
    BAKER SILVER MINING COMPANY VS. STEININGER.
    Where a note given to a oompany in payment for stock is forwarded to an Attorney for collection, and the debtor renews the note under an agreement that if the stock proves worthless inside of a year, he can return it, and get his note, snch agreement is binding on the company.
    Error to Common Pleas of Lehigh County. No. 178, January Term, 1880.
    The Charge of the Court was as follows per
    Hagenman, P. J.
    Gentlemen oe the Jury: — This action is brought by John Weist, Treasurer of the Baker Silver Mining Co. against George Steininger to recover the sum of $200 on the following note :
    
      Allentown, Pa., February 10, 1874.
    “On the 1st day of January next ensuing the date hereof, “I promise to pay John Weist, Treasurer of the Baker Silver “Mining Company, or order, the sum of Two Hundred Dollars, with interest from date, without defalcation, for value “received.”
    The plaintiff gave this note in evidence, and then rested his case. Nothing further appearing, the plaintiff would be entitled to a verdict.
    The defendant, however, has offered a considerable amount of evidence, and from that we learn that there was a mining company of this name, and that this note was given for some shares of stock that were issued by the Company. It appears that in 1868, Mr. Steininger had purchased first, six shares of stock for which he paid $600., and then again, subsequently he purchased four shares of stock, according to his testimony, and to his present recollection he gave $200 in cash, and gave a note for $200. That note was not paid at maturity. It was placed in the hands of an attorney by the name of Mr. Wyckoff, who pressed Mr. Steininger for payment. Mr. Steininger called at his office and through some arrangement made between them, the note, which had been given in 1868, was delivered up and this note given in its place. [The suit is brought on this note, and the statement filed by the plaintiff seeks to recover on this note, and not upon the note given in 1868.
    At this point I may as well answer the legal propositions that have been submitted. The plaintiff having brought his suit upon this note, his recovery must be upon this note. Whether the attorney had a right to give up the other note and take this in its place, we say to you is a question we are not called upon exactly to rule in this case; for the suit being brought upon this note the recovery must be upon it. The pleadings do not raise the question as to whether the attorney had a right to give up the note of 1868 or not, and we charge that so far as the note in suit is concerned recovery must be had upon it without regard to that of 1868.]
    
      ! What took place when this note was given? What agreement wTas made ? I will turn to the testimony of Mr. Steininger, and it is upon that testimony, gentlemen, that this question is eventually to turn when once you come to pass upon it. The jury will recollect that Mr. Wyckoff had this note in his possession, and Steininger went there upon invitation of Mr. Wyckoff to consult about the note of 1868, and there was considerable evidence given in regard to that, and as they got' along with the testimony, this question was put to Mr: Steininger : “What did Mr. Wyckoff say about the old note, for “what it was given at the time the note in suit was given? “Answer. — I showed Mr. Wyckoff the shares for which the old “note was given, and when this note was given I wanted to “throw up or give up the four shares to Wyckoff, but he said “ No’; that he would make me another note, payable in one “year, and if nothing would come out of the shares he would “take them. I told Wyckoff how many shares of stock I had “in this company. I said I had taken six shares at one time,’ “and had paid cash for them. I said I had another four “shares, and for two of the shares I paid cash and for the other “two shares I gave a note for $200, which was the note that “Mr. Wyckoff then had; I then gave the note in suit in “place of the other.” The jury will consider from this what was the agreement between the parties at the time this note was given. Had Mr. Steininger under this testimony at the end of the year, if nothing came out of this stock, a right to go there and surrender up the four shares of stock, and receive back his note ? Mr. Steininger says that at the end of the year or about there, he went to Mr. Wyckoff’s office, and he then gave up the four shares of stock to Mr. Wyckoff, who said that he would send them to Philadelphia to see whether they would be accepted or not. He retained the note — did not give it up. He never received the note back, and Mr. Steiningetf says that Mr. Wyckoff had said to him that he had never received any information from Philadelphia in regard to it. Steininger further says that Mr. Wyckoff did take back these shares.
    
      [Whether Mr. Wyckoff accepted these shares or not, it is for the jury to say under this testimony whether it was agreed between the parties that if nothing came out of this stock he had the right to surrender those shares of stock; and if the jury find that this Company at the end of the first year, after this note was given, was insolvent, and the shares were worthless so that nothing came out of them, and that that was the agreement between the parties, then Steininger had the right to go to Mr. Wyckoff and surrender those shares of stock to him, and even if Mr. Wyckoff did not agree to accept them, still Mr. Steininger, having complied with the terms of that contract, would be excused from the payment of this note. The whole question turns upon that point. Was it agreed that this note should be surrendered at the end of the year, if nothing came out of the stock ? Had Mr. Steininger the right to surrender this stock, and did he go there and offer to surrender up this stock? If the jury find that such was the agreement, and that he went there and did tender that stock and put it into the hands of Mr. Wyckoff, there can be no recovery.] On the other hand, if the jury find there was no such .agreement as that, the plaintiff is entitled to a verdict for the .amount of this note, with interest from the time you find the first interest due up to the present time.
    Verdict for defendant. The Mining Company then took this writ of error assigning the admission of evidence of what took place when the parties were in Wyckoff’s office, and the representations made when the stock was sold to Steininger, and the portions of charge in brackets, as errors. There had also been evidence that the company had executed a mortgage about 1869, which had been foreclosed, and the property sold, and it had also been sold for taxes.
    C. J. Erdman, Esq.,
    for plaintiff in error, argued that Wyckoff had been employed merely as an attorney to collect the note, which was valid, and had no authority to take a new note with such a condition ; Barrett vs. Third Avenue, 45 N. Y. 628; Beers vs. Hendrickson, 45 N. Y. 665; Benedict vs. Smith, 10 Paige 126; Madaux vs. Revan, 39 Maryland 485; East River Bank vs. Kennedy, 9 Bosworth 543; Dollar Savings Bank vs. Robb, 4 Brewster 106; Campbell’s Appeal,. 29 Pa. 401; Fassit vs. Middleton, 47 Pa. 214; Naglee vs. Ingersoll, 7 Pa. 185; Tompkins vs. Woodford, 1 Pa. 156. There was no implied ratification by the company of the agreement alleged to have been made with Wyckoff; Mundorf vs. Wickersham, 63 Pa. 87 ; Smith vs. Tracey, 36 N. Y. 79 ; Silvis vs. Ely, 3 W. & S. 420.
    Messrs. John D. Stiles & Son, contra,
    argued that the agrément with Wyckoff, followed by the delivery of the stock to him and the silence of the company for four years, was .a good defence. The agreement made bona fide with Wyckoff was binding upon the company; Priestwick vs. Poley, 18 Common Bench 806; Wood vs. Wenham, 21 Weekly Rep. 104; Chown vs. Parrot, 14 Com. B. 74; Brady vs. Curran, 2 Irish Com. L. Series 314.; Cox vs. Nicholas, 2 Yeates 546; Somers vs. Balabrega, 1 Dallas 164; Silvis vs. Ely, 3 W. & S. 436; Bonsall’s Appeal, 1 Rawle 267; Lynch vs. Commonwealth, 16 S. R. 368; Huston vs. Mitchell, 14 S. R. 307; Lenox vs. McCall, 3 S. & R 96; Pier vs. McKinney, 2 Watts 104.
   The Supreme Court affirmed the judgment of the Common Pleas on March 21st, 1882, in the following opinion :

Per Curiam :

If the old note was given up and the note in suit given and accepted, whatever was the agreement or condition upon which the new note was given was binding upon the plaintiff. It was an unequivocal affirmation of the contract, and he cannot now contravene the authority of his attorney to make such a contract; Mundorff vs. Wickersham, 63 Pa. 87, is a case directly in point.

Judgment Affirmed.  