Basshor v. Forbes

Alvey, J., deliyered the opinion of the Court. The question as to the admissibility of the parol evidence offered by the defendant in the Court below, and which was ■objected to at the time by the plaintiffs, but admitted by the Court subject to exception, is not before this Court for review, ■inasmuch as the Court was not at any subsequent stage of the trial invoked to exclude such evidence, and exception taken to its refusal so to do. Whether the evidence was really admissible, the Court below does not appear to have definitively decided. All that was done by the Court was to allow the evidence to be given, subject to the exception of the plain ¹⁶⁵ tiffs, which might be insisted on at some later period in the course of the trial, when the question of the admissibility or inadmissibility of the evidence could be better understood than at the moment when offered.

This course is frequently pursued, in order to facilitate the trial, and as a means of more fully understanding the relation and bearing of the proffered evidence to and upon the issue involved, than can be well seen in the early progress and development of the cause. The practice in this respect is most generally regulated by rule of Court; bnt, in all such cases, if the party objecting to the evidence intends to insist upon his objection taken in the first instance, he should, before or at the close of the evidence, apply to the Court, either by motion or prayer, to exclude the evidence objected to, and thus have the question of the admissibility of the evidence definitively disposed of, and to the final ruling on this latter application the exception, if desired, should be taken. If this is not done, the benefit of the original objection cannot be availed of here, for the obvious reason that there has been no final decision of the question in the Court below; and the mere statement in the bill of exception that certain evidence was offered and objected to, but admitted subject to the objection, to be disposed of at a subsequent stage of the trial, does not by any means raise the question here as to the admissibility of such evidence. This proposition was, in effect, decided in the case of Coates & Glenn vs. Sangston, 5 Md., 121 .

Rut if the question of the admissibility of this evidence was properly before us, we could have no hesitation in declaring the evidence admissible for the purpose for which it was offered. It was not, as supposed by the learned counsel for the plaintiffs, liable to objection on the ground that it tended to contradict, add to, or vary the written contract between the plaintiffs and the Oakland Coal and Iron Company. It had reference to a collateral matter, and about which the contract was silent. The individual liability of the defendant as stockholder in the company is not provided for by the terms ¹⁶⁶ of the contract, but, if it exists at all, can only exist as a statutory incident to such contract, and as collateral to the obligation of the company.

The liability of the stockholder is, in one sense, founded in contract, it is true, but such liability is so far collateral to and independent of that of the corporation on the contract itself, that it may be waived or discharged without in any manner affecting or impairing the direct