37 Ill. App. 403 | Ill. App. Ct. | 1890
The “ Directors of the Wahnahton Association of Chicago ” are a class of persons designated by that description, the persons composing which class are ascertainable, and are fully ascertained and identified by the allegations of the bill. A bond or deed to a class of persons is valid, for “ a deed may be made to persons as well by a description as nominatmn, for after all names are but a more precise description.” Justice v. Armstrong, 3 Dev. L. 284.
If one gives his bond to another and himself it can not be sued at law, for a man can not be both plaintiff and defendant in the same action at law, whether others be associated with him or not. But' the defect in the instrument does not render it void. It is a teoluiiealand not substantial defect. “It applies to the remedy and not to the right; and may be obviated by resorting to a court of equity, in which a man can be both plaintiff and defendant in the same suit.” Booth v. Kinsey, 8 Gratt. 560; Batchelder v. Wendelell, 36 N. H. 204; Jones v. Yates, 9 Barn. & Cress. 537; Dicey on Parties, 79.
If one of the obligors was not also an obligee in this bond, the bond would be a valid instrument at law, and the obligees might well sue, having the legal title to the money recoverable on the bond, though the real beneficiaries are the members of the voluntary association. Metcalf v. Bruin, 12 East, 400. But because of the technical objection at law, there would be a failure of justice unless equity would enforce the obligation.
Says Mitford in Eq. Pl. 111: “ The jurisdiction of a court of equity is to be exercised (1) where the principles of law by which the ordinary courts are guided, give a right; but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding cure inadequate to the purpose.” See, also, 1 Story Eq. Jur., Secs. 679, 80-81; Haven v. Wakefield, 39 Ill. 519.
So far, therefore, as the court below,- in sustaining the demurrer, proceeded on the ground assigned, that there was a remedy at law and therefore equity had no jurisdiction, the view was erroneous.
The very case is presented where there can be no remedy at law, and that, if there is a right, is an adequate ground on which to ask the aid of a court of equity. 3STor do we think the objection that equity will not enforce a penalty will avail appellees as a defense. The bond is a joint and several undertaking, and upon the faith of it, one of the contracting parties obtained the money sought to be recovered. The contract is that William C. Niehoff shall, at the expiration of his term, turn over to his successor all moneys belonging to the association.
This is tlie contract of all the obligors, and equity will in its own method enforce it, not by giving judgment for the penalty of the bond, but by decreeing the payment of the money received. Equity regards not the form, but the substance.
It is strenuously urged, however, that the proper parties are not before the court; that all the members of this association must be made parties complainant. True, the general rule in equity is, that all parties in interest should be made parties to the suit, either as complainants or as defendants, but there are well established exceptions to this rule.
Here the parties who file the bill are in fact under the particular form of organization adopted by this voluntary association, representatives of all the members, and of the association.
In Taylor v. Salmon, 4 Mylne & Craig, 134, the bill was filed by the directors of a joint stock company, on behalf of themselves and all other stockholders seeking to have the benefit of an agreement entered into by an agent of the company. There was a demurrer for want of parties, and the Lord Chancellor said: “ That where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others, is established.”
The same rule was applied in Wallworth v. Holt, 4 Mylne & Craig, 619, and in the notes to this last mentioned case, a case decided.by LordLangdale is cited, where one member of a club filed a bill on behalf of himself and other members, against two of the members, to recover money of the club and for other relief. There was a demurrer for want of parties. The demurrer was overruled. The court said the bill sought to recover the particular assets, “ not for the purpose of distribution by or through the means of this suit, but for the purpose of bringing them within the control of the governing body of the partnership, in order that they may be applied under their control according to the rights of the parties. *■ * * The plaintiff and all the other members except these two defendants must have an interest in having the money, which the demurrer admits to be in the defendants’ possession, brought within the control of the club; that is the common interest of all. How this money when it is brought within the control of the club ought to be applied, is another matter. To ask to recover it and place it within the control of the club, and leave it there subject to litigation, is asking no more than was done in the case of Wallworth v. Holt, where matters were thus left. If, then, it is for the common benefit of all, except the two defendants, that those funds should be recovered, why should it not be done % ” Richardson v. Hastings, 7 Beav. 323.
Story’s Eq. Pleading, Sec. 107, mentions as an exception to the general rule, cases “ where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient. * * * Under such circumstances as there is a privity of interest, the court will allow a bill to be brought by some of the parties on behalf of themselves and all the others, taking care that there shall be a due representation of all substantial interests before the court. And such a bill must be brought on behalf of all the parties in interest, for if it be brought for the plaintiff alone, it will not be sustained by the court for the want of proper parties.” See Fen v. Craig, 3 Y. & Coll. (Exch.) 216; Manderville v. Riggs, 2 Peters, 483; Barb. on Parties, 501.
The cases in this State recognize this general rule. Whitney v. Mayo, 15 Ill. 255.
The allegations of the bill bring this case within the letter and spirit of the rule, and we must therefore hold that the complainants may maintain the bill without making the other members of the association parties complainant or defendant.
So much of the decree of the court below as overruled the demurrer of William O. Niehoff and decreed the payment of the money found due from him, will be affirmed, and so much of the decree as sustained the demurrers of Conrad L. Niehoff and Jacob Becker and dismissed the bill as to them, will be reversed and the case remanded to the Circuit Court with directions to overrule the demurrers of the" said last named defendants and require them to answer the bill.
Affirmed in part and reversed m part, and remanded.
