
    BICKEL VS. THE PHILADELPHIA WOOD PAVING CO.
    The president of a corporation cannot purchase a claim against it at a discount, and then collect the full amount.
    The judgment will not be reversed for an error, which does not harm the-plaint ® in error.
    The Court may allow new matter to be brought out on cross-examination.
    The Court may ask a question for the purpose of affording a witness an opportunity for explanation.
    Error to Common Pleas No. 3 of Philadelphia County; No. 361 January Term, 1880.
    This was an action of tresspass on the case brought by The-Philadelphia Wood Paving Co. against John M. Bickel, the president of the Co.; William M. Bickel, hi* brother, the secretary and treasurer of the Co., and John F. Bickel, the son of' John M. Bickel. The first count charged the defendants with a-conspiracy to take and keep the proceeds of a certain lot of ground on Diamond street, the property of the Co., and that in pursuance thereof they converted the same to their own use. The second count charged a similar conspiracy and conversion, as to the profits of a paving contract on the Callowhill street bridge, whieti profits belonged to the Co. by virtue of its ownership of the Alexander Miller Improved Wood Pavement, which was the pavement laid on said bridge. The third count charged a conspiracy to secrete the books of the Co., &c. The fourth count charged a conspiracy to cheat the Co. out of a $500 ground rent. The trial resulted in a verdict in favor of William M: Bickel, one of the defendants; and against the other two defendants, John M. and John P. Bickel for $5,777.36. John M. Bickel and John P. Bickel then took a writ of error and assigned twelve specifications of error as follows:
    1. There was error in admitting the offer of the plaintiff to prove by John M. Bickel, one of the defendants, that the Philadelphia Wood Paving Company, was the owner of The Alexander Miller Improved Wood Pavement, for the city tif Philadelphia for the years of 1870,1871 and 1872.
    2. The Court erred in admitting the following offer of evidence :
    Plaintiff’s counsel offers to prove that the judgments of John M. Bickel and John P. Bickel, Nos. 2632 and 1381, of December Term, 1871 respectively, were obtained upon notes, which were a consolidation of various notes and obligations, against said Philadelphia Wood Paving Company, in favor of John M. Bickel, John P. Bickel, James II. Carman, L. S. Pilbert and others, that it was understood and agreed by said Bickel, at the time of said consolidation, that upon the sale of the personalty of the company on execution upon judgments to be obtained, the plaintiffs would purchase it, unless it otherwise brought a fair price, and re-sell it at the best price to be obtained, and account for the proceeds, that they did so buy it, and re-sell .it, and received and retained a sufficient sum to satisfy their portions of said judgments, long prior to the attempted appropriation hy them, of the proceeds of the wrongful sale of the lots on Diamond street.
    “Under this offer plaintiff’s witness Dr. L. S. Pilbert testified “in substance that said judgments were made up partially by the “money which John M. Bickel represented, John F. Bickel, the “witness himself, Mr. Hague and Mr. Carman. As Mr. Carman, “Mr. Hague and the. witness held notes against the Philadelphia “Wood Paving Co. fpr moneys advanced — these notes — at least “that of the witness — were handed to,Mr. John F. Bickel, the “understanding was that inasmuch as the persons named, advanced the money to pay the debts of the company for which “they received not,es .that they should give .these notes up — the “witness his, Mr. Carman and Mil - Hague theirs — and these “should be p,ut into the judgments of the two Bickels and the “machinery should he sold as it was personal property, and in “case it did not not bring its,value they were to buy.it in, John “M. Bickel was to buy it in, and.what we would realize out of “it we would then get our money out of it in that way. It was “agreed it should then be resold and whatever it brought should “be divided among the creditors of the company — that it was “resold, some to John G. Moore for six hundred dollars. And “William T. Pelton gave an order on a partner of the witness for “$2,200 with the witness’ name on it which he had to pay and “did pay March 8, 1879, and the amount paid was $3,148.10.
    '3. There was error in admitting the following offer of evidence on the part of the plaintiff:
    “Also for the purpose of fixing of the parties unless it is admitted, the record of the suit of the Bickels against Doctor Filbert. The question was whether it was brought by one of the Bickels or both. And I offer, for the purpose of fixing the title of the case, so much of the record as relates thereto. I offer that record for the purpose of showing that the suit was brought in the name of J. F. Bickel, and was subsequently amended by adding the name of John M. Bickel.
    4. There was error in admitting the following offer of evidence : ...
    Plaintiff offers to prove that judgment for $1,060.37 was obtained upon a note in favor of Barker Bros. & Gardiner, a firm of which the witness (Barker) was a member ; that the judgment was not paid ; that in 1876 this witness (Barker), in behalf of his firm, was induced to accept the sum of $100 for the entire amount of the said judgment upon an allegation that the judgment was only good for purposes of an off-set to some claims held by the company against somebody whose name-was not mentioned ; that the witness (Barker), in behalf of said firm, did so part with said judgment for the sum of $100, in December, 1876. Then by the record it is offered to prove that the judgment -was marked to the use of J. F. Bickel, one of the defendants ; that afterwards it was attempted by those defendants to apply the sum of $450.99, proceeds-of a sale of a lot on Diamond street, upon this judgment, dating the entry upon the cash book to November 23,1874; that an attachment was issued upon said judgment.
    The witness Barker then went on and testified in substance: “I was a member of the firm of Barker Bros.. & Gardiner; that “firm had a note against the Philadelphia Wood Paving Com“pany that came due February 10,1 think in 1872, it matured “about that time ; it was not paid ; it was put into judgment in “this city. [Here plaintiffs’ counsel offered in evidence the record (docket entries) of said judgment showing a judgment obtained March 23, 1872, by Barker Bros. & Gardiner vs. The Philadelphia Wood Paving Company, to March Term, 1872, No. 330, for $1,060.37 by order of plaintiffs’ attorney (D. W. Sellers, Esq.), marked to the use of J. F. Bickel, December 13,1876, and' attachment, sur judgment thereon, issued May 16, 1877, William M. Bickel and John F. Bickel, garnishees, and, after making the offer of letters, the ruling on which is assigned for error in the fifth specification, the witness Barker further testified :
    “This judgment was not paid; $100 was paid me for the “transfer of this judgment; December 13, 1876,1 received $100 “besides the counsel fee of $10.75 , $100 net was what I received; “I got the money by mail; it was started from Philadelphia on “the thirteenth day of December, 1876, I received it in New “York on the 14th of December, 1876.”
    5. There was error in admitting in evidence the letters written by Mr. D. W. Sellers to the witness Barker and -by the witness to Mr. Sellers in connection with the sale of the judgment — so far as to show what the judgment was sold for. -
    6. The Court erred in allowing plaintiff’s counsel to question, on cross-examination, defendants’ witness John F.. Bickel, as to how much money the witness had received on the draft for $2,200, there having been no examination in reference thereto in chief.
    7. There was error in refusing to allow the defendants to prove by the witness J. C. Bickel, what was Doctor Filbert’s valuation of the royalty for the use of The Alexander Miller Improved Pavement Patent, per square yard, in 1872, 1873 or 1874, or thereabouts.
    8. There was error in refusing to allow the defendants to prove by the witness, J. C. Bickel, that Doctor Filbert, a director of • the company had in 1872 or 1873, offered the witness the right to use the patent of The Alexander Miller Improved Wood Pavement for a. consideration as a royalty; and to state the amount of royalty demanded.
    9. There was error in allowing the plaintiff’s counsel to ask John F. Bickel, re-called for further cross-examination the following question:
    
      Question — Did you tell Messrs. Wylie and Smith, at any time that you owned The Alexander Miller Improved Wood Pavement, or the right to it for the city of Philadelphia ?
    10. The Court erred in allowing plaintiff’s counsel to ask his witness, John S. B. Nagle (called in rebuttal) whether he, the witness, had attended a meeting of the Philadelphia Wood Paving Company at any time during 1875.
    11. The Court erred in allowing to the plaintiffs the following question put to the witness named in the preceding specification:
    
      Q. “Did you send a notice, dated June 1, 1875, to attend a meeting of the Philadelphia Wood Paving Company on or about the first day of June, 1875, to John M. Bickel ?”
    
      A. I did ; I made out this notice and sent it to John M. Bickel; I mailed it.
    12. It was an error in the Court to iute'rrupt the cross-examination by defendants’ counsel of the defendants’ witness, L. 8. Filbert, by the following remark and question:
    (By the Court to the witness.)
    It has been stated here by John M. Bickel, that you, though a director of the company, had deliberately interfered and, to use a common expression, had log-rolled to put another and different' pavement on the bridge. Is- this true ?
    
      A. That is true, and I want to give my reasons why I did so; after we had the meeting, I notified Mr. John M. Bickel in regard to the paving on this bridge; and after John M. Bickel refused to have anything to do with us in regard to the paving of this bridge; when he ruled us all out, I went in for' all the paving and got all I could.
    
      A. B. Shearer and George Junkin, Esqs., for plaintiff in error
    cited, Penna. R. R. Co. vs. Bock, 9 W. N. C. 281, as to the third error. As to the fourth error, they argued that, the effect of the testimony was to show a fraud upon Barker Bros., which was irrelevant in this case. As to the fifth error, the letters were passed between, parties who are unconnected with this case. As to the sixth error they cited, Hopkinson vs. Leeds, 78 Pa. 396; Malone vs. Dougherty, 79 Pa. 46; Ellmaker vs. Buckley, 16 S. & R. 77. As to ninth error, the words “at any time” in the question might refer to a time after the work was done, and then could not be evidence; Clinton vs. Estes, 20 N. Y. 216; State vs. Ross, 29 Mo. 32; Regina vs. Blake, 6 Q. B. 140. As to the tenth a,nd eleventh errors, they argued that the alleged meeting was not called according to the by-laws of the Co., and the testimony as to it and the notice, was irrelevant and immaterial.
    W. H. Smith, Esq., contra
    
    cited as to the law of conspiracy; Burns vs. McCabe, 72 Pa. 309; Confer vs. McNeal, 74 Pa. 112; Gibbs vs. Neely, 7 Watts 305; Rogers vs. Hall, 4 Watts 359; Peterson us. Speer, 29 Pa. 479; Kimmell vs. Geeting, 2 Gr. 125; Lincoln vs. Claflin, 7 Wallace 132; State vs. Buchaunan, 5 Har & Johnson 317; Kelsey vs. Murphy, 26 Pa. 78; Kimmell vs. Stoner, 18 Pa. 156; Mott vs. Danforth, 6 Watts 304; Penrod vs. Morrison, 2 P. & W. 126; Hinchman vs. Richie Brightly N. P. 143; Commonwealth vs. Tack, 1 Brewster 511; Gilbert vs. Hoffman, 2 Watts 66; Smull vs. Jones, 1 W. & S. 138; Oliver vs. Piatt, 3 Howard 401. Directors of a corporation. must not let their private interests interfere with the djities they owe to the corporation; Eshleman vs. Lewis, 49 Pa. 410; Norris’ Appeal, 71 Pa. 106.
   The Supreme Court affirmed the judgment of the Common Pleas on Feb. 28, 1881, in the following opinion, per:

Gordon, J.

This was an action on the case brought against John M. and John F. Bickel for the recovery of dam igos alleged to have resulted from a fraudulent combination, by them to defraud the plaintiff of its moneys and other property. From the evidence, from the charge of the Court, and the statements of counsel, what the plaintiff undertook to establish, and did, in whole or In part, establish to the satisfaction of the jury, may be summarized as follows: That John M. Bickel, who was the president •of the company, received the purchase money of a certain lot of ground, belonging to the company, and fraudulently disposed of It to his own use, and that of his sou, John M. Nickel. That the defendants fraudulently appropriated to a like use the proceeds of a contract for the right to use, on the Callowhill street bridge, the “Alexander Miller Wood Pavement.” In addition to these charges, we have a detail by Dr. Filbert of an arrangement between the Biekels aiid certain creditors by which their several claims were consolidated into two judgments, known as the “Bickel judgments.” Further, that the parties afterwards Agreed that the personal property should be sold on a fi. fa., and If it should not bring its full value, it was to be bid in by one of the creditors, and upon resale, the proceeds were to be applied in satisfaction of the judgments. That thg property was so bidin by John M. Bickel, and afterwards by him resold at a large advance, but the money thus realized was not credited on the judgments. Again we have the purchase by the defendants or ■one of them, of a judgment against the plaintiff in the sum of $1,060 known as the “Barker judgment,” for about one hundred dollars, and which was marked to the use of John F. Bickel, the son: the charge of $450 of this in the cash book, and an attachment, presumably for the balance on themselves. In addition to this, in the same cash book, appear entries of the payment of the two Bickel judgments in full. From this condensed history -of the case it is very obvious that a good deal of explanation, as -well as denial was required in order to make their conduct look even passably honest. If, indeed there was a willful concealmont of tlie $5,500, raised from the sale of the lots; or if that money was applied to judgments already paid by the previous sale of the personal property, there was a gross fraud per- • petrated upon the company. So, if the Barker judgment was p irehased, in the maimer detailed, for the joint benefit of the president, John M. Bickel, and his son, any attempt to collect the whole of it from the company, was in like manner fraudulent ; Hill vs. Frazier, 22 Pa. 320. There is therefore, enough in this case, without reference to the alleged fraudulent conduct of the defendants in the matter of the paving contract, to justify the charge of the Court and the verdict of the jury.

¥e next turn our attention to the specifications of error. All these are without merit. The first, because there is a negative answer to the question to which exception' was taken, hence no" harm -was done. The second, because it -was part of the plaintiff’s case to show how the Bickel judgments were made up, and also, the agreement of the creditors, therein interested, as to the application of the proceeds, of the sale of personal property. lhe third, because the style of the Filbert judgment showed that both the defendants were interested in the resale of the personal l roperty. The fourth is good for nothing, inasmuch as it takes exception to the Barker judgment, already referred to in detail, and which was properly admitted. The fifth, for the reason that the Sellers’ letters were ’admitted, in connection with Barker’s testimony, for the sole and only purpose of proving the price paid for the judgment. Even admitting that the admission of these letters for this purpose was wrong, yet as the fact was proved both by Barker and Bickel, the error was harmless. Neither can the sixth assignment be sustained, for the allowing of new matter to be brought out on cross-examination, is a subject addressing itself to the sound discretion of the Court, hence not reviewable ; Jackson vs. Litch, 62 Pa. 451. At most, however, this was a mere question of time, for, as the witness being examined was a party to the suit, under the second section of the Act of April 15th, 1869, P. Laws. 30, the plaintiff could have recalled him for cross-examination, hence the defendant would have gained nothing by having the examination deferred. The seventh, eighth and ninth are passed as containing nothing worthy of special notice. ■ The tenth anl eleventh are also without merit. It was proper to prove a meeting of the company in the year 1875, and, that of this John M. Bickel liad notice. That the notice was informal was of no consequence ; opportunity was afforded him of attending the meeting had he seen fit to do so, and this was all he- had a right to require. The twelfth assignment we pass with the remark, that if attorneys suppose a Court has no right to interpose, and put orderly questions to a witness, during his- examination, either for its own information, the advancement of justice, or, as in this case, to give the witness an opportunity for explanation, they are very much mistaken. The question put by the Court afforded the witness an opportunity for explanation and self justification, and was altogether proper.

Judgment affirmed..  