145 N.W. 825 | N.D. | 1914
Plaintiff brings action upon an elevator warehouse’s bond, the breach alleged being the failure to account for grains stored with the warehouseman. The complaint does not state that the action was brought upon behalf of himself and others similarly situated, or that the action was brought to protect the holders of outstanding tickets. There are four similar suits before this court upon appeal, and we understand that there are others pending in the district court. At the trial defendants demurred upon the grounds that the complaint does not state facts sufficient to constitute a cause of action. Appellants filed a supplemental brief dated May 15, 1913, from which we quote: “We doubt very much whether the plaintiff in this case, under this bond and under the statutes, is the real party in interest for another reason. Section 2247 of the 1905 Code provides that the bond ‘shall be in a sufficient amount to protect the holders of outstanding tickets.’ It is evidently the object of this statute to prevent a multiplicity of suits. It must also be the object of this statute to prevent any single person from reaping the entire benefit of the bond, and thus cut off all other parties that might be similarly situated, and that might have met similar losses
In justice to the trial court it should be noted that his rulings were rendered prior to the decision in Phillips v. Semingson.