Regester v. Medcalf

Irving, J., delivered the opinion of the Court. The appellants, together with Edward L. Tunis and Alfred E. Hatch, appear by the record to have agreed among themselves to organize a hank under the Acts of Congress. Alfred E. Hatch was to he vice-president, and he, it is stated in evidence, was entrusted with the duty of making the preliminary arrangements for carrying out their plan. He entered into treaty with the ⁵³² appellee to become cashier of the banlc proposed to be formed.

The appellee was then, and had been for some time previously, bookkeeper in the Manufacturers’ National Bank of Baltimore, and avers in his narr. that he was induced to resign that position and accept the office of cashier in the new bank of áppellants at a fixed salary for a year. Being told his services were immediately required, he was induced to resign at once, and enter upon the discharge of such duties as were required of him in defendants’ employ. This he avers he did, and after serving them for less than a month, the organization was abandoned, and the appellee was discharged. He alleges the contract was broken, and sues for a year’s salary which he contends he was entitled to.

The defendants have pleaded that they never were indebted as alleged, and that they never promised as alleged. The defendants contended that they , never personally employed the plaintiff, or authorized any one to employ him; and that, although he may have been elected cashier, at a meeting of so-called directors, it was a conditional employment dependent entirely upon a finql and effective organization of the bank, which was ultimately abandoned, and thus worked the rightful discharge of the appellee. Alfred E. Hatch does not seem to have been sued, but there is no plea in abatement and no question arises on that account. Edward L. Tunis, one of the defendants below, has not appealed.

Why, can only be surmised. The other defendants below have appealed. The' questions for review arise wholly upon the rejection, by the Superior Court of Baltimore City, of the second, fourth and fifth prayers of the appellants. The second prayer of the appellants asked the Court to say, that if the appellants were found to have agreed with the appellee to employ him for a year, as cashier, when the bank was organized, at twelve hundred dollars ⁵³³ a, year, and that while in their service he made a false oath that' the capital stock had all been paid in, when, in fact, it had not been paid in, and it should be further found that afterwards the organization was abandoned, and the plaintiff (appellee) was dismissed from their service, then the dismissal was justifiable, and he was not entitled to recover.

The appellee contends that this prayer was properly rejected for want of evidence to support it, and the appellants insist that, as the record does not show that objection to have been made in the Court below, it can not be raised here. The fourth rule of this Court, which is invoked in support of this last contention, relates expressly and only, to granted prayers. This being a rejected prayer wo may, and ought to assume, in justice to the lower Court, that it was rejected on the ground that there was no sufficient evidence on which to rest it; for there certainly is none in the record certified to us. Unless the articles of association, together with the certificate of organization, had been filed with