38 Wis. 179 | Wis. | 1875
There are really but two objections taken to the complaint on the demurrer: first, multifariousness, or the improper joinder of several causes of action which are distinct in their nature and do not affect all the defendants; secondly, that the complaint fails to state a cause of action against the defendants, or either of them. These points will be considered in the order in which they are raised by the demurrer.
An examination of the complaint will show that these objections are not well founded. One object of the action, and a part of the relief sought, is to have adjudged void the tripartite agreement entered into on the 26th day of June, 1878, between the Superior & St. Croix Railway Company, the Northern Pacific Railway Company and Walbridge Bros. & Sargeant. These defendants all acquired rights under that agreement, and it seems to us plain that the agreement cannot be adjudged void without having all the parties, interested in it before the court. It is a general rule, that where a party is directly affected by the decree, he is an indispensable party; and the courts only depart from the rule when the parties are so numerous that it would be inconvenient or impossible to comply with it. Williams v. Bankhead, 19 Wallace, 568; Story’s Eq. Pl., § 91. The cancellation of this agreement affects directly and essentially all the parties to it, and certainly entire justice cannot be done unless they are before the court. If the only relief sought were the rescission of the contract made in the first instance between the plaintiff and the Superior & St. Croix Railway Company, under which the bonds were delivered and aid granted, some of the defendants would not,^possibly, have so direct an interest in the subject matter of the litigation. Though even then, upon the statements in the complaint, all
'But the objection of multifariousness is confined to cases where the cause of action against each particular defendant is distinct and separate in its subject matter from those against the other defendants. If the grounds of action be not.entirely distinct and unconnected — if they arise out of one and the same transaction, or a series of transactions forming one course of dealing, and all tending to one end, —the objection does not apply. Story’s Eq. Pl., § 271 b; Blake v. Van Tilborg, 21 Wis., 672. In the case cited, Mr. Justice Downer states the rule as follows: “A complaint does not improperly unite several causes of action, which relates to matters of the same nature all connected with each other, and in which all the defendants are more or less interested or concerned, though their rights in-respect to the general subject of the action may be different, and some may be directly interested only in a part of the general claim.” In Brinkerhoff v. Brown, 6 Johns. Ch., 139, Chancellor KENT considers, with his usual research and learning, the question of multifariousness, and, after an examination of the English cases upon the subject, deduces this rule from them: “ A bill against several persons must relate to matters of the same nature and having a connection with each other, and in which all the defendants are more or less'concerned, though their rights in respect to the general subject of the case may be distinct.” p. 156. This rule is cited with approbation in Fellows v. Fellows, 4 Cowen, 682, and is in effect recognized and followed in Winslow v. Dousman, 18 Wis., 457, and Bassett v. Warner, 28 id., 673. This complaint is not multifarious, within these rules. All the matters stated in it are more or less connected, and ail the defendants are more or less concerned or interested in them. The defendants are not only interested in the question as to the validity and binding obligation of the arrangement made on the 26th day of June, 1873,
Does, then, the complaint state a cause of action against the defendants, more especially against Walbridge Bros. S Sargeant, who alone have demurred? Upon this point the able and lucid argument of plaintiff’s counsel left no room for doubt.
The county offers to return to the Superior & St. Croix Company the stock which was issued to it in exchange for its bonds, and demands a rescission of the contract on which aid was voted, and also a rescission of the contract of June 26, 1873, and seeks to recover its bonds. The ground upon which this relief is claimed, is in brief this: The building of the road, it is said, and the stock, were the consideration for the aid 'voted. The Superior & St. Croix and Northern Pacific companies are insolvent, and no benefit can ever accrue to the county from what has been done by the defendants. The scheme has utterly failed, and unless the contracts in question can be rescinded, and the bonds or their value restored, the county will have to pay them without ever having received any benefit from them, the stock being utterly worthless and there being a total failure of consideration. The bonds, being of a negotiable nature, may pass into the hands of innocent holders, where no defense to them would be available, and a fraud will be perpetrated upon the county, if the court does not interfere and order them to be returned for cancellation. It seems to us
It surely seems reasonable and just, on the facts stated, for a court of equity to exercise its jurisdiction, and order a rescission of the contracts and a return of the bonds to the county. No part of the road has been built, the construction of which was doubtless the real consideration for voting aid to the company ; and the work has been abandoned. The defendants have no equitable right to retain the bonds, when they refuse or are are unable to perform their contract. -The bonds, from their negotiable character, are liable to pass into the hands of innocent holders, or may be used for an. improper purpose, to the injury of the county, And if a resort to equity for the cancellation or delivering up of securities can be sustained on the ground of protective justice, and considerations of what is just and reasonable, this case calls for the exercise of the power.,
The counsel for the defendants insist that the facts only show an ordinary instance of a nonperformance of a contract, and that the remedy is at law for damages. But this is obviously an inadequate and insufficient remedy, as was demonstrated by the counsel on the other side. The Superior^ St. Croix Company has no property of any considerable value ; the Northern Pacific, even if it had entered into a binding obligation to complete the road, is notoriously insolvent; and an action upon
The counsel for the defendants also insisted, that as an absolute title to the bonds passed to the Superior & St. Croix Company, that company had an undoubted legal right to release Walbridge Bros. & Sargeant, from their contract to construct the road, and to make them compensation for work done and material furnished, by delivering them the $75,000 which they now hold. It may be true that the title to the county bonds passed by delivery to the company, but it seems to us utterly impossible, upon the facts stated, to sustain the- position that Walbridge Bros. & Sargeanl are bona fide holders for value of any considerable portion of these bonds, and entitled to protection as sucb. They have only done an inconsiderable amount of work on the road ; have not constructed a single mile, nor furnished a single car or locomotive; and have abandoned their contract entirely. It seems to us they stand essentially upon tbe same ground as the company, and are entitled to no greater consideration. Their right to bold the $75,000 bonds is derived through or founded upon tbe arrangement entered into June 26, 1873, which we consider void and not binding on tbe county. For to our minds the resolution of the county board extending the time for the completion of the road and making other changes in the proposition upon which aid was granted by a vote of the electors, was without authority ánd void. The agreement which was entered into between tbe county board and the Superior & St. Croix Company, and which was submitted to the electors when aid was voted, could not be essentially modified or changed by tbe county authorities. Lawson v. Schnellen, 33 Wis., 288. The reason for this view is given
It results from these remarks that the second ground of demurrer is not well taken.
By the Court. — The order of the circuit court overruling the demurrer is affirmed.