142 N.W. 47 | N.D. | 1913
The complaint in this action is too lengthy to be given verbatim, but is substantially as follows: That on the 21st day of September, 1909, one James J. Byder commenced business ás a public warehouse and elevator man in the village of Crosby, North Dakota, and that for the purpose of obtaining the license required by § 2247, Bev. Codes 1905, he furnished a bond signed by the defendants in this action, running to the state of North Dakota in the sum of $5,-
That during the months of October and November, 1910, the plaintiff delivered to said Ryder at the public warehouse conducted by him, 736 bushels and 40 pounds of No. 1 hard wheat, and received therefor storage tickets in due form; that said wheat belonged to the plaintiff and was of the value of 95 cents per bushel. That on or about the 31st of December, 1910, the said Ryder closed the said warehouse, leaving no one in charge thereof; and that on or about the 13th of January, 1911, the said Ryder appointed the Security State Bank of Crosby as agent, with authority to redeem all outstanding warehouse receipts, but that on the 21st day of January, 1913, said bank ceased to redeem such receipts, for the reason that they had exhausted the funds furnished them by Ryder. 'That about the 11th day of February, 1911, the said Ryder died and an administrator was appointed for his estate. That plaintiff had demanded that the said administrator deliver to him said wheat, or its equivalent in money, both of which have been refused, by reason of which facts plaintiff asked judgment against the bondsmen for the value of said wheat. The defendants’ answer practically admitted all of the allegations of the complaint, but alleged as an affirmative defense new matters as follows': First, that said Ryder had removed his elevator from its original site to another lot in the village of Crosby, without the consent of his said bondsmen; second, that the license issued by the state to said Ryder was contrary to the provisions of the bond, in that it authorized Ryder to continue business for a period beyond that designated in the bond; and, third, that said Ryder was never at any time adjudged to be liable to plaintiff for any sum arising out of the performance or nonperformance of any of his
To this answer the plaintiff interposed a demurrer upon the grounds that it did not state facts sufficient to constitute a defense. Upon a hearing, the trial court took the position that all of the facts alleged in the complaint and answer were admitted, and that therefore nothing remained but to decide the law. In other words, he treated the hearing as a trial upon issues of law alone, or, as stated by the respondent, it was considered that the demurrer to the answer searched the record. Upon the said hearing the trial court held that the complaint of the plaintiff herein did not state a cause of action in favor of the plaintiff, and this .appeal is from that holding.
(1) The appellant, in his brief, recognizes this proposition as follows : “In sustaining the demurrer of the defendant, the court necessarily held that the action could not be maintained by this plaintiff, since he is not the obligee named in the bond.” We have examined authorities cited by appellant with care, but they do not seem to be in point. The gist of said decisions is that the action must be maintained by the real party in interest, which is undoubtedly correct as a legal proposition, but it does not necessarily follow that the plaintiff is the real party in interest in this action. Section 2247, Rev. Codes 1905, provides that the bond shall be given to the -state, and “shall be in sufficient amount to protect the holders of outstanding tickets.” This bond is given for the benefit of all ticket holders, and not for the benefit of uny particular one. Plaintiff is therefore only a small part of the real party in interest. Section 6809, Rev. Codes 1905, provides that a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. Under these provisions South Dakota has held that the suit may be in the name of the state, without deciding whether it may also be brought hy the beneficiaries. State v. Newson, 8 S. D. 327, 66 N. W. 468 ; other cases cited by appellant are based upon dis■similar facts to those at bar; for example, when the bond given is for the protection of one particular person interested, and not for a class •of persons. The nearest authority that we have been able to find was contained in the following cited New York cases: In 1907 the New York state legislature passed an act requiring all persons engaged in
(2) Though the holding in ¶ 1 disposes of this case, we might say that we do not believe the matters pleaded as a defense in the answer of the defendant constitute a bar to this action. A perusal of the bond does not bear out the contention of the defendants that the license was improperly issued by the railroad commissioners, nor do we think it material that the elevator was moved a short distance within the same village, nor that any judgment was ever recovered against Ryder. Tne bond has many conditions besides that which provides that the sureties will pay any judgments obtained against Ryder. The order of the trial court is in all things affirmed. This decision, however, is to be without prejudice to the bringing of the proper action in equity as outlined above.