
    The International N. S. E. Corporation, vs. The American N. S. E. Corporation.
    
      Kent,
    
    
      April 25, 1930.
    
      James L. Wolcott, and Walter Biddle Saul, of Philadelphia, Pa., for complainant.
    
      Clarence A. Southerland, of the firm of Ward and Gray, for defendant.
   The Chancellor.

The bill is framed on the theory that there was never any delivery of the contract by the complainant to the defendant, the allegations of the bill on this point being that the contract after execution was stolen, or in some surreptitious way taken from the files of the complainant.

The suggested amendment to paragraph twelve of the bill contains the clause, “or which if delivered was delivered in violation of the terms of said resolution, or in any event is being retained by the defendant corporation without the defendant corporation having complied with the terms of the resolution under which the contract was authorized, and without the defendant corporation having delivered to the plaintiff corporation the consideration for said contract.”

The last clause of this suggested amending language commencing, “or in any event,” etc., is but a statement in other language of paragraph nine of the original bill, which paragraph and other allegations of the bill allege that the defendant is assuming to treat the contract as an existing one. Therefore it would appear that the clause just mentioned is unnecessary as adding anything to the bill.

The first clause of the quoted language, however, viz., “or which if delivered was delivered in violation of the terms of said resolution,” seems to me to be inconsistent with the entire theory of the bill, for the reason that it seems to look to the idea that there has been a failure of consideration, and that such failure of consideration constitutes ground for the cancellation of the contract, whereas the theory of the bill rests on the non-existence of the contractual relations because of fraud or theft. If this is the effect of the clause, as it is, it is so inconsistent with the bill as now drawn as to forbid its incorporation in the bill by way of amendment.

Leave to amend paragraph twelve of the bill in the manner suggested will, therefore, be denied.

I understand the defendant does not object to the other proposed amendments to the bill. This being so, they will be allowed.

Order accordingly.  