18 Wis. 17 | Wis. | 1864
By the Court,
This was a demurrer to a complaint, which was overruled, and the defendant appeals. The first question to be determined is, whether the complaint shows a good claim against the Chicago, St. Paul & Pond du Lac Bail-road Company. It ..shows for the first cause of action, that the plaintiff had recovered a judgment of more than $120,000
Suppose A has a disputed claim against B. They settle, B paying a certain sum down, and promising a further sum in case C grants him certain lands which he is then endeavoring to procure. Afterwards C grants the lands, not directly to B, but to some other person whom B should appoint. Would not that be a grant to him, within the meaning of the agreement? No one could doubt it; and the question under consideration is the same. It follows that as the Chicago, St. Paul & Pond du Lac Company became liable to deliver the stock in pursuance of the award, and failed to do so, the complaint shows a valid claim against that company.
It further remains to decide whether it shows enough to charge the present defendant with that debt ? In the case of Vilas v. The Milwaukee & Prairie du Chien Railway Co., 17 Wis., 497, we held that where the property and franchises of a railroad company had been sold on a mortgage, and a new company organized by the purchasers, in pursuance of chapter 121, Laws of 1856, the new company was not liable for the debts of the old. That decision would dispose of this case, except for the alleged agreement under which the mortgage sale, in this instance, was had. The complaint avers that there being an outstanding mortgage to trustees, to secure
The theory of the plaintiff is, that these allegations show that the present company is nothing but the old company under another name, and is therefore liable for all the old debts. But we have come to the conclusion that although the complaint says the agreement was that the old company should be reorganized, and that it was reorganized, yet it shows that anew company was to be and was organized. It shows this by showing that there was to be a mortgage sale, which, in the absence of an agreement, would cut off all the rights of the old company and its creditors. The parties can only be assumed to have resorted to such a sale with a view to give full effect to it as a mortgage sale, except so far as such effect might be modified by the agreement itself. The agreement preserved to the old unsecured creditors the right only to come in as stockholders in the new company, a very different right from a cash demand against the old. It seems very obvious from this provision and from the whole character of the agreement, that it was not intended merely to change the name of the old company, but was intended to sell its property and franchises on the mortgage so as to cut off all rights of those interested in the old company, except sp. far as they might be preserved by the agreement itself. This conclusion is also supported by reference to the provisions of chapter
There can be no doubt that a valid agreement of that kind between the old company and its mortgagees would so far modify the effect which a mortgage sale would otherwise have. Whether, to sustain the allegation that such an agreement was made, it would be necessary to prove an agreement in writing, it is not necessary now to determine. But assuming a valid agreement to have been made as alleged, we think the complaint fails in the first count to show a cause of action, because it is nowhere alleged that the plaintiff has ever demanded or been refused the rights of a stockholder in the new company in pursuance of the agreement, or that the new company had ever assumed the debt as authorized by the act under which it organized.
Another cause of action is set forth, founded upon an agreement by the Chicago, St. Paul & Pond du Lac Company to indemnify and keep the plaintiff harmless as in-dorser for the Rock River Valléy Union Railroad Company. It is averred that this was not done, but that divers judgments were recovered against the plaintiff as such indorser, which were in full force and unsatisfied, and liens and encumbrances on his land. We have no doubt this shows a good claim against the old company. The appellant’s counsel contends that it does not, for the reason that there is no allegation that
But although the second cause of action shows a good claim against the old company, it fails to show one against this efendant, for the reasons already given in respect to the'first.
The demurrer should have been sustained.
The order is reversed, with costs, and the cause remanded.