37 S.E. 507 | N.C. | 1900
DOUGLAS, J., dissenting. The National Bank of Asheville, becoming embarrassed, closed its doors 22 October, 1897. A few days thereafter its stockholders, in meeting duly held, resolved to go into voluntary liquidation of the affairs of the bank, and, in order to secure the speedy and prompt payment of the creditors of the bank — especially its depositors — and to avoid unnecessary expense, authorized the conveyance of all the assets of the bank to W. B. Williamson, trustee, and by an agreement signed by a large number (if not all) of the stockholders empowered and directed said trustee to borrow a sum not exceeding $75,000, at not exceeding 6 per cent interest, payable twelve months after date, to be used in paying off the liabilities of the bank. It is specified in said contract: "This agreement witnesseth that we, whose names are hereunto subscribed, being shareholders (469) in said bank, each owning and holding the number of shares as set forth and appear on the books of said bank, do now each for himself, his executors, administrators, and representatives, but not jointly, undertake and agree with each other and with such persons, or corporations, as may agree and shall advance or lend the sum of money which may be necessary to carry into effect the voluntary liquidation of the affairs of the bank, as follows." Here follows an agreement (1) that all the assets of the bank shall be turned over to W. B. Williamson in trust to collect, and convert into cash, and apply to the liabilities of the bank; (2) that the trustee be directed, as above set forth, to borrow not exceeding $75,000, and to pledge as collateral all the assets of the bank, "and for us and in our name, each and severally, but not jointly, to enter into an agreement with such person or persons, corporation or corporations, as will make such loans, that we and each of us, our heirs, executors, and administrators, will contribute, make good, and pay to such lender or lenders, his, its or their executors, administrators, assigns, or successors, on demand, such parts or proportions of any difference or deficit which may exist at the expiration of 12 months from the date of making said loan between the amount then realized from the collection, or sale, of said assets and resources so pledged as collateral *323 security, after paying therefrom the necessary expense of administering said trust, and the amount then due said lender or lenders, as the number of shares held by each of the signers hereof bears to the aggregate number of shares held by all the signers." The aggregate sum of $75,000 was borrowed by the trustee in divers sums on the faith of the authority conferred on him by the above power of attorney, and the assets of the bank were transferred to him, collected, and applied to above indebtedness. Twelve months having elapsed, this action is brought by the lenders of said sum of (470) $75,000, or, their assignees, after application to said indebtedness of all the net proceeds of the assets and resources of the bank, for the deficiency still remaining, first reducing said deficiency by the pro rata part, according to number of shares, of those signers, who, on demand, have paid the same. The defendants are those signers of the above instrument who have not paid, and the complaint sets out a table showing the pro rata, according to number of shares, due by each of the 13 defendants, signers of the contract, who have not paid, and to each of the 10 plaintiffs, and seeks to recover a judgment for each plaintiff for the part due him by each defendant.
There are three demurrers filed. The first, by Erwin Sluder, sets up as grounds of demurrer:
1. That the plaintiffs are not parties to the transaction set up as a foundation of the action. The contract, on its face, is a power of attorney to Williamson, as their agent, to borrow said money, and to bind them for the payment of the deficiency, after application of the bank assets (which the complaint avers has been done), severally in proportion to the number of shares held by each. The defendants are principals, and properly sued as such.
2. Misjoinder of causes of action and parties. There is but one cause of action — the breach of the contract — set up, and the plaintiffs and defendants, are the parties thereto. As is well stated in the complaint: The questions which are the subject of this action are of common and general interest to all the plaintiffs and all the defendants, and all arise and grow out of the transaction and agreement herein set forth, and a litigation by each of the said plaintiffs with each of said defendants by a separate action upon his individual claim would subject the plaintiffs and defendants alike to great and unnecessary expense and trouble, and would be oppressive and vexatious." (471) The cause of action is the breach of a single contract. If each plaintiff should bring action against each defendant, there would be 130 actions involving the same facts, *324 the same principles of law, and the same transactions. Had such actions been brought, if they had not been dismissed or held defective for want of other parties, any court would have consolidated them to avoid unnecessary and vexatious costs. There is no misjoinder.
3. His last ground of demurrer is the opposite proposition — that there are not enough parties, in that the National Bank itself and W. B. Williamson should be parties to the action. Williamson was merely the agent of the defendants who were the principals to the contract sued on, and has no interest in this controversy, and is in no wise necessary to the determination of the action; nor is the defunct bank, whose assets, as the complaint avers, have been all applied (which is admitted by the demurrer) to the reduction of defendants' indebtedness, a needed party. If the ex-officers of the extinguished corporation could be served with summons and brought into court, that could serve no end. Howe v. Harper (at this term).
The second demurrer is filed by Nellie V. Reynolds and husband. Their demurrer, is besides the points raised by the demurrer of Sluder, presents the additional objection that W. J. Cocke, who signed the contract sued on, did so by virtue of certain shares which he held for his wards, one of whom was said Nellie V. Reynolds, who, it seems, has since married; and her demurrer objects that it does not appear that said Cocke had any power, or authority, to sign said contract so as to bind his wards, and, if any liability is created thereby, it is the personal liability of said Cocke, and not of his said wards. By the National Bank act, the owner of each share of stock in any (472) National Bank is liable to the creditors of the bank in double its amount. That liability attached to Cocke as guardian, and not individually. The action taken was done in a stockholders' meeting, and on its face was for the benefit of the stockholders' and to reduce their respective liabilities. Certainly nothing to the contrary appears. Having benefited by the action taken, the wards are in no position to absolve themselves from the liability incurred in so doing. If there are any facts to the contrary, they can be set up in the answer. Cocke is a party to this action.
The third demurrer is by the other wards of said Cocke, and who are now represented by a new guardian, J. E. Rankin. His demurrer simply duplicates that of Mrs. Reynolds.
Certain other defendants adopted the demurrer of Erwin Sluder.
His Honor properly overruled the demurrers, and gave defendants filing them time to file answers. *325
At the bottom of the contract sued on is this paragraph: "This instrument shall become effective and operative upon the signing thereof by the owners of two-thirds of the capital stock of the aforesaid bank." It is not averred in the complaint that the said contract was in fact signed by the owners of two-thirds of the capital stock. It is extremely improbable that $75,000 would have been loaned on the contract if it had not been so signed, or that, if it had been otherwise, the demurrers would have failed to raise objection for the absence of such averment. It was called to our attention by argument in this Court by counsel who did not appear below, and who frankly stated he did not know how the fact was. The objection is not jurisdictional, and therefore is not a matter of which we could take noticeex mero motu, or which could have been raised by a demurrerore tenus in this Court. The averment should properly have been made in the complaint. But its omission is (473) a defective statement of a good cause of action," and not "a statement of a defective cause of action," and therefore the omission is cured, as to this appeal, by failing to demur therefor. The test between the two is this: If the defendants had demurred, could the Judge have cured it by permitting the amended averment? If so, the failure to demur waives the objection. If, on the other hand, the defect is so organic that permission to amend can not cure it, then it is a defective statement, of which advantage could be taken here. Mizzell v. Ruffin,
No error.
Cited: Bennett v. Tel. Co.,
(474)