Zihlman v. Cumberland Glass Co.

Miller, J., delivered the opinion of the Court. This is a suit by the appellant against the appellee, a body corporate, for breach of a sealed agreement between them, dated the 1st of January, 1886, by which the corporation agreed to pay to the plaintiff a certain royalty for the use of a patent which bad been granted to him for an improvement in the method of making tumblers and other articles of glassware. The royalty agreed to be paid was “one cent on each and every dozen of tumblers, or other glass articles cut, ground, smoothed, operated or finished by° means of said improvement Avhilst so used or operated” by the corporation. The case Avas tried before a jury, and the result was a verdict and judgment for the defendant, and the plaintiff has appealed.

Two exce])tions Avere taken by the plaintiff which involve the same question, vie., the admissibility in evidence of the sealed contract sued on. In the first, the plaintiff having offered evidence tending to sIioav the number of dozens of tumblers and other glass articles, the company had manufactured during the year 1889, by means of this patented improvement, then offered in evidence the contract in question, hut. upon objection by the defendant, the Court refused to alloAv it to be read to the jury. We think there is error in this ruling. The declaration sets out the substance of the agreement,, which,"on its face, purports to be signed and sealed by the plaintiff and to ³⁰⁷ hare affixed to it the corporate seal of the defendant.

It also purports to be signed and sealed by a number of other parties, who, according to the offer of proof in the subsequent exception, were, together with the plaintiff, the holders of all the stock of the company, and one of them was its secretary and treasurer and the custodian of its corporate seal. Now, it seems to us clear that upon the pleadings this contract was admissible in evidence without formal proof of its execution. So far as the record shows, no plea of non •est factum was interposed, and if there was such a plea it was withdrawn before the trial, and the case was tried upon issue joined upon the 'plea that the defendant had satisfied and discharged the plaintiff’s claim by payment before suit brought. This was the state of pleadings under which the ruling in question was made.

The declaration averred the execution of the sealed contract. The plea of payment admits its execution according to the well settled rule that every pleading is taken to confess such traversable matters alleged on the other side as it does not traverse. Johnson vs. Phil., Wilm. & Balto. R. R. Co., 63 Md., 111 ; Parr, et al. vs. State, use of Cockey, 71 Md., 232 .

Moreover, the very question now before us was decided in Burtles vs. State, use of Turner, 4 Md., 278 . In that case the suit was on a constable’s bond, and was tried on issue joined on the plea of general performance. The Court held that this plea admitted the proper execution of the bond and all the prerequisites, and said: “Had the defendant designed to avail himself of any supposed irregularity in the execution of the bond, he should have done so by a pi ea of non est factum. ’ ’ It seems clear, therefore, in this state of the pleadings no proof of the execution of the agreement was nec ess ary in order to allow it to be read to the jury. This renders it unnecessary to •decide whether the case is also covered by the Act of 1888, ch. 248, Code.

Art. 75, sec. 22, sub-sec. 108. ³⁰⁸ In the next exception the plaintiff undertook to prove the execution of the agreement, and .for that purpose offered to prove that all the persons whose names are signed thereto were stockholders of the company, and holders of all the capital stock thereof; that the hoard of directors consisted of three, viz., the plaintiff, who was the president of the company, Anthony Zihlman, and L. A. Eletcher, the latter of whom was its secretary, treasurer, and custodian of its corporate seal; that at a meeting of the directors the contract was signed by Anthony Zihlman and L. A. Eletcher on behalf of the company; that by authority of the hoard of directors at this meeting the corporate seal of the company was there and then affixed to the contract by the secretary, and that the impression of the seal used on the contract is the corporate seal of the company, adopted and used as such by it at that time; that the directors usually held their meetings for the transaction of the ordinary business of the company without making or keeping any minutes of their proceedings; and that no minutes of the meeting at which this contract was signed and sealed as aforesaid were made or kept by the company or any of its. agents or officers. But upon objection made the Court refused to allow the plaintiff to offer any of said matters in evidence to the jury. . We think this ruling was also erroneous. In our opinion it was competent for-this corporation to bind itself by this contract under its corporate seal, and that the fact that it did so may be proved otherwise than by a formal resolution in writing of its hoard of