9 Paige Ch. 188 | New York Court of Chancery | 1841
The contract in this case is not under seal, and I think as it is signed by Conklin and Hewett as agents for the corporation, it might be declared on, in an action at law, as the agreement of the Beekman Iron Company made and signed by the agents of the corporation. (Story on Agency, 143, § 154. Evans v. Wells & Spring, 22 Wend. Rep. 325.) It was not necessary, therefore, to come here to reform the contract in that respect.
The objection taken by the demurrer of Conklin and Hewett, that they are mere witnesses and ought not to be made parties, might perhaps have been held valid if their demurrer had been merely as to the relief prayed against them. But a demurrer cannot be sustained in part. And as this is a general demurrer to the discovery as well as to relief, it must be overruled if the bill is properly filed against the corporation for which they acted as the agents in making the contract with the complainant. The case of the officers or agents of a corporation forms an exception to the general rule that a mere witness, Avho has no personal interest in the subject of the suit, cannot be made a party. It is the settled laAv both in this country and in England, that in a bill against a corporation for relief, its officers and agents, who are cognizant of the facts to which it relates, may be made defendants for the purpose of obtaining an answer on oath; Avhich cannot be obtained in any other way. (Story’s Eq. Pl. 201, § 235. 1 Paige’s Rep. 37, 219. 5 Price’s Rep. 491.) The decision of Sir John Leach in the case of How v. Best 41 Hase, (5 Mad. Rep. 19,) is perfectly reconcileable Avith the uniform current of decisions on this subject. In that case an officer of the Bank of England was made defendant for the purpose of discovery as to the time wdien certain stocks were transferred on the books of the bank; and his demurrer was alloAved. It is evident, however, that the bill in that case was not filed against the bank ; but against another party, as to Avhom it became material for the complainant to ascertain the time of the transfer of stocks transferible at the bank. And as the corporation itself could not, in such
There is no foundation for the objection that the bill is multifarious. The whole cause of complaint arises out of one transaction and could not be split up into separate suits. And a prayer for relief against the agents of the corporation, which was improper if the complainant was not entitled to relief as to them, did not render the bill multifarious, or authorize a general demurrer both as to the discovery and the relief. To render a bill multifarious it must contain two or more good grounds of suit, which cannot properly be joined in the same bill, against the same defendant or different defendants. For if a good cause of complaint is joined in the bill with other allegations which could not entitle the complainant to file a bill against the defendants, or either of them, such allegations are simply impertinent; or afford grounds for demurrer to that part of the bill for want of equity. So where relief is prayed against the officers of a corporation, who are properly made defendants with the corporation for the purpose of the discovery, where the case made by the bill does not entitle the complainant to ask relief against them, such prayer does not authorize either such officers or the corporation to demur to the whole bill as multifarious. But such officers or agents may, if they think proper, answer as to the discovery sought, and demur as to the claim for relief against them j
Upon the merits of the case I have also arrived at the conclusion that the demurrers are not well taken. The statute has prescribed what shall constitute a ton. And although the original 18th section of the title of the revised statutes relative to weights and measures, (1 R. S. 609,) does not probably apply to this case, I am inclined to think the 35th section of.that title, which declares that the hundred weight shall consist of one hundred pounds averdupois, and twenty such hundreds shall constitute a ton, would preclude the complainant, in a suit at law upon this written contract, from showing that the parties intended to contract for the delivery of the iron at the gross weight of 2240 pounds to the ton. Usage and custom may be given in evidence in a great variety of cases, for the purpose of giving a different meaning to the language of a contract from that which the words used by the parties would bear in their ordinary or primary sense. But where a positive statute has declared the meaning or legal signification of a word, in reference to its use in contracts generally, I am not aware of any case in which a court of law has gone so far as to receive parol evidence to explain a written contract, expressed in the language of the statute, by showing that the statutory term in that particular contract meant something else than that which the legislature had declared should be its meaning. The complainant would therefore find it difficult if not impossible to recover upon this contract, in a court of law, for the neglect of the defendants to deliver the number of tons of iron mentioned therein at gross weight. But if the allegations in the bill are true, there cannot be a doubt that both parties intended to contract for the one thousand tons of pig iron at gross weight; as the corporation and its agents had been in the
As the defendants have answered a part of the bill, denying combination, the complainant must now except to their answers for insufficiency, if he wishes for a further answer ; which I presume he does as to Conklin and Hewett who are made parties for the sake of discovery. (Story’s Eq. Pl. 535, note 2. Kuypers v. The Reformed Dutch Church, 6 Paige’s Rep. 576.) He must, therefore, have thirty days to file his exceptions to both or either of the answers, as he shall be advised. And if he excepts to the answer of Conklin and Hewett, they must put in their further answers to the exceptions within thirty days after the service of such exceptions, and pay the costs on their demurrer, or he may have an attachment against them to compel a further answer. In case he does not wish any further answer from the corporation, he must file his replication to the answer already put in within the thirty days allowed for excepting. And if he excepts to that answer for insufficiency, the corporation must answer the exceptions and pay the costs on its demurrer within thirty days thereafter, or the bill must be taken as confessed against the company.
