72 Ind. 189 | Ind. | 1880
— This action was brought by the appellee, as plaintiff, to recover damages from the appellants for their alleged breaches of a certain written contract and bond executed by them to the appellee. The cause, having been put at issue, was tried by the court at special term, and a finding was made for the appellee, and judgment was rendered accordingly. " On appeal to the court in general term, the
By a proper assignment here, the appellants have brought before this court the errors assigned by them in the court below, in general term, as follows :
1. The court at special term erred in overruling the separate demurrers of the appellants John Schneider and Philip Schloss, to appellee’s complaint;
2. The court also erred in overruling the joint demurrer of said appellants to the complaint; and,
8. The court erred in overruling the appellants’ motion for a new trial.
No question arising under the alleged error of the court in overruling the motion for a new trial has been presented and discussed by the appellants’ counsel in their brief of this cause in this court. The third supposed error must, therefore, under the settled practice of this court, be regarded as waived.
The appellants Schneider and Schloss separately demurred to the complaint upon two grounds of objection, namely:
1. That the complaint did not state facts sufficient to constitute a cause of action ;
2. That the appellee had not legal capacity to sue, which was apparent on the face of the complaint.
The decision of the court in overruling this demurrer was assigned as the first error.
All the appellants jointly demurred to the complaint for the alleged insufficiency of the facts therein to constitute a cause of action, and the overruling of this demurrer was assigned as the second error. The first and second errors may properly, therefore, be considered together.
This suit was brought, as we have seen, by and in the name of ‘ ‘ The Board of School Trustees for the Town of Edinburg, Johnson County, Indiana,” as sole plaintiff. One
The appellants’ counsel assume, that the party plaintiff in this action is an unincorporated company, and they base their entire argument on the point under consideration, on this assumption : Counsel say : “It will not do to say, that the name in which the plaintiffs sue imports a coi’poration, because the complaint and contract, upon which it is founded, expressly negative such, a statement.” In their view, the contract negatives such a statement, because it is signed by Kelly, Winterbery and Thompson, in their own proper-names, and without any prefix or suffix, in close connection-with their signatures, to indicate that they were acting in an
Of course, if it might be assumed, as counsel assume in argument, that the party plaintiff in this cause is an unincorporated company, then no argument would be needed to show that the individual members of such company, whoever they were; would have been proper and necessary parties plaintiffs in the complaint. The rule has been repeatedly recognized, and never questioned so far as we are advised, in the decisions of this court., that an unincorporated company must sue in the individual names of its members, and not in the name of the company. Hays v. Lanier, 3 Blackf. 322; Livingston v. Harvey, 10 Ind. 218; The Adams Express Co. v. Hill, 43 Ind. 157.
But it seems to us that tills assumption of the appellants’ counsel is wholly unauthorized by anything appearing in the record. Certainly it is not apparent on the face of the complaint, that the party plaintiff therein was or is an unincorporated company; and, therefore, the demurrer to the complaint, upon the ground that the plaintiff had not the legal capacity to sut, was correctly overruled. The name in Avhich the plaintiff sued fairly implied that the plaintiff was a corporation, and this implication Avas sufficient to withstand the appellants’ demurrer for the second statutory cause. Harris v. The Muskingum, etc., Co., 4 Blackf. 267;
We fail to see that the use of the plural number, in speaking of a corporation aggregate, tends to show in the remotest degree that such corporation was an unincorporated company, or to negative the statfment that the name in which « the plaintiff sued imported a corporation.
In discussing the sufficiency of the complaint, the appellants’ counsel insist that the demurrer should have beeil sustained because the complaint fails to show any consideration for the bond. The appellants Schneider and Schloss signed the bond given by Mackenzie, as his sureties, but were not parties to his contract, his performance of which was secured by said bond. It is claimed by counsel that the bond ‘ ‘shows upon its face that it was executed subsequent to the contract which it secured.” We think, however, that the bond shows upon its face that the execution of the contract and bond were contemporaneous or concurrent acts. The contract and bond each bore the same date ; and the condition of the bond shows that they were written on the same paper, the contract preceding the bond. The condition of the bond commenced as follows : “Now, if the said John Mackenzie shall faithfully comply with the conditions of the foregoing contract,” etc. From this language it may be fairly assumed that both the instruments were drafted on the same paper, and that neither of them was delivered to the appellee until both had been fully signed by all the parties whose signatures were necessary. We are of the opinion that the contract and bond must be considered as constituting a single instrument, and that the consideration for the contract was a sufficient consideration for the bond.
Another objection to the sufficiency of the complaint, urged by the appellants’ counsel, is, that “the complaint does not state any breaches of the contract which the bond se
We find no error in the record.
The judgment is affirmed, at the appellants’ costs.