this all reckoned as stock paid in advance, it was necessary that all the stock should be assessed to its full amount, whether the funds were needed or not. This the company might not choose to have them do. And the company might restrict their trustees as they pleased. They certainly had not then so declared, unless directing the purchase of plaintiffs' stock, on his terms, did amount to assessing the subscriptions to the full sum, which it clearly did not. As prudent agents of the company, then, the defendants provided that if it should not become necessary to assess to the full amount, so that all the price of plaintiffs' sale could go in the way proposed, the balance should be paid him in money. This was the only arrangement they could have made, short of committing themselves to assess all the subscriptions to the full amount, which they had no power to do, unless it was necessary to carry on the business of the company. The defendants did then give just such a contract as the plaintiff must have intended, by his offer. His offering to have it reckoned as advance stock must have been intended to be qualified with the condition, if it became necessary to assess the subscriptions to the full amount. The plaintiff did not, by his offer, intend to pay the full amount of his subscription while others paid but half of theirs. So, too, the company must have received his proposition with this qualification. The defendants, as prudent trustees, have given him a certificate of stock, paid in, to the amount of $1000, with this very qualification annexed, i. e. if it became necessary to assess to the full amount of the subscriptions, otherwise the company shall pay back the balance. So that I think it is obvious the defendants did not execute a promissory note, nor any writing, varying the contract from the terms of the plaintiff's offer, which, by express agreement of the company, they were directed to accept. This, then, of itself, shows they did not exceed their authority. This contract, too, is strictly in accordance with that provision in the fundamental agreement of the company, that the trustees shall not pledge their credit beyond the amount of their subscriptions. For the very terms of the contract provide that, in that event, the whole amount of the contract shall be February, 1842. Slason v. RUTLAND, reckoned as advanced stock. So that, as to any liability, beyond the amount subscribed, the contract is, in its very terms, felo de se. The fundamental contract of the association, too, provides that the business shall be transacted in Wright et al. the name of the company, by their agents or trustees, for the mutual benfit of the undersigned,' and then directs these defendants to make this very purchase, on the identical terms they did make it, and they received the property, and now the defendants are to be personally liable, because, forsooth, they exceeded their authority, and thereby practiced a virtual fraud upon the plaintiff, who was himself a member of the company, and conversant of all the circumstances, and of course, consenting to run his own risk as to the validity of defendants' authority. If any case of more absolute justice, on the part of defendants, can be imagined, and if it be not as strictly in accordance with long established principles and, precedent of the law, as it is with justice and equity, I confess myself incompetent to apprehend, so far, the just relations of things, or rightly to distinguish between contrariety and coincidence. This is the judgment of a majority of the members of this court, before whom the case has been argued. Proctor v. Webber, 1 D. Chip. R. 371, is, in my apprehension, an authority, to the full extent, for the decision we now make. Judgment affirmed. FRANCIS SLASON V. SIMEON WRIGHT and REUBEN R. (In Chancery.) When an answer alleges facts constituting a full defence, but not responsive to the bill, and the answer is not traversed, the bill must be dismissed. A cross bill, in our practice, is considered as a mere dependency upon the original bill. THIS was an appeal from a decree of the court of chancery dismissing the orator's bill. February, The orator's bill was brought in common form to foreclose RUTLAND, a mortgage executed to the orator by the defendant, Wright, who answered the bill, and, in his answer, set forth facts constituting a full defence, upon the merits, but these facts were not responsive to the bill. The answer was not traversed. The defendant, Wright, filed a cross bill, which he subsequently withdrew, by contract with the orator; but the contract did not include the withdrawal of the answer of Wright. The defendant, Thrall, also filed a cross bill, setting forth matter of defence and claiming a discovery, &c.; but this cross bill did not seek to enforce any distinct claim against the orator. The orator filed replications to the cross bills of the defendants. As the case was decided in this court upon a point not involving the merits of the controversy, it becomes unnecessary to state any other facts than those above stated, and such as appear from the opinion of the court. After argument by E. A. Ormsbee for orators, and R. R. Thrall for defendants; The opinion of the court was delivered by REDFIELD, J.-The orator's bill is one for foreclosure in the usual form. The defendant, Wright, (the mortgagor) answers, alleging facts which make a full defence, upon the merits of the bill. This defence, it is true, is not responsive to the bill,and had the answer been traversed, must have been proved by defendant, or it could not have availed the party. But this answer, not being traversed, and the case set down for hearing, on bill and answer, all the facts alleged in the answer must be taken as true. This being the case, the orator cannot expect to prevail on the bill. It is true the defendant, Wright, filed a cross bill, which he subsequently, by contract with the orator, dismissed, but his stipulation did not extend to withdrawing his answer to the original bill. The replication to the cross bill of Thrall in the case, or to that of Wright, has been referred to as equivalent to a traverse of the defendant's answer; but the court cannot so consider it. It is not in form, nor in substance, a traverse of the answer-it has no reference to the answer whatever and cannot be so regarded, without VOL. XIV. W. R. IV. 27 Slason v. Wright et al. 1 RUTLAND, manifest violence to all rules of practice in courts of chancery, February, 1842. as well as all rational interpretation. The original bill was then correctly dismissed. Slason 0. Wright et al. This disposes of the whole case. For as Thralls cross bill was matter of defence, like an answer or a plea, it must fall with the case. This cross bill is not made the ground of any distinct claim; not even a bill to redeem. It is strictly defensive to the principal bill, claiming a discovery, &c. It is true, that in England, cross bills have sometimes been entertained in a different court from that in which the principal bill was filed. Story, Eq. Pl. 318. But, in our practice, the coss bill has been considered a dependency, merely, upon the principal bill. It is so considered in the United States courts. Eq. Pl. by Story, ubi supra. Decree of the chancellor affirmed with costs. |