McClure v. Peoples' Freight Railway Co. , 90 Pa. 269 ( 1879 )

Mr. Justice Trunkey

delivered the opinion of the court,

McClure’s covenant was to pay money on call. He proposed to prove an oral agreement that he might pay in materials and labor, without offering to show that ho attempted to ascertain when and where he could do so. When the call was made it was his business to pay according.to his contract, and, instead of that, he did nothing. Under the alleged oral agreement he may not have been bound to tender materials and labor, but the call was enough to put him on inquiry when and how they would be.received. The court was right in holding that if the offers set out in the first and second assignments were received, they would not amount to a defence. It is not admissible, to contradict or materially change a written contract, save for fraud, accident or mistake, of which no évidence was offered: Martin v. Berens, 17 P. F. Smith 459.

The third and fourth assignments raise the question whether the subscription, made after the agreement of consolidation and before it was filed in the office of the Secretary of the Commonwealth, is valid. It is claimed that this point is settled by Strasburg Railroad Co. v. Echternacht, 9 Harris 220, where the court say: “ A contract cannot be made by one person alone. It takes two to make a bargain. Before a promise becomes a binding obligation, it must not only be made to, but must be expressly or impliedly accepted by, the party for whose benefit it was meant. The paper before us is no more than a naked expression of the subscriber’s intention to purchase certain shares in the capital stock of a company which it -was expected would be incorporated by the legislature.” That legal proposition cannot be gainsaid, and the description of the paper, to wbich it was applied, is entirely accurate. Of course such a paper is worthless. Here is an actual subscription to the capital stock and a direct covenant to pay the Peoples’ Freight Railway Company $50, in instalments of $5 each, for each share of said stock. The deed recites that' the company is “ formed by consolidation together of The Sherman’s Yalley Railroad Company, the Bendersville Railroad Company, and the Bendersville Extension Railroad Company and the agreement for said consolidation had been executed on the 17th of .November 1873. Nothing remained to be done to authorize the company to act as a corporation, but to file the agreement in the office of the Secretary of the Commonwealth. That officer had no discretion to receive or reject; it was his duty to file the paper of record as soon as deposited. This consolidated company was not a new grant of corporate franchises, but another form for operating those which had been granted to the companies merged by their mutual agreement. To liken this to a case where there was no charter and could not be without legislation is a perversion. In this, the grant of rights and powers had been made; in that, they were to be procured. The corporate existence of this company depended solely upon the contracting parties; of that, upon future legislative grant.

It was to the capital stock of a company already formed by agreement of existing corporations, that the defendant subscribed. That agreement was filed in a few days thereafter, December 13th 1873, and then the company had legal existence and could act. It is not denied that the company accepted the subscription, made calls according to its terms, and that the first call was paid. The subscription was, at least, a valid proposition to the plaintiff which became irrevocable the instant of its acceptance. Whether, before the filing of the agreement for consolidation, the defendant could have recalled his subscription is not a point in the case.

Judgment affirmed.