112 Va. 499 | Va. | 1911
delivered the opinion of the court.
A. L. Swneeney filed the bill in this cause against S. L. Foster, W. T. Simcoe and W. C. Cobb, of Norfolk, Va., and Frank T. Zell and J. W. Van Dyke, of Philadelphia, Pa., as defendants. Foster, Simcoe and Cobb, upon whom there was personal service of process, demurred to the bill on a number of grounds, which demurrer was sustained; whereupon complainant filed his amended bill, to which there was a demurrer by the same defendants, which likewise was sustained, and the amended bill dismissed, to which order dismissing the amended bill this appeal is taken. The defendants, Zell and Van Dyke, being nonresidents of the State of Virginia, have never been personally served with process to answer either the original or amended bill, nor have they ever appeared in this cause.
The following statement of the facts to be gathered from the allegations of the amended bill is sufficient to enable us to pass upon the demurrer thereto sustained by the trial court, and which ruling is the only assignment of erro'r requiring our consideration, towit:
The Bay Shore Terminal Company, a local street-car company operating in and about Norfolk, Va., had created a mortgage on its property to secure $500,000, the amount of its negotiable coupon bonds, $178,000 of which had been issued and were in the hands of the public. It had also made notes, aggregating an additional large sum, which were secured by the deposit of a large portion of the remaining unissued bonds, as collateral security. Being unable to meet its obligations, the road was placed in the
The amended bill of Sweeney alleges that subsequent to the appointment of the committee he entered into an agreement wdth them, dated September 12, 1905, whereby he was given the right to purchase all the bonds lodged with the committee at a certain stipulated price, and that after éntering into this alleged contract he entered into negotiations with one Charles A. Burr, of Philadelphia, Pa., whereby Burr was to procure the capital, and in consideration thereof was to have an interest in any profits that might be made in the transaction, and to whom the contract was assigned as an evidence of good faith. It is then alleged that after the assignment of the contract to Burr, and after the latter had promised all parties in interest, including Sweeney, to carry out the contract, he put off the matter from time to time and finally proved untrue to the employment, in that he undertook to purchase the ■interest of the individuals who had pooled their bonds, and thereby sought to render the contract between them and the complainant,' Sweeney, impossible of fulfilment; that subsequently, and after the discovery of Burr’s bad faith by Sweeney (though the time is not stated), Burr reassigned the contract to Sweeney; and then according to the allegations of the amended bill the complainant Sweeney’s alleged contract was never carried into effect, but in the latter part of January, 1906, the committee disposed of the bonds to Edward B. Smith & Co., of Philadelphia, who
It further appears from the amended bill that in April, 1906, Sweeney assigned his contract with the committee to one Frank D. Zell, as agent for John W. Van Dyke, and received a large sum of money in payment on the contract of assignment, and that subsequently, while the title to the contract was still vested' in Zell, Sweeney brought suit in a Federal court in Pennsylvania against Smith & Company as well as against Zell and Van Dyke, the purpose of which was to require Zell and Van Dyke, for reasons set out, to reassign the contract — that is, the contract between Sweeney and the committee — to Sweeney, to enable the latter in the same suit to. obtain a decree against Smith & Co. for certain alleged profits they were supposed to have made out of the bonds purchased from the committee. Smith & Co. and Zell and Van Dyke demurred to that bill, and the demurrer as to Smith & Co. was sustained, upon the ground that there was no legal liability upon them to Sweeney; and their action in the purchase of the bonds was fully approved, which ruling was affirmed upon appeal by the United States Circuit Court of Appeals of the Third Circuit and also by the United States Supreme Court,' in denying the application of Sweeney for á certiorari. It is not necessary to state the grounds upon which that suit was disposed of. The printed record in the case is made
The relief sought by the amended bill in this cause is dual in character. First, it is sought to obtain a reassignment of the contract from Zell and Van Dyke to Sweeney, the complainant; and, secondly, upon the reassignment of the same, or upon an adjudication that the assignment was void, to recover damages from Foster, Simcoe and Cobb, composing the committee who made the said contract with Sweeney, upon the ground that Sweeney had contracted to purchase from the committee the bonds of the Bay Shore Terminal Company, hereinbefore mentioned, and the said committee had subsequently sold the said bonds to Smith & Co. at $400 for each $1,000 bond, and they had received $1,146.65 in the settlement of the purchase of the Terminal Company’s property, whereby he, Sweeney, was entitled tp the difference of $746.65 on each bond by way of damages. That is the sole relief that Sweeney asks in this suit as against the defendants Foster, Simcoe and Cobb, a claim which is purely legal in character, without any sort of equitable feature attached thereto; wherefore, if the said committee were in any sense liable to Sweeney, which they of course deny, he could sue them at law for the amount of his claim as specifically set out in the amended bill.
Section 2415-a of the Code, relied on by appellant, has no application to the case. The provision of that section is, that when the legal title to any claim or chose in action, for the enforcement of the collection of which a court of equity has jurisdiction, is in one person, and the beneficial equitable title is in another, the latter may either maintain a suit in the name of the holder of the legal title, for his use and benefit, or in his own name, to enforce collection of the same, and in -either case the beneficial equitable owner shall be deemed the real plaintiff, and shall be alone liable for costs. Now in this case not only the legal title to the contract upon which appellant brings this suit has been transferred, but also the equitable title, to Zell and Van Dyke, who have never appeared in this cause or had legal process served upon them to appear; and as the holders of said contract, as plainly appears upon the face of appellant’s bill, they have refused to reassign to the appellant. Wherefore the respective rights of the present and the former holders of the contract are necessarily involve'd in this litigation, and must necessarily be determined, but before there can be any adjudication of the liability of the appellees, Foster, Simcoe and Cobb, the rights of Zell and Van Dyke under the contract in question have first to be determined, and they are not before the court or within its jurisdiction. There is nothing in the bill to connect the appellees with the transactions that resulted in the assign
. The case, therefore, comes plainly within the control of the decision of this court in Bonsal v. Camp, 111 Va. 595, 69 S. E. 978, where it appears from the opinion of Keith, P., that Camp filed his bill in the Circuit Court of the city of Norfolk against Bonsai, in which he prayed the rescission of a deed made by Bonsai to him for a tract of land in the State of North Carolina, upon the ground that he was deceived into making the, purchase by fraudulent misrepresentations upon the part of Bonsai and his agent, one Brewer; that Bonsai, the sole defendant, demurred to the bill because Brewer was not made a party defendant, and also answered the bill. The- bill further sets out the grounds upon, which the complainant sought the relief he asked, but it was made to appear that Brewer became, under the contract of sale, entitled to one-twentieth part of the price of the land sold by Bonsai to Camp. Brewer was not made a party defendant to the bill, and, therefore, never appeared in the cause. Camp was a resident of Florida, Brewer a resident of Tennessee, Bonsai a resident of Virginia, and the subject matter of controversy was situated in the State of North Carolina. In disposing of the demurrer of Bonsai to the-bill, the opinion by Mr.' Justice Miller, in Barney v. Baltimore City, 6 Wall. 284, 18 L. Ed. 825, is quoted with approval, as follows: “There is a class of persons having such relations to the matter in controversy, merely formal or otherwise, that while they may be called
Affirmed.