
    ESPY VS. MOUNT LEBANON CEMETERY.
    A subscriber to a cemetery company will not be allowed to show that his" subscription was upon the secret understanding that it was not to be valid unless a certain street were opened.
    When the agreement did not show what company the subscription was for, it could be shown, by parol.
    No. 101 October and November Term, 1876. Error to Common Pleas, No. 1, of Allegheny County. This was an action of assumpsit by the Mount Lebanon Cemetery Company vs. William Espy. Plaintiff was allowed to prove by parol that it was the corporation intended in the agreement. The Court below reserved a question of law and afterwards decided in favor of the Cemetery Company in the following opinion by
    Stowe, J.:
    The facts under "which the question of law was reserved in this case were as follows:
    Wm. Espy, the defendant, with a number of other persons signed an instrument in writing as follows:
    “We the undersigned do hereby agree to take one share each of the value of 1,300 dollars for the purchasing the farm now owned by Iieury Bockstoce, situate in Scott Township, County of Allegheny, and Staff of Pennsylvania, on the old Washington road, and known as the Lebanon Nurseries, and containing about 100 acres, which the said Bockstoce has agreed to sell for the sum of $130,000, and we do further agree to pay the same in manner following, to wit: $100 on each share to be paid on or before the the 1st day of August; $100 ’on or before the 1st day of September, and $100 on or before the 1st day of October, 1873, and and the balance in 10 equal annual payments of $100 each, from October 1, 1873, with interest on the whole remaining unpaid, payable annually.
    “Pittsburg, July 8, 1873P
    
    
      Pro ut same filed with plaintiff's statement of claim.
    That said subscription was made and paper signed with the understanding and agreement that a charter of incorporation for a Cemetery Company should be procured by said subscribers and “that they would severally pay the sums so subscribed by them to said corporation
    
    
      That defendant and others petitioned the Court of Common Pleas of Allegheny County, and procured a charter of said Cemetery Company from said court, and that tne company was duly organized under said charter by the election of officers, and that plaintiff is said corporation.
    The only fact under the evidence submitted to the jury was as to whether or not defendant had taken any part in the coporation or its business after its organization, which fact was found in defendant’s favor, the jury returning specially in their verdict that he “did not participate in the management of the corporation, either as stockholder or manager, after the date of its charter,” and also finding under the instruction of the Court in favor of plaintiff $506.82, subject to the opinion of the Court upon the question of law reserved upon the foregoing fact as to plaintiff’s right to recover.
    The defendant alleged and offered to prove that when he subscribed said paper there was an agreement with him that he was not to be called upon to pay any of his subscription until a good street should be made leading from Pittsburg to the land mentioned in same, etc. The evidence, however, was excluded by the Court and bills of exception sealed for defendant.
    The only question now before the Court is whether under the facts herein before stated, and upon which the question of law was reserved, the plaintiff has a right to recover in this actiom
    If it were not for the verbal agreement that the subscriptions were to be paid to the corporation when it should be formed, we should be of opinion that plaintiff' could not recover in this action, but under the facts arising out of the entire agreement, written and verbal, we think plaintiff has a right to recover and judgment should be entered on the verdict.
    Aiid now, March 27, 1876, judgment is now directed to be entered upon the verdict of the jury in the case in favor of plaintiff and against defendant upon payment of the verdict fee.
    Espy offered to prove that some of the subscribers were infants and married women, and their subscriptions invalid for that reason. The Court overruled the offer. Espy took a writ of error complaining of the rulings above stated.
    
      
      John G. Bryant and M. W. Acheson, Esqs. for Espy
    argued that the Cemetery Co. is a stranger to the agreement and cannot recover. Strasburg R. R. Co. vs. Echternacht 9 Harris 220. Phillip’s Academy vs. Davis 11 Mass. 112. The subscription must be in writing; P. & S. R. R. Co. vs. Gazzam 8 Casey 349. In the case of the Edinboro Academy vs. Robinson 1 Wright 210, the intended corporation was designated.
    If the plaintiff was permitted to put in parol evideuce, the same privilege should be allowed to the defendant. A verbal promise to obtain the execution of a writing may be shown ; Powelton Coal Co. vs. McShain 25 P. F. Smith 238. “The plaintiff was attempting to use the paper in fraud of the understanding of the parties to it at the moment of its concoction, an attempt which opens the door to parol proof.” Dutton vs. Tilden 1 H. 49.
    
      C. Hasbrouck and George P. Hamilton, Esqs., Contra.
    
   On October 23, 1876, the Supreme Court affirmed the decision of the Court below in the following opinion.

Per Curiam.

The subscription in this case was a contract among and between the subscribers. Its purpose and the intent to become incorporated, could be shown by parol, because nothing in the writing conflicted with this evidence. On the other hand, the defendant could not prove a condition in his subscription, that its payment should depend on the making and finishing of a certain street or l’oad to the cemetery, for this would be inconsistent with the writing, which made no such terms for the subscribers, and would conflict with the interests of the other subscribers, who were not privy to the condition. A secret condition not set forth in the paper, might defeat the entire purpose of those who subscribed generally and subject to no condition.

Judgment affirmed.  