Smith v. Chicago & North-Western Railway Co.

19 Wis. 326 | Wis. | 1865

By the Court,

Cole, J.

The points decided on the former appeal, so far as they are applicable to the case before us, are not now open for discussion, and will not be considered. We then thought the complaint defective because it did not allege that the plaintiff had ever demanded or been refused the rights of a stockholder in the new company, in pursuance of the agreement therein contained, or that the new company had ever assumed his debt against the Chicago, St. Paul and Fond du Lac R. R. Co., as authorized by chap. 108, Pr. Laws of 1859. This defect has been fully supplied in the amended complaint, as an examination .of it will abundantly show. In the original complaint it is stated generally, among other matters, that a certain understanding and agreement was come to and had by and between the Ch., St. P. & F. du L. R. R. Co., the holders of the bonds secured by the mortgage therein named, and trustees of the bondholders, to the effect that a sale of all the said railroad franchises and property described in the mortgage should be had for the benefit of said company, its stockholders and creditors; and that thereupon there should be a reorganization of the company under another name, and that the stockholders of said mortgagor company, and its unsecured creditors, should become stockholders in such reorganized company, &c.; and the complaint also showed that a reorganization was had in pursuance of this agreement and understanding. In the amended complaint, the agreement, or “ the plan ” for the reorganization, is set out in haec verba. Erom this “ plan ” it appears that certain things were to be done in order to entitle a stockholder or creditor to the benefit of its provisions. Now it is objected that the amended complaint fails to show that the plaintiff has complied with the conditions of the “plan,” and that it should show distinctly that he acceded to it, and specially state the time and manner of performance. The allegation in the complaint is as follows: “ Tbe said plaintiff further shows that he did and performed all the things, and kept and observed all the conditions by him to be kept, observed and performed, to entitle him to stock in said Chicago & North Western Railway Company as an unsecured creditor of said Chicago, St. Paul & Fond du Lac Railroad Company, under and in pursuance of the agreement contained in said plan in that behalf.” There is a, general demurrer to the amended complaint, upon the sole ground that it does not state facts sufficient to constitute a cause of action. The question is, whether these general allegations of performance on the part of the plaintiff of all acts and things necessary for him to do in order to be entitled to the benefits of the plan, are not sufficient on this demurrer. A majority of the court are of the opinion that they are. Our statute has made an important change in respect to pleading performance of conditions precedent, by providing that it shall not be necessary to state the facts showing such performance, but that it may he stated generally that the party duly performed all the conditions on his part. Sec. 24, chap. 125, R. S. 1858. Now where this easy mode of stating performance of all acts essential to give a right of action is adopted — a method of pleading expressly sanctioned by the above provision of law — it would seem as if it should be held good on general demurrer. It is not necessary to decide whether it is sufficient under any possible form of objection, but if there are any defects in the complaint “ they are not so substantial in their nature or so fatal in their character” as to be reached by a general demurrer. Morse v. Gilman, 16 Wis., 504; Richards v. Edick, 17 Barb., 260; Graham v. Camman, 5 Duer, 697. If the plaintiff had attempted to state the acts done by him in complying with the plan, then perhaps he would be required to show a strict performance. Hatch v. Peet, 23 Barb., 575. But this he did not do, but pleaded performance generally. Therefore the majority hold that the complaint is good upon this demurrer.

There are two causes of action set forth in the complaint. As a consequence, if one is held to be sufficiently stated, the demurrer was properly overruled. The last cause of action is founded upon an agreement made and entered into by the Chicago, St. Paul and Fond du- Lac Railway Company to indemnify the plaintiff against all liabilities incurred by him as surety, indorser, or guarantor of the Rock River Yalley Union Railroad. It is alleged that the Chicago, St. Paul and Fond du Lac company did not indemnify and save him harmless from certain j udgments therein specified. In the former-opinion it was stated that this showed a good claim against the old company, although it appeared that the plaintiff had not paid the judgments recovered against him. The distinction taken by the cases was noticed, between an indemnity against damages on a liability and an indemnity against the liability itself ; and the second cause of action stated in the complaint was held to come within the latter class of cases. It is contended, however,' that there is really no sound distinction in principle between an undertaking to indemnify against a liability and one to indemnify against any damages or expense, and that compensation should only be given for actual loss. But that there is very high authority for the distinction cannot be denied. See cases cited by Sedgwick on Damages, chap. 11; Warwick v. Richardson, 10 Mees. & Wels., 284 This question, it is manifest, is not fairly raised upon this appeal, and I shall therefore enter upon no further discussion of it. I will merely add that, after an examination of the authorities, I find the former opinion on this point well sustained by many carefully considered cases, and I am not. now disposed to modify it.

It is claimed that this court should order judgment for the amount asked in the complaint, upon affirming the order of the court below. We think, however, that under the circumstances the appellant should be permitted to answer upon paying costs in the circuit on the demurrer, although the time originally given to answer has already expired.

The order of tbe circuit court overruling tbe demurrer is affirmed, and the cause remanded with this direction.

Justice Downer dissents in this case.