George v. Benjamin

100 Wis. 622 | Wis. | 1898

Bardeen, J.

Two questions are involved on this appeal: (1) Is there a defect of parties plaintiff ? (2) Does the complaint state a cause of action ?

1. The plaintiff seeks to justify the maintenance of this action by himself, and on behalf of others, under R. S. 1878, sec. 2601. This section reads as follows: “ Of the parties to the action, those united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.”

As a reason why this action is brought in the name of the plaintiff alone, the complaint alleges that “ the question involved in this action is one of a common or general interest to many persons, and that the parties interested and associated herein are very numerous, and that many of the persons interested herein are not residents of the state of Wisconsin, but that they are residents of other states; that it is impracticable to bring all of said persons before the court.” He seeks to sustain his right to maintain this action on the two grounds mentioned in the statute,— that the question involved is one of common and general interest of many persons, and that the parties are very numerous, and it is impracticable to bring them all before the court. As stated in Day v. Buckingham, 87 Wis. 215, and repeated in Frederick v. Douglas Co. 96 Wis. 411, this statute has been construed as merely re-enacting the rules which prevailed in equity, and which otherwise might have been held to be abolished by the Code. So, also, it has been held that, when the question is one of common or general interest, the action may be brought by one or more for the benefit of all who have such common or general interest, without showing that the parties are even numerous, or that it would be impracticable to bring them all before the court. McKenzie v. D'Amoreux, 11 Barb. 516; Barb. Parties, 50, 51. Bliss, Code Pl. § 79, says: “ This rule is in harmony with the requirement that all the' parties plaintiff must have a joint or common interest, and the interest of the parties represented must appear to be such as to entitle them, were they all before the court, to maintain the action in their own names. It is therefore simply a rule of convenience, and, though pertaining, like other general rules, to all cases to which it is applicable, yet in practice it will seldom be appealed to except in actions heretofore called equitable.” It requires but a mere inspection of the complaint to show that the claim that the question involved in this action is “ one of common or general interest to many persons ” is not justified by the facts alleged. On the contrary, the complaint shows that the question involved arises out of contract, personal to each one of the subscribers to it. It shows positively and definitely that all are united in interest. Each subscriber to the contract agrees with every other subscriber that he will “ pay such sum or sums as shall be needed for future payments on said property, as the same are demanded and required by the parties in interest herein.” McKenzie v. D'Amoureux, supra, is an instructive case on this point. Bliss, Code Pl. §§ 80, 81; Pomeroy, Code Rem. § 390 at seq. It would seem too plain for argument that tbe complaint fails to state any fact wbicli shows that the parties to this contract have a common or general interest which would enable each to maintain an action in his own name if he was before the court.

As to the second ground relied on, the statute does not require any question of common or general interest to this great number. It is based upon the fact that the parties are so numerous that it is really impracticable to make them all actual plaintiffs. It is perhaps difficult to say just where the line should be drawn; just how few or how numerous the parties must be to get within the lines of the statute. Under the rule in equity, it was held that twenty creditors interested in real estate, the subject of litigation, was not so large a number as that the court would allow a few to represent the others. Harrison v. Stewardson, 2 Hare, 530. In New York it was held that the number thirty-five was not sufficiently great to allow a few to represent the many. Kirk v. Young, 2 Abb. Prac. 453. Clerke, J., said: “But this is not a case in which it is impracticable to bring all the plaintiffs before the court. Their number is thirty-five, and, although perhaps too numerous not to make it somewhat inconvenient to the pleader to.recount their names, it is certainly not impracticable to do so; and without a very obvious necessity the court should always require that all the persons in the action should appear by their individual and real names.” The fact that all the parties to the contract are united in interest affords a sufficient reason for holding that they are necessary parties to the action. Dicey, Parties, Rule 13, p. 104, says: “ All the persons with whom a contract is made must join in an action for a breach of it.” But in this case the parties sustain such relations to each other as in legal effect makes them partners. No other construction can be given to the contract, and their acts under it, without doing violence to the plainest legal principles. 1 Chitty, Pl. 13, says: “ It is a general rule that, in the case of partners, all the members of the firm should be plaintiffs in an action upon a contract made with the firm; nor can any private arrangement by the firm that one, only, of the parties shall bring the action, give ]}im the right to sue alone.” And Dicey (Parties, p. 149) says that this holds good even though the company consist of a hundred persons. Neither can the action be sustained on the ground that the alleged syndicate is an “unincorporated company” or a “ voluntary association.” It does not appear that they have done anything to give it the characteristics of such organizations, except to elect officers. So, in whatever view we consider the case, we are unable to see how the plaintiff can maintain this action alone.

2. Had there not been a defect of parties plaintiff, we feel quite well satisfied that this action is properly founded. The contract set out in the complaint, and their proceedings under it, make the parties thereto partners in legal effect. But it is said one partner cannot sue another upon a demand arising out of partnership transactions. Unquestionably that is the law, but the difficulty is that it has no application to the facts of this case. The cause of action stated is not one growing out of the transactions of the syndicate. It is based upon a direct and positive promise of defendant with all his associates to pay money for a given object. Belying upon these mutual promises, over $125,000 has been paid in and devoted to the purpose agreed upon. Defendant has received and retained his interest in the company. Surely, he is in no position to say there must be a dissolution and an accounting before he will pay his just share towards carrying on the proposed enterprise. The books .are full of cases sustaining the defendant’s liability, and the right of the other parties to compel payment of the amount in default. Cowen, J., in Glover v. Tuck, 24 Wend. 153, says: “When, as in the case before us, the covenant is to mate specific advances for the purpose of launching a partnership, I presume the right to an action was never questioned.” “The objection that the articles of agreement between plaintiff and defendants constituted a partnership, in consequence of which the plaintiff’s remedy lies in a court of equity only, is thus answered by Collyer, Partnership, 132 [Perkins’ ed. § 245]: ‘ One partner may maintain an action of covenant against his copartner, whether the covenant be to pay any sum or do any act for the purpose of only launching the partnership, or whether it be to perform any of the articles after the partnership has commenced. An action of covenant will lie, although there may be accounts between the parties which require unraveling in equity.’ ” Bates on Partnership lays down a similar rule at § 876. George v. Harris, 4 N. H. 533; Pillsbury v. Pillsbury, 20 N. H. 90; Collamer v. Foster, 26 Vt. 754; Williams v. Henshaw, 11 Pick. 79; Sprout v. Crowley, 30 Wis. 187; Lathrop v. Knapp, 27 Wis. 214. This latter case was one in which the facts were quite parallel with the case at bar, and is directly in point on the question of compelling the defendant to contribute as he agreed to. The case of McMahon v. Rauhr, 47 N. Y. 67, so much relied upon by defendant, is really a world wide from the case under consideration. The facts which distinguish it from this case will become apparent from a mere inspection of the case, and it is not necessary to mention them here.

The other objections urged to the complaint are purely technical, and cannot be reached by demurrer. If the defendant desires further information as to the times when the instalments become due on the land contracts held by the trustee, he can secure it by motion.

By the Court.— The order of the circuit court is reversed, and the case is remanded for further proceedings according to law.