73 N.Y. 571 | NY | 1878
The plaintiff sues as receiver of "The Excelsior Hay Carrier Company" to set aside and vacate a judgment recovered by the appellant Delaney against the company upon the ground that it was without consideration, obtained by collusion with the officers of the company in fraud of the rights of creditors. The action was properly brought in the name of, and by the receiver as the representative, as well of creditors, as the debtor corporation. It was his duty in behalf of the creditors to resist the judgment and assert the rights of creditors against the fraudulent or illegal acts of the corporation by which their rights were affected. (Gillett v. Moody, 3 Comst'k, 479; Bate v.Graham Jordan, 1 Kern., 237; Talmage v. Pell, 3 Seld., 328; Hackley v. Draper,
If the complaint was technically defective, the objection should have been taken by demurrer, or otherwise, before issue upon the facts. (Bate v. Graham, supra; Lounsbury v. Purdy,
The recovery was for moneys claimed to be due upon the sale of the right secured by patent to manufacture, use, and sell to others "Smith's Excelsior Hay Slings and Carrier." The agreement for the sale and the sale was evidenced by three several instruments, all bearing the same date, and which are found to have been executed at the same time, and *576
which must, therefore, be read and construed as one instrument, and as together, constituting the agreement between the parties. (Marsh v. Dodge,
In form it was a sale of the patent for $25,000, but the payment of all but the sum first paid was dependent upon its being made from one-half of the proceeds after the company had been fully reimbursed for the amount first advanced. When the undertaking of the company was reduced to form it was merely a consent to pay to the amount of one-half the proceeds of the sales, or that Delaney might retain such a portion of the funds, to a given amount, after the company should be reimbursed and indemnified for all that it had paid. If an absolute obligation on the part of the company to pay the whole $25,000 had been intended, it would have been so stated, and the right to a reimbursement of the portion actually paid, before Delaney could recover anything, would not have been secured; neither would the right of Delaney, after the reimbursement of the company, have been limited to one-half the proceeds of sales. The parties provided, in express terms, in what way and from what sources the $14,200 should be paid, and a promise to pay in any other way will not be implied. A promise to pay on request, as now sought to be implied, would be entirely inconsistent with the terms of the contract and the mode of payment provided, and the rights of the parties secured by the instrument. The learned judge was right in his determination that there was nothing due Delaney from the corporation, on the contract, at the time of the commencement of his action, and that there was no cause of action. There was no finding, or any request to find, that the written instruments in evidence did not constitute the agreement between the corporation and Delaney, or that there was any other or different agreement in respect to the payment of the consideration for the sale of *578 the rights transferred than was evidenced by the paper writings, or that they did not contain the agreement, and all the terms of the agreement as finally consummated. There was no evidence to impeach the written instruments, or discredit them as evidence of the actual agreement of the parties. The evidence warranted the finding as a fact that the judgment was suffered to pass against the company by default, by collusion of the officers and trustees of the company with Delaney. The service of the summons and complaint was brought to the notice of the board of trustees by the officer upon whom they were served, and with the assent of the board delivered to the attorney of Delaney to protect the interests of the company. It was but a re-delivery of the process to the plaintiff himself, as his attorney was but his alterego, so that the trustees and representatives of the stockholders put the defense of the action, and the protection of the rights of the corporation, in the hands of the plaintiff in the suit, its assailant, who was also one of the trustees. There could be no better or higher evidence of the want of fidelity to their trusts, on the part of the officers of the company, or of their complicity and collusion with Delaney. The court having jurisdiction of the cause of action, and of the parties, very properly not only granted the particular relief sought, and vacated the judgment, but also passed upon the merits of the claim of Delaney, and definitely disposed of it. The court necessarily, in giving judgment for the plaintiff, interpreted the agreement of Delaney and the corporation, and adjudged that there was no debt due from the latter to the former, or any obligation to pay the amount for which the recovery was had, and such adjudication of matters directly in issue would have barred any future action against the plaintiff for the recovery of the amount claimed, and all proceedings against the funds in his hands. But were it otherwise the court, in finally and formally adjudicating upon the validity of the claim, and perpetually restraining the defendants from enforcing it against the plaintiff as receiver, only recognized and acted upon the well-established and familiar rule that courts *579 of equity, having jurisdiction of the person and of the subject-matter of a litigation for one purpose, will retain it for all purposes, and grant such relief as is called for by the whole case. It is not the practice of the court to grant partial relief, leaving an open door for further litigation, when full relief can be granted, and every question settled in the one action. (Story's Eq. Jur., §§ 64, et seq. 71; Armstrong v.Gilchrist, 2 J. Cas., 424; King v. Baldwin, 17 J.R., 384.)
The action was for equitable relief, and properly tried by the court. But if a trial by jury was the right of either party, it was waived by not being demanded at the proper time.
The judgment must be affirmed.
All concur.
Judgment affirmed.