
    Bend vs. The Susquehanna Bridge and Bank Company.
    Appeal from Baltimore county court. Assumpsit by the appellees, (the plaintiffs in the court below,) against the appéllant, (the-defendant in that court,) to recover the amount of three instalments of $5-each on 100 shares of stock in the company of the plaintiff's, alleged by them to belong to the defendant. The general issue was pleaded. At the trial below, the plaintiffs read in evidence the acts of assembly of 1808,ch: 111; 1812, ch. 143; 1814, ch. 66, and 1817", ch. 153. They then proved that more than two thousand shares of stock were subscribed, and that the company went regularly into operation; and that one Moses Poor subscribed in his Own ñamé for one hundred shares; that the president and directors for the time being, made calls in pursuance of the provisions of said acts of assembly for three instalments of five dollars pn each share, which calls were complied with by Poor; that afterwards, on the 21st of September, in the year 1816, Poor, by power of attorney, duly constituted Samuel Clendenen bis attorney, to transfer the said one hundred shares of stock to one John II. Poor, and that Clendenen did, on the 3d of October, 1816, in pursuance of said power, duly tránsfer the said stock to J. H. Poor, on the books of said bank, according- to law; that afterwards, on the 30th November 1816, J. II. Poor, by power of attorney, authorised Clendenen, as his attorney, to transfer the said one hundred shares of stock to the defendant, with the consent of the defendant; and that on the tenth day of December 1816, Clendenen, in pursuance of said last power, executed the following assignment of said stock on •¿he books of said bank.
    
      ■Where the execution of a power of attorney was stated to be by 6\7. II. Pi by my. attorney S, C,” transferrins: to W. JB certain shares of stock, and signed and sealed by S C and under written “Atty. for WHeld, that it was executed so as to transfer the Stock to JV B .
    If the habendunx in a deed of bargain and sale is to the grantor^ it shall be rejected, and the use enure to the grantee
    In a charter creating a corporation* subscriptions were authorised for raisin? the capital stock, to he paid by instalments* and when a certain amount Was subscribed, the proprietors of'shares, either as subscribers or assignees of such subscribers, were ereited a body politic, if. i\ who was a*subscriber, assigned his stock to WB before the whole of th“ inst ilments were paid.— Held, that there was such a privity between the corporation and IP B as enabled them to sustain an action of assumfi* ¿ft against him for theamuuitt of the instalments which had not been paid
    
      / Parol evidence is not admissible tri prove that an assignment of stock was intended as a mortgage* 'when upon its face it purported to be an absolute assignment
    
      “I, John II. Poor, by my attorney, Samuel Clendenen, do hereby transfer and make over unto William B. Bend, one hundred shares of stock held by me in the Susquehanna Bridge and Bank Company, Maryland, on which thirty per cent, has been paid, subject to the payment of the remaining seventy per cent, agreeably to the charter of incorporation.
    Witness the hand and seal of this 10th Dec. 1816.”
    
      Samuel Clendenen, (Seal.) Ait’y. for Wm. B. Bend”'
    
    This assignment was accepted by the defendant. Afterwards, the president and directors'of the company, for’ the time being, duly called for the three following instalments on said stock, of five dollars on each share, payable-as follows, viz. on the 1st of October-, 1818; on the 31st of December, in the same year, and on the 1st of April, 1819; and that due notice was-given of these calls, by publication in the newspapers, according to the provisioud ac*s assemb1^ aforesaid. The defendant then offered evidence to show that the said stock was trans- , . . ferred by John H. Poor to him, by way of mortgage,' to secure a debt antecedently due by the said Poor to him; to the admission of this proof, the plaintiffs objected, and the Court sustained the objection: Hie defendant then, praycd the court to direct the jury, that the plaintiffs were not entitled to recover, which direction the court, [Ward A. J.] refused to give: The defendant excepted, and appealed to this' court:
    The causé was argued before Éuciíanan, Earle; and Stephen, J.
    
      R. Johnson, for the Appellant,
    contended, 1. That theft 'was rio privity between the plaintiffs- and the defendant to support the action of indebitatus assumpsit.
    
    2. That the assignment to the defendant by Clcndencn-, as attorney for J. JL Poor, was not properly made.
    3. That the evidence offered' by the défendant ought to have been received;
    On the first point he referred to Allstan’s adm’r. vs. Contee’s Ex’r. in this court; at June term 1818. 6 Bac. Ab. 383, 384. 2 Mod. 57: The act of 1817, ch. 153, s. 6. Spencer’s case, 5 Coke, 17, (3d Resol.) 1 Esp. Dig. 105, (202,) 106; (203.)
    On, the second point, to Harper vs. Hampton, 1 Harr. & Johns. 708. Frontín vs. Small, 1 Stra. 705. 2 Ld. Raym. 1418. Comb’s case, 9 Coke, 76. Smith’s Lessee vs. Perry, 1 Harr. & Johns. 706, (note;) and White vs. Cuyler, 6 T. R. 176.
    On the third point, to 2 Com. Dig. 530. Pawling vs. The United States, 4 Cranch, 219. Shermer vs. Beale, 1 Wash. 15. Champlin vs. Butler, 18. Johns. Rep. 169. Straton vs. Rastall, 2 T. R. 366. Harris vs. Johnston, 3 Cranch, 311. The Maryland Insurance Company vs. Reeden, & Cranch, 338. Norwood vs. Norwood, in this court at December term 1807. The Marine Bank vs. Byus, in this court at June term 1818. Eaton vs. Jacques, 2 Doug. 455. White vs. Cuyler, 6 T. R. 176.
    
      Murray, for the Appellees,
    on the first point referred to fíié acts of 1812, ch. 143, s. 4; 1814, ch. 66, s. 4, 17; and 1817, ch. 153. The Huddersfield Canal Company vs. Buckley, 7 T. R. 36.
    On the second point, to Howell vs. M‘Ivers, 4 T. R. 690. Comb’s case, 9 Coke, 76. Wilks vs. Back, 2 East, 142. 1 Phill. Evid. 416. Shep. Touch. 59. Lightfoot vs. Tenant, 1 Bos. & Pull. 557.
    
    On the third point, to Lucas vs. Comerford, 1 Ves. jr. 235. Williams vs. Bosanquit, 1 Brod. & Bring. 262. 2 Bac. Ab. tit. Covenant, (E 3,) 72.
   The opinion of the court was delivered by.

Buciianav, J.

The action was brought to recover the, amount of three instalments, of live dollars each, on one hundred shares of stock in the Susquehanna Bridge and. Bank Company, alleged by the plaintiffs to belong to the defendant. Moses Poor subscribed ip his own name for the stock in question, and afterwards duly appointed Samuel Clendenen, his attorney, to transfer it to John JJ. Poor; in pursuance, of which power, Samuel Clendenen did, on the 3d of October, in, the year 1816, transfer the said Stock, on the bank, to John H, Poor, according to the provisions of the charter. Op the 3f)th of November 1816, John H. Poor regularly constituted, Samuel Clendenen his attorney, to transfer the said one hundred shares of stock to the defendant, with his knowledge and consent; and on the 10th of December 1816, Samuel Clendenen made an. assignment of the stock, on the books of the bank,, to the, defendant, in these words: “1 John II. Poor, by my attorney, Samuel Clendenen, do hereby transfer and make over, unto William, B. Bend, one hundred shares of stock held by me in the Susquehanna Bridge and Bank Companyt Maryland, on which thirty per cent, has been paid, subject to the payment of the remaining seventy per cent, agreeably to the charter of incorporation;” — which is signed and Sealed by Samuel Clendenen, and underwritten “Att’y. for Wm. B. Bead. ” The charter authorises the transfer of stock at the bank by any holder, either in person or by attorney; and the first question raised in the discussion of the cause, is, whether the power given by John II. Poor to, Samuel Clendenen, was so executed as to transfer the stock in question to the defendant? Of which we have no doubt. It is very certain, that in point of law the act done under a power of attorney, must be the act of the principal, and not of the attorney, otherwise it cannot have the effect to bind the. principal, and here the act done,' that is, the assienment and transfer of the stock, is emphatically the act of John H. Poor: It expressly purports, upon the face of it, to be a transfer of John H: Poor, by his attorney,” Samuel Clendenen, and being so expressed in the body of the instrument, it was sufficient for Clendenen to sign and seal it, without any addition Of the character in which he acted, that character being before distinctly set out; and as the assignment is clearly expressed, and manifestly appears to be .the act of the principal, John II. Poor, through the agency of tiis attorney, Samuel Clendenen, the superaddilion of fhe words, “Att’y. for if rn. B. Bend,” cannot have the effect tci defeat it; but being repugnant to the whole context, must be rejected, on the same principle, that where the habendum in a deed of bargain and sale is to the grantor, it shall be rejected, and the’use enure' to"the grantee; or it may be, that Samuel Clendenen was' as well, the agent in that transaction of William B.Bend, as attorney for John II. Poo?', and that he placed thé word si{<Att’y. for Vim. B. Bend,” under his signature, to. denote that agency. That he could not have been the attorney of Bend, for the purpose of making the transfer, is most manifest, he being the party receiving, and not'the party making the assignment; ánd it is not'easy to suppose that Clendek’en, in adding the Words “Att’y. for 'Wm.:B. Bend,” ' intended to deny his agency for Jolin II. Poor, which he had before so distinctly affirmed. "It was, therefore, either ¿n ¿Ct'of mere inadvertency, or it was done to show the double ‘'capacity in which he may "have acted; and in neither cáse does it vitiate the assignment, but is wholly inoperative.' It'is enough • that the transfer Was made in the name of John H.' Poor, and that insufficiently appears..'to be his act;' through the-agency of his attorhey, for which no particular form of words is'required tó be used. ‘ '

As to the question, whether there is such a privity between the plaintiffs*‘and the' defendant, as to enable the plaintiffs to sustain ‘an áction of'assumpsit against the defendant' for the''amount Of the instalments, which form the subject of the Suit, there can be' no doubt. The transfer of stock by the holders; is authorised by the charter; and by'the assignment, the assignees are1 substituted in the places of the’ original subscribers, and hold the shares on the same conditions, and are subject to the same rules find orders. The calls for the instalments in question were wade by the plaintiffs in pursuance of the provisions of the charter, and after the transfer by John 11. Poor to the defendant; and the charter authorising transfers of stock, and declaring all “who way become the actual proprietors of shares in the capital stock, either as subscribers for the same, or as the legal representatives, successors, or assignees of such subscribers,” to be a body politic and corporate, necessarily creates a privity, and raises an assumpsit on the pari of such as choose to become stockholders, by accepting transfers to pay all such calls as may bo regularly made, on which an action will properly lie. Moreover, by the very terms of the assignment, the defendant took the stock, subject io the payment of the whole amount that was theta unpaid; and it is so objection to say, that such a construction of the charter would be injurious to the bank, on the ground that it would thereby lose its remedy against the original stockholders, seeing that the charter has provided an abundant security against loss, by creating adequate forfeitures for nonpayment of the instalments called for, and prohibiting any transfers by stockholders indebted to the bank, until suchdebtsshallbe paid. In support of the position, that the defendant is answerable in an action of assumpsit for the amount of the calls wade, since he received a transfer of the stock, if indeed such a position needs any support, see the case of The Huddersfield Canal Company vs. Buckley, 7 Term Rep. 36, which is directly in point. '

At the trial of the case below, the defendant offered evidence to prove, that the assignment of the stock in question was not intended as as absolute transfer, but as a mortgage to secure a débt due. to Kim from John II. Poor, which was rejected by the court; and it is urged here in argument, that the testimony ought to have been admitted; which presents the constantly returning question, whether parol evidence is admissible to contradict a w ritten instrument? Assuming different shapes, and varying with the various transactions between man and man, and each claiming to be an exception from the general rule, “that parol evidence cannot be admitted to contradict, add to, or vary the terms of a will, deed, or other written instrument.” .It is not necessary to inquire» how far the liability of the defendant to an action of- assumpsit for the, amount of the instalments claimed in this suit, would be affected by the fact, if true, th^t he holds the stock only as a mortgagor, if the, evidence offered to-establish that fact was properly rejected; and we think that it was clearly inadmissible, being offered by. an immediate, party to a sealed instrument, to contradict-and change the 'terms of it, for the purpose of defeating rights claimed, and growing out of that very instrument alone, with nothing to take it out of the operation of the general rule -of evidence, but in direct violation pf it.

JUDGMENT. ¿EÍTRMED.  