Fish v. Berkey

10 Minn. 199 | Minn. | 1865

By the Court —

Berry, J.

— Subdivision 7 of section 87, page 543 of the compilation, known as “The Public Statutes,” was repealed by section 4, of chapter 11, of the Collated Statutes, 1853, so that there is now no statutory provision forbidding the joinder of a claim against a trustee, with a claim against the'same person in his individual capacity or against other persons. It would appear then that whatever questions arise in this case in reference to the joinder of different causes of action, can only be determined in view of the first subdivision of section 87, and on general principles. Under this first subdivision a plaintiff is . authorized to unite several causes of action in the same complaint, when they relate to “the same transaction or transactions connected with the same subject of action.” In construing this subdivision in N. Y. & N. H. R. R. Co. vs. Schuyler et als., 17 N. Y., 604, Comstock, Justice, says: “ Its language is, I think, well chosen for the purpose intended, because it is so obscure and general as to justify the interpretation which shall be found most convenient and best calculated to promote the' ends of justice. It is certainly impossible to extract from a provision so loose and yet so comprehensive any rules less liberal than those which have long prevailed in courts of equity.” The object sought tobe attained by the plaintiff in this action is the recovery of whatever surplus may becoming to him under the agreement set out in the complaint .and as preliminary to such recovery an accounting. Now, assuming that Berkey was a trustee, or a trustee sub modo, it was entirely proper that his co-defendants cesticis que trust should be made parties to this action, first, because they are interested in the account. Story Eq. Pl., sec. 219; Barbour on Parties, 356, 354, 529, 530. They had advanced the sum of five thousand dollars to be applied to certain specified purposes, and'for this advance they were to be reimbursed out of the proceeds of the furniture &c,, and there is nothing to show that they have "been reimbursed. Secondly, by the terms of the agreement these cestuis que trust seem to have been invested with power, concurrently with the trustee, to make sales, &o., and to have been subjected to the obligation to pay over any surplus to the appellant. Thirdly, so far as Berkey was concerned as an individual aside from his right to be reimbursed on account of the advance of five thousand dollar’s, he was also interested in having his private claim for $572.25 satisfied from the proceeds of the sale, &c. Fourthly, a judgment for or against Berkey as trustee in a suit against him alone would not bind the cestuis que trust so as to protect him from future litigation instituted by them. Story lays down the general principle as follows: “It is the constant aim of courts of equity to do complete justice by deciding upon and settling the rights of all parties interested in the subject matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented.” St. Eq. Pl., sec. 72.

The existence and amount of a surplus under the agreement upon which this action is brought, depend upon the amount which was first to be paid out of the proceeds of sales, &g., and the fact whether that amount had been paid; and Berkey, as trustee, had a right to insist that these matters should be adjudicated in such a way as to afford him protection. By the same reasoning we are led to the conclusion that Samuel Mayall and Stephen Long should have been made parties to the action. It appears from the complaint that Samuel Mayall was the maker and Stephen Long the endorser of the Yon Glahn note, and by the terms of the agreement this note was to be paid in whole or in ¡Dart as the proceeds of sale, &e., would permit. The complaint does not show that the note has béen paid. Now, Mayall and Long not only had an interest in having that note paid, so as to exonerate them, but Berkey could properly insist that their rights to the funds in his hands, and the fact whether the note had been paid or not, should be settled and adjudicated'upon. Dias vs. Bouchand, 10 Paige, 458; Bailey vs. Ingee, 2 Id., 278; Dart vs. Palmer, 1 Barb. Ch., 98; St. Eq. Pl., 138; Barb, on Parties, 326.

So far as the joinder of different and inconsistent causes of action is .concerned, we apprehend that a fair and liberal construetioñ of the pleadings as. required by the code, will lead to the conclusion that there is really but one object sought by the complaint, and that is the recovery of such surplus as an accounting shall Stow the plaintiff.entitled to. The different allegations of the complaint bear upon this one subject. In the language of the statute, they relate to “ the same transaction or transactions connected with the same subject of action.” In order to a full and complete investigation of the matters upon which the plaintiff’s rights rest, it was proper for him to set out the seyeral acts and facts upon which he based his claim to a surplus, for the very existence as well as the amount of a surplus depended upon thes.e acts and facts. We think this is the effect of the complaint. It is very possible that the complaint may contain irrelevant and redundant allegations, and that some of the grounds upon which the amount of the surplus is made to depend may be untenable, but if that be the case the complaint is not for that reason demurrable. Fellows vs. Fellows, 4 Cowen 682; Boyd vs. Hoyt, 5 Paige, 65; Van Sant. Pl., 2d Ed., 149; N. Y. & N. H. R. R. Co. vs. Schuyler, 17 N. Y., 592; Brinherhoff vs. Brown, 6 John. Ch., 139; Barb, on Parties, 329; North et al. vs. Bradway et al., 9 Minn., 183.

The averments of negligent and fraudulent dealing in reference to. the insurance (which appears by the complaint to have been effected for the benefit of all parties) and of conversion of the furniture and its proceeds, &c., (though, perhaps, somewhat inartificial), may, we think be fairly construed as amounting to substantial allegations of breaches of the agreement upon which this action is founded,-and it is not necessary to hold that they charge the defendants with a tort or torts, independent of the breach of agreement, so as to establish a misjoinder of action. As to Edward Long and John Mayall, we cannot conceive what interest, upon the facts stated in the complaint, they can have in the proceedings, nor why they should be made parties. Edward Long was simply a lessee, and the only interest which John Mayall appears to have had at any time arose from his lien on the furniture as security for the debt of four thousand dollars. That debt is alleged in the complaint to have been satisfied. Hillman vs. Hillman, 14 How. Pr. R., 460; Waldo vs. Doane, 2 Ch. Sent., 7. The instrument upon which this action is founded is sui generis.It is not an ordinary chattel mortgage. There was a sale of the property, with a right on the part of the seller to a reconveyance on certain conditions, and by its terms as set out in the complaint (the whole instrument itself not being before us) certain trusts were created and certain payments were to be made from the proceeds of the property conveyed, and in case the reconveyancewas not made upon the fulfillment of the prescribed conditions, the parties of the second part and their agent or trustee Avere required to make-sale of the property and pay over to the plaintiff whatever surplus remained after making the several payments in the instrument enumerated. Under this state of facts it is not necessary to meet the position taken by the counsel for the defendants, that the absolute ownership of the property conveyed was in the defendants, and so the plaintiff had no interest in it, and for that reason cannot maintain this action.

[The decision in the foregoing action having been rendered under the mistaken impression that the case had been brought to the Supreme Court by appeal from the order sustaining the demurrer below, instead of by writ of error, the order entered therein was afterwards vacated and the judgment affirmed.-— Reporter.]

The plaintiff does not seek to recover that property in specie, but proceeding upon the basis that he had lost his right to a re-conveyance by a non-performance of the conditions upon Avhich that reconveyance was to depend, he seeks to recover a surplus arising from the proceeds of sales, <fec., which the defendants Avere required to make in case of his non-performance, and his right to that surplus in no Avay depends upon his title to the property itself but upon his interest in its proceeds under the agreement. As it appears, however, that Stephen Long and Samuel Mayall should have been made parties to the action, the demurrer must in that respect be sustained.

Demurrer sustained and action remanded for further proceedings.