TAUSSIG
V.
GLENN.
409
TAUSSIG lit al. v. GLENN. GLENN 21.
TAUSSIG lit ale
(Circwtt Court Of .Appeals, Efahth. O£rcu1.t. June 18, 1802.)
Nos. 71, 72.
1.
The name Tanssing, Livingston & Co. is not idem sonans with Taussig, Livingston & Co., and the entry of the former on the stock books of a corporation, in the handwriting of its treasurer, is not competent evidence that the latter firm, or any of its members, are stockholders or subscribers to the stock of tbe corporation, when unsupported by any evidence tending to identify the name with the firm, especially after the lapse of 25 years and the death of the members of the firm. I. 8llI:lll. A draft drawn by the treasurer of the corporation on the firm of Taussig, Livingston & Co. about the time of the alleged subscription, but which did not correspond in date with any reqUisition entered in the subscription account, could have, no tendency to identify the firm as haVing made the subscription, when there was no evidence that the draft had ever been called to its attention.
COBl'OBUIONS-STOCX-ACTIONS Foa ASSESSMENTB-EVIDENOB 01' SUBSCBIl'TIONSTOCK LEDGER.
S.
SAME-BEST AND SECONDARY EVIDENCE.
In an action against the executors of a deceased member of a firm to recover an assessment on the stock of a corporation, the complaint alleged that the. firm Bubsoribed and agreed to pay for the stock, and thereby became stockholders. Defendants specifically denied each of thesenllegations. HeUL that, as the issue was as to the fact of subscription, the best evidence was the written subscription itself, and, until it was produoed or accounted for, the stock ledger of the corporation was inadmissible.
.. CAusms OJ!' ACTION-RECOVEBY.
The action being brought solely upon the written contraot of subscription, a recovery must be bad upon that instrument or not at all; for suit oannot be brought on one cause of action, and a recovery had upon another.
In Error to the Circuit Court of the United States for the Eastern Judicial District of Missouri. ' Action by John Glenn, trustee of the National Express & Transportation Company, against John J. Taussig and George W. Taussig, executors of Charles Taussig, and Jane Taussig, executrix of Morris Taussig, to recover an assessment on the stock of said corporation. Judgment for plaintiff, allowing interest from the date of the suit. Both parties bring error. Reversed. For former report, see 47 Fed. Rep. 472. George W.' Taussig, for plaintiffs in error, Taussig and others. Thmnas K. Skinker, for defendant in error, Glenn, Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge. SANBORN, Circuit Judge. These two cases are brought, to this court upon writs of error to reverse the same judgment. The defendant in ,error, John Glenn, was the plaintiff below, and the other parties were defendants, and in this opinion will be so designated. The plaintiff,
FEDEIrXLREPORTER.
vol. 51.
10hn Glenn, as trustee of. the ;National Express ,& Transportation Company, a corporation, 'su1.tr!ib."the coutt below against Charles Taussig and Morris Taussig to recover alleged unpaid subscriptions of the copartnership of Taussig, :Livingston, & Co., which was composed of Charles Taussig, Morris Taussig, and J. H. Livingston, to the capital stock of ther.:corplbration.· After the (}ommencement ot thea.ction Charles Taussig and Morris Taussig died, and John J. Taussig and George W. Taussig, executors of Charles Tausaig,auu Jane Taussig, executrix of were, the trial., their deceased testators. After' 'statmg the cItizenshIp of the part,Ies and the names firln'iof. Taussig, Livingston,& Co., the his amendedpetiti()D: . 1'.1\I>.d tot' cause of action' that the defendants in their said fi rmname of the stock of the 'National Express and Transportation Company, a body corporate of the state ot under .tlle laws thereof pursuant t() an act 'of ofSl\id:state approved December 12. entitled 'An arid rjl-enactan. act toill'cOrporate the Southern Express Company;' passed March andto,incorpol'ate and Transportation Company;' and tberebyagl'eed to be liable to said company, andundt-,l'took and .to pay and every share so subscribed for by said.·dllfeadants, thesum,ofonehundl'ed dollars, in such Installments and Ilt s.uch'limes as sah! dl:'fendallt might be lawfully called :upon andrequfr'ed to accoJ;'ding to the effect of was so.lncorpotltted and said subscrip,the jaWs Wilder which tions to said stock made by said defendant, whereuy, and by force of said subAcription, said defendants became and were received and admitted as a stock;in said company, an'd[1uhdel'tooktosue and be sued, implead and be impleaded; contract with, in said corporate name, as to all mattl'rs touching and affecting the property, rights, imd obligations of said corporation. ".
r.
':j:
,:'
,;<
;
,':"
_;,,',
I
_.
,,:
.
"
·
.. no .WaI1-Y capitaIst9Ck of said company was made by Charles. or or .Morris Taussig, by ,a,t;l1,Qne lfl or WIth their as alleged; that 1865, Charles Ta,ussig, Morris Tam4slg, and J. H. LIvmgston were partners In bUSllless as 'Taussig. LiVingSton & ()o., at St. Louis, Mo.; that the sole purpose of said partnership was to buy and sell wool. hides, fur. and.beeswax; that it was no part of the business of said firm to subllcribe to the, capital stock of. Baid Transportation & Express. Qompany in Virginia or elseWhere; that no· Bub· scription was ever made by such a$ is. alleged in the amended petition; that :Qo such aUeged sUbsqfiption was within the purposes or scope of said partnership; and 'defendants deny that 'any partnership existed between Charles and Morris Taussig and J. H. Livingston, as alleged in said amended petition, for any of the purposes alleged in Baid petition."
·.. The
the judge without; a jurY.:l1nd, upon the th.e mad\'lby the foregoingaHegati'oris of the pleadings, 'the plaintiff,. he had introduced in evidence, without objection, an unpaid draft in the following words and figures:
V. GLE!'iN.
'
411
"BALTIMORE, August 10, 1866. "Ten days after sight pay to the order of the Bank of Commerce five hundred dollars, value recdved. and, to t,he account of assessment on capital stock. J. V. H. ALLEN, Treasurer Nat. Ex. & T. Co. "Taussig, Livingston & 00., St. Louis, Mo. [Indorsed:] "Taussig, Livingston & 00., 16 Sept., 1866: Pay Third Nat!. Bank of St. Louis ororder. C. H. CATHOART, Asst. Cash.,"
-offered in evidence a page of the st-QPk ledger of the corporation, of which the following is a copy: ' TANSSING. LIVINGSTON & co. ST. LOUIS. Date. To ,Wb'Olll Trans-1Certlf. Nnm· Requl. Trallll-lCertU. Num- Requl. Transfer Icate bel' of 8itlon Date. From Wbom fer Icate ber of 8alon No. Shares. Dra.wn. terred. No. Shares. Drawn No. Transferred. No. 1866.
Jnly 5
ApI. 13
Company.
775
100
1,000 500
To this the defendants duly objected, but the court admitted this evidence, and this ruling is assigned for error. There were other issues tried, and other assignments of error, but, in the view we take of this assignment, it is 110t necessary to notice them in arriving at a decision of this case, and they are considered and determined in Liggett v. Glenn, 51 Fed. Rep. 381, (decided at this term.) All the issues were found for the plaintiff by the court below, and judgment entered against the defendants for $10,489.36, to reverse which the defendants below sued out a writ of error in the case first above entitled. The plaintiff prayed the court to der.lare the law to be that he was entitled to interest on the calls for the unpaid subscriptions which were made by decrees of competent courts in Virginia in an action againstthe corporation based on a creditors' bill, from the respective dates of such decrees; but the court held he was entitled to interest from the commencement of the pending suit only, and to reverse this ruling he sued out his writ of error. This question is not material to the decision of this case, and has been considered and determined in the case of Liggett v. Glenn, supra, and will not be again noticed here. "Tanssing, Livingston & Co." is not idem sonans with "Taussig, Livingston & Co.," and an entry in the stock ledger of a corporation of the former name is not competent evidence that the latter firm, or. any of its members, were stockholders or subscribers to the stock of the corporation. 1J!IcOlaskey v. Barr,45 Fed. Rep. 151; King v. Shakespeare, 10 East, 83; WhitweU v. Bennett, 3 Bas. & P. 559; Chamberlain v. Blodgett, 96 Mo. 482, 10 S. W. Rep. 44; Brown v. State, 11 S. W. Rep. 1022; Skelton v. Sackett, 91 Mo. 377, 3 S. W. Rep. 874; Robson v. ThmnaB,55 Mo. 582; Brotherline v. Hammond, 69 Pa. St. 128; Troyer v. Wood, 96 Mo. 478, 10 S. W. Rep. 42; Whelen v. Weaver, 93 Mo. 430,6 S. W. Rep. 220; Parchman v. State, 2 Tex. App. 238; Neiderluck v. State, 21 Tex. App. 320; Atwood v. Landis, 22 Minn. 558. The rule that,
412
FEDERAL REPORTER,
"where ,the name of an . individual appears on the stock book of a corporation as a stockholder, the prima facie presumption is that he is the owner of the stock, ina case where there is nothing to rebut that presumption; and, in an action against him as a stockholder, the burden of proving that he not a or of rebutting that presumption, is cast upon the defendant." TurnbuU v. Payson, 95 U. S. 421, is an exception to two general rules of evidence, viz.: To the rule thata' party to a contract may not,unless authorized so to do by statute, in the absence of and without the knowledge of his adversary, manufac,ture written evidence of the contract in controversy which can be admittedin evidence to prove the contract without the oath of the writer or the admission or ratification of the opposing party, and to the rule that the} ,burden of proof>is on him who alleges the existence of a contract that is denied to prove some act or admission of hil;l adversary consenting to orratifying it. The general observ.ance of these rules is important to the protection of the property rights of every citizen,-how important is perhaps well illustrated in the case at bar. Here the representative of an insolvent corporation alleges that the firm of Taussig, Livingston & Co., of which the testators of defendants were members', subscribed to the stock of this corporation in 1866; and in allegatidn no written sUbscription of theirs is produced, none is proved,to have existed and to have been lost, no act or admission of any 'member of the old firm, which was dissolved nearly 20 years ago whoseinethbers are dead, is proved or attempted to be proved, and Jthe only evidence to support the allegation is this entry in the stock ledger of the corporation, and the fact that it is in the handAllen, who was once the treasurer of thecorporation, and writing of who is neither produced riqr: accounted for. The difficulty of rebutting the presumption arisin'g from such an entry after the lapse of 25 years, a.nd after the death of the alleged subscribers, is obvious, and admonishes us that the rule adopted by the supreme court of the United States, holding such entries competent evidence against those whose individual names appear as stockholders on the stock book of the corporation, ought not to be enlarged or extended beyond its terms. The great inconvenience of establishing, by production of the original subscription, contracts and assignments of stock, the relations of stockholders scattered throughout the nation to large corporations, together with the fact that the original certificates ofstock are presumptively in the possession of the stockholders, has undoubtedly had much influence in establishing this rule, and it should not be extended so far as to result, not only in greater inconvenience, but in injustice to those who are alleged to be stockholders. It should not be extended so far as to charge those as stockholders whose names do not appear on the stock book of the corporation, because other namestbat one might surmise were intended for, but are not, theirs, are found on the book. The draft of AugustlO, 1866, did not tend to prove that the corpo· ration referred to Tatlssig, Livingston & Co., by the account against Tanssing, Livingston & Co., because it did not correspond in date with
v.
413
any requisition entered in that account; moreover, therewas no evidence that this dmft was ever brought to the attention of Taussig, Livingston <to Co. in any way, so that it was without probative force against the defendants. The name of "'l'anssing, Livingston & Co." was not the name of the firm plaintiff sought to charge in this action; it was not idem sonans with that name; it was not spelled in the same way as was that name; and it was not in any way, by the evidence or testimony, identified or connected with that firm. Under these circumstances it was error to admit the entry upon the stock book under this name as evidence against the defendants. Moreover, when it was offered in evidence this entry in the stock book was not competent evidence under the pleadings. The plaintiff's aIlegatipn was that Taussig, Livlngston & Co. subscribed and agreed topay for this stock, and thereby became stockholders. The defendants denied that thatfirn1ever subscribed or agreed to pay for any such stock. The only issue here was whether or not Taussig, Livingston & Co. ever subscribed for this stock. Manifestly the beet evidence of this fact was the written subscription itBelf, and until this was produced,· or its absence accounted for, the stock ledger was, at best, but secondary evidence of the subscription, and was incompetent. The plaintiff cannot escape from this rule of evidence after pleading, as he did, the contract of subscription as the basis of his action, by virtue of which alone he alleged this firm became a stockholder, by putting the stock ledger in evidence on the trial to prove that the firm was once a stockholder. This action was based on the written contract of subscription, and nothing else; hence a recovery must be had upon that instrument or not at all. Suit can not be brought upon one cause of action and recovery had upon another. Olementv. Yeates, 69 Mo. 623; Stiev. Matthews, 75 Mo. 96, 100; Weilv. Posten, 77 Mo. 284, 287; Sumnerv. Rogers, 90 Mo. 324, 329, 2 S. W.. Rep. 476; CarBOn v. Cummings, 69 Mo. 325; Kemp v. Foster, 22 Mo. App. 643; Price v. Railroad Co., 40 Mo. App.189. The judgment below is reversed, and the cause remanded, with instructions to grant a new trial.
,:>F10:
EnHAltiD'1'; Collector j
tI.' !U'LJ..MAN,et
,a4:.
1., (!lU8'l'OM8 !DUTIBIl-AonolJs'1'Q ,RECOVEI{ , iml'prted certain buttQ\ls cOI1JPQsecJ brass and partly ofttn; the collector impbsell. a duty of 45 'per cent; lid valorem under the residuary 'oIn· · of theJIietal schedule (0) of the tari1f act'of 1883., sued for an aI11lg,e<1 the were dutiable tM <;lause of N\\l'hicbplaces a duty of 25 per cent. on buttons not specially ,enumerated, not 10eluding brass. gilt, or silk buttons. Plaintiffs introduced evidenpe tending to show ,buttons" bad a pommercial rqeaning, which inQlu!ied most, but not all. were known butto!ls'JIi&\ie of brass; that certain buttons made of as "gilt, ,Wttons;}' ana tbat,tbe button, ,bnp"rtea by, plaiJl,ti1fs were knowuas lJefendant gave evidence tending to,show that tbere was no ditrere1'leebetweetl the 'trade meaning and tbe popular meaning of "brass buttontl. ": He1.(l, tbat tbe court properly cbarged tbat, if the Put,tons in question were ; not. p\lllitQns, to the trade IDeaning, a verdict sbould be returned for plarntl1'fs; fordefendaDt. ' ,
9.
BAloIE-Evt1JENOE,-HARMLEss' Jj]RROR.
Defendllint ,baving intJ.'odllced witnesses wllo testified that the term "brass butbad nO pitrerent,J;lleaning in trade than in common parlance, the court permitted them 'on cross.exaIDination to be asked what theY understood the term to mean in commOn parlance. , ,Each answered that it mean't,buttons composed p,rincipally ;<If: Held, that, while the definition of terms no special meaningill a matter of law, tbistestimony was harmless, because the definition given by the witnesses was precisely that which the court would have ,given, and also becauselluiliury ",ere instructed to return a verdict for defendant unless the importatio'ns ,were 'not brass buttons 'according to the commeroial, meaning of the term. '
Error to the Circuit Court of the United States for the Southern District ofNewI¥ork. Actiou:by Louis Ullman and others against Joel B.Erhardt, us coll.ector of the port of New York, to recover duties paid under protest. Verdict and Ju.dgment for plaintiffs. Defendant brings error. Affirmed." " , EikoardMitchell, U. S. Atty., and Oharle8 DuciJn.e Baker, Asst. U. S. Atty.,. for plllintiffin error., Wm.Wickham Smtith,for defendant in error. Before WALLACE and SHIPMAN, Circuit Juuges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment of the circuit court for the plaintiffs, entered upon the verdict of a jury. The action was brought to recover duties alleged to have been illegally exacted by the defendant as collector of the port of New York upon importations of merchandise by the plaintiffs in 1888, consisting of metal buttons, composed partly of brass and partly of tin. The collector assessed a duty upon the merchandise as manufactures of metal under the clause of Schedule C of the tariff act of March 3, 1883, which reads as follows: "Manufactures, articles, or wares not specially enumerated or provided for in this act, composed wholly 01' in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any othpr metal, and whether partly or Wholly manufactured, 45 per centum ad valorem."