Hodges v. Nalty, 104 Wis. 464

104 Wis. 464 | Wis. | 1899

WiNSlow, J.

This is an action at law by a part of the subscribers to a building fund, wEo have incurred obligations on the faith of the subscription, to recover of one subscriber the amount of his unpaid subscription. That such a promise as -is here alleged is valid and binding, and may. be-' enforced by the proper parties in some appropriate form of action, is well settled. Superior C. L. Co. v. Bickford, 93 Wis. 220. The controlling questions raised by the demurrer here are (1) whether the action can be maintained by a part, of the subscribers for the benefit of all; and (2) whether all. the defaulting subscribers should be made defendants.

1. The allegations of the complaint, fairly construed, show that the total subscriptions made, including the defendant’s,, exceeded $11,000, of which $10,000 had be,en paid; that on the faith of these subscriptions a church costing about $11,000 has been erected, and obligations therefor incurred by the subscribers, who are at least seventy-five in number; and that nearly all the subscribers have paid their subscriptions, but that the defendant has not paid. That these facts made the defendant’s subscription binding and enforceable by some one cannot be doubted, and the general principle is that it may be enforced by those who have accepted the-offer and incurred obligations or expended money on the faith of the subscription. See 24 Am. & Eng. Ency. of Law, 381, note 8. In this case it is alleged that the subscribers to the fund, seventy-five or more in number, built the church and incurred the obligations. If this be so, then they are the parties who are prejudiced by the defendant’s refusal to pay, and hence are the real parties in interest and entitled to sue upon the contract.

Rut there are alleged to be seventy-five of these parties, and the question arises whether a part may sue for all. The statute provides (Stats. 1898, sec. 2604), “ When the question is one of 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.” This section was recently considered in the case of an action to enforce payment of a subscription to a business enterprise (George v. Benjamin, 100 Wis. 622), and it was held that the complaint did not show a common or general interest in all the subscribers, and that the number of subscribers, which was thirty-one in that case, was not so large as to be called very numerous and render it impracticable to bring them all before the court; hence it was held that all must join in that case. That case rules the present case upon the first branch of the section, but as to the second branch the question is still open. Seventy-five persons is surely a very large and unwieldy number of persons to join in an action when it is practicable for a few to settle the controversy for the benefit of all. A line must be drawn somewhere, and, while it may be difficult to draw it at any precise number, we hold that seventy-five is a sufficient number, in a case like the present, to justify the court in allowing one or more to sue for all. See note to Phipps v. Jones, 59 Am. Dec. 708. There is therefore no defect of parties plaintiff. The ten subscribers named as plaintiffs may prosecute the action for the benefit of all the subscribers who have paid their subscriptions and erected the church, and the action so prosecuted becomes in legal effect an action brought by all the subscribers.

But it is said that the complaint alleges that the defendant’s promise was to pay to the committee of fourteen, and that the action should be prosecuted by the whole committee, and not by a part of such committee. It seems to be alleged in the complaint that the promise was made to pay to the committee, though the allegations are not quite clear; but, if so, still it is plain that the. promise was to the committee in their capacity as agents for all the subscribers who should join the enterprise and expend money or incur obligations in building the church. The committee were the agents; the full body of subscribers, the principals; and the rule is familiar that where a promise is made direct to an agent, even in such form that the agent may sue upon it himself, still the principal may step in and sue thereon in his own name. Kirschbon v. Bonzel, 67 Wis. 178. In this case the whole body of subscribers are suing, not the committee.

2. The liability of each subscriber is a several liability, and not a joint liability with the other subscribers, and hence is to be enforced in an action a4 law against him alone. Gibbons v. Grinsel, 79 Wis. 365. Whether the plaintiffs will show themselves entitled to recover the whole amount of the subscription, or only a ratable proportion thereof, will depend upon the testimony showing the total amount of subscriptions and the total amount of expenditures.

Whether the defendant bound himself personally by the signature “Nalty Family ” may also be a question to be decided upon the trial, in the light of proper evidence showing the surrounding circumstances under which the subscription was made. Under the allegations of the complaint, however, the question is not open upon this demurrer.

By ihe Court.— Order affirmed.