Upon decision of a subsequent motion for reargument, the following opinion was delivered: *Page 431 We have, in considering this motion, very carefully re-examined the case and reviewed the reasons assigned for the decision made by us that the judgment of the Supreme Court should be affirmed. The facts are undisputed. There can be but one conclusion from the evidence. There was no conflict in the testimony or doubtful inference to carry the case to the jury. The plaintiff conceded that the question was one of law and not of fact for the jury, by asking that a verdict be ordered for the plaintiff, and had the court agreed with him as to the legal principles upon which the case hinged, and the legal liabilities of the defendants resulting from the undisputed facts, a verdict would have been ordered as requested. But the evidence is uncontradicted that all the parties who were actors in the transaction under review, or who took part in the business of the cotton factory, supposed the corporation still existed and both borrower and lender of the money, to recover which this action is brought, supposed that the loan was to the corporation. The plaintiff did not deal with the defendants or the trustees or stockholders of the corporation as co-partners or as individuals, or give credit to them as such; neither did the defendants intend to become co-partners, or to become bound as such, and they did not hold themselves out as partners. Under these circumstances, we were of the opinion that no personal liability was incurred by the defendants, and for the reasons before assigned. Complaint is made that the counsel for the plaintiff is misrepresented, in the opinion, by the statement that it was not claimed that there was any distinction to be made between the defendants Walker and McQuade, in respect to their liability. The sentence is in these words: "There is no evidence against McQuade to distinguish his case from that of Walker, and it was not claimed, upon the trial, that either was liable if both were not." The latter clause of the sentence is the particular subject of the complaint, and is literally true and entitled to all the significance given it, as showing that no distinction could be claimed in this court, and it was not deemed necessary to prove that the point would not have availed had it been *Page 432 properly and seasonably taken. The record is as follows: "Here the evidence closed. The plaintiff's counsel moved that the court direct a verdict in favor of the plaintiff against the defendants. The court refused to grant the motion, to which ruling and decision the plaintiff's counsel duly excepted. The defendants' counsel moved that the court order a nonsuit. The plaintiff requested to go to the jury, and the court declined to submit any fact to the jury, and ordered a nonsuit, to which ruling and decision the plaintiff's counsel excepted, and a nonsuit was ordered." We did not mistake the record and were not misled by the points and brief of the respondents, as is suggested. If the counsel for the plaintiff supposed that McQuade might be liable even if the court should rule in favor of Walker, he should have taken the position at Circuit and taken the ruling of the Circuit judge; and not having done so, but himself united both defendants in the same general request, he cannot, upon appeal, make the question that any distinction exists as to their respective liability. If he in fact took the point at the Circuit, it should have been made to appear in the exceptions and been spread out on the record, by which the appellate court must be governed. But if the point were in the case, we are of opinion that there is nothing in the evidence to distinguish between Walker and McQuade in respect to their legal liability. The circumstantial difference between the two in the position they occupied in relation to the corporation, both before and after its charter had expired by limitation of time, was not forgotten or overlooked; but we thought those circumstantial differences did not create a legal distinction between them in respect to their liability to the plaintiff. Neither contracted the debt in person or authorized any one to represent him individually in the transaction. The money was borrowed by the agent of the corporation, under a power conferred by the trustees while the charter was in life; and whether the party sought to be charged was nominally a trustee or only a stockholder, could not, upon the evidence in this case, be important. We find nothing to change or qualify in the former opinion. We had the points *Page 433 and brief of the counsel for the plaintiff before us, and did not overlook the claim he made to hold McQuade, even if Walker should be adjudged not liable, but were of opinion that under his exceptions the point could not be taken, and that if it had been taken at the trial, and so properly before us, it was not tenable.
The motion must be denied, with ten dollars cost.
All concur.
Motion denied.