Hepner v. Maybury

This -is an appeal by the. defendant from- a judgment, entered against him upon "a verdict, and from ian order denying his motion to set aside, the verdict, and for a new .trial. ,

This action was brought to¡ recover the sum of $250 and interest,- against this defendant, and Henry E, Marshall and Charles I. Bolles. . Marshall was not served with process, and Bolles defaulted. - - •

*263The plaintiff is the assignee of the claim of George W. Bryam, which arose out of the latter’s services in organizing a stock company. The defendant Maybury, in his answer, denied that Bryam rendered any services for him ¡or upon 'his employment. On the trial this defendant 'duly excepted to evidence offered by the plaintiff of conversation between Bryam and other defendants when Maybury was not present. The. learned trial justice allo wed such evidence on condition that Maybury should, subsequently, be connected with the conversation. After plaintiff rested this defendant moved to strike out the testimony in regard to the conversation with Marshall, testified to by°Bryam, on the. ground that they had not been connected in any way with this defendant, and to a denial of that motion his counsel duly excepted. And, subsequently, he duly moved to dismiss' the complaint and to¡ a ¡denial • of that motion he duly excepted. We think that both of these motions should have been granted. There is an absence of any proof, either connecting this defendant with the conversations with Marshall, testified to by Bryam, or establishing any personal liability of this defendant to the plaintiff’s assignor. The respondent seeks’to sustain the verdict either on the theory of this defendant having constituted Marshall his agent, of which we find.no legal evidence, or, on the theory of a subsequent ratification and acceptance by defendant of the services of the plaintiff’s assignor.

. This latter theory finds no support in the proofs. Only as an officer of the stock company and a subscriber to one share of its stock did this defendant accept the work of plaintiff’s assignor! in organizing the company; and there, is no evidence whatever that at that time he knew or was.informed that plaintiff’s assignor was expecting or claiming to 'hold him personally responsible. On the contrary he repudiated such personal responsibility when he Was first informed that plaintiff’s assignor claimed it against him, and that was long after the services had been performed and acted upon. It is a premise to the doctrine of .liability, arising out of ratification and acceptance, that the party to be charged must have been informed or have had reason to be aware that the services, which he accepts, are being charged against him, when they have been ordered by a person other than himself, and not connected' with him, so as to have become his agent. Such' a connection the evidence does not disclose between this defendant and either Marshall or Bolles.

*264If an acquaintance hires á vehicle and invites tme to ride with him, it is true that I participate in the benefits of the hiring, but I am not liable therefor unless I am previously.ima.de aware that the vehicle has been hired on the faith of my .credit, or unless my friend had some authority from me to hiré it.

“A promoter" is not "responsible for the. contracts of other promoters in, the absence'of evidence that he has authorized the.others to-contract for him or pledge his credit.” Taylor on Private Corpora: • tions, § 11. -.*»"• ' ■' ' • i

The judgment and order appealed-from should be reversed and 'a new trial granted, with costs to appellant to abide the event.

Pitzsimons, Ch. J., concurs.

Judgment .and order reversed, and new trial granted, with costs to appellant to abide event. .