103 Wis. 125 | Wis. | 1899
The complaint in this case appears to be free from novelty except for the magnitude of the fraudulent scheme set forth, its completeness, the boldness with which it was consummated, and the fact that a national bank was one of the guilty parties. But, waiving for the moment the question of whether a corporation can be charged as such in the form attempted in the complaint, no reason is perceived by reading such complaint why it is open to the objections raised by the demurrer. The well-known ability of the judge-who passed upon the complaint below precludes belief that he condemned it except upon some well-defined theory of insufficiency within the scope of respondent’s objections. What that theory was is not disclosed by the order, or in
With what has been said we may dismiss from consideration the doctrine of ultra vires as affecting this case, and it is so near akin to the idea that a corporation cannot commit or be liable for a tortious act that we will spend no time on that. Counsel for respondent freely admit that a corporation may be liable for a tortious act and as a co-conspirator in a scheme to commit fraud, but insist that unless the fraud be a wrongful means resorted to, to accomplish something which the corporation has a lawful right to do by lawful means, fraud cannot be attributed to it unless its officers or agents who assumed to act in its behalf were specially authorized to so act, and that a statement of the cause of action to remedy such a wrong requires the special authorization to be pleaded. We need not, for this appeal, determine whether the special authorization is necessary. If it be admitted, for the purposes of the discussion, that such is the case, yet the complaint charges that the corporation did the wrongful acts. That is repeated over and over again. How it became involved in the transactions complained of is a matter of proof in respect to which an issue need not necessarily be tendered by the complaint. If the allegations charging the corporation are open to any criticism, it is upon the ground of indefiniteness to be reached by motion and not by demurrer. From the allegation that the corporation conspired with Savage and Hayden, it is reasonably inferable that everything was done by its governing body necessary to the authority of those who assumed to act in its behalf. Necessary facts, reasonably inferable from those
The foregoing covers the ground upon which the demurrer was sustained below, so far as it can be discovered from appellant’s brief, but respondent calls our attention to several other supposed defects, most of which, we apprehend, did not receive attention below because not there suggested; yet as the demurrer must be sustained here if sustainable at all, though the point which ruled the matter in the original jurisdiction be untenable,— a practice quite unfair to a trial-court, though' too well intrenched in’ our system to be disturbed,— all the points made by respondent’s counsel have , received careful attention, yet without discovering any cause for condemning the complaint on any of the grounds stated, in the demurrer. The more important of respondent’s suggestions will be treated in detail.
It is said the complaint alleges that Savage and Hayden, as officers of plaintiff, bought the mill property for the nominal consideration of $13,000, while they paid the bank therefor only $3,000.; that the conspiracy alleged was to sell the property, and the bank is not shown to have been connected with that. That overlooks the matters of inducement pleaded, to the effect that the bank, at the time the alleged fraudulent scheme was made, owned the worthless mill property which it had acquired, in due course of business in efforts to collect a bad debt, and that it became a party to such scheme as a means to collect its money, and, incidentally, to obtain fraudulent gains, and that when the complaint comes down
Again, it is suggested that as to the mine the allegations regarding the bank’s connection with it are subject to the same infirmity as those in regard to the mill plant, and that, as defendants obtained the option on the mine before the organization of plaintiff was thought of, they had a right, without fraud, to sell it in good faith at an advance. What has been said as to the alleged connection of the bank with the fraudulent sale of the mill plant, applies equally as well to the sale of the mine. True, if defendants or the bank owned the mine, either one or all had a right, acting in
On that branch of the case which respondent treats as a separate cause of action to avoid a judgment, it is said that the neglect of Hayden, the secretary of plaintiff, to defend, was neglect of the corporation, and his knowledge its knowledge, therefore equity will not grant relief, citing Nye v. Sochor, 92 Wis. 40. That was a case involving the question of mere neglect. If an agent merely neglect the principal’s business, action or nonaction of the former constituting such neglect will be attributable to the principal. But the idea that an agent can collude with a third person to bring about such neglect for the purpose of obtaining the principal’s property for the joint benefit of the agent and such third
Further, as to the supposed separate cause of action, the point is made that under the Code of this state circuit courts have jurisdiction of what were formerly suits in equity, as well as actions at law, all distinctions between such suits and actions having been abolished, and that, under the new system, a direct action to open or vacate a judgment will not lie; that the only remedy is by petition at the foot of the judgment, and that in such a proceeding other parties may be brought in. To that point Stein v. Benedict, 83 Wis. 603, is cited. That was a case commenced in the circuit court to restrain the enforcement of a judgment rendered in another such court against one defendant who was really surety for another defendant who was solvent. There- was no question but that the judgment was properly rendered, and that the judgment creditor was legally and equitably entitled thereto. The complaint was merely of the inequitable use of the judgment in that threats were made to collect it out of property of the surety instead of that of the principal. The court decided that the action would not lie, first, because one circuit court will not restrain the enforcement of a judgment rendered in another circuit court.; second, because relief was obtainable by motion in the action in which the judgment was rendered. Said Justice PiNNEY, who wrote the opinion, in substance, the power of the court in which the judgment was rendered to grant the relief by petition, in cases Uke this, is wndoubted. The authorities cited to support that statement clearly indicate that the court had in mind only situations involving the inequitable use of a valid judgment, one free from attack originally, not one claimed to be invalid because of fraud in its rendition. Among the citations is Platto v. Deuster, 22 Wis. 482, where the wrong com
The last two .points need not necessarily have been treated, because, in our view of the complaint, the pleader did not attempt to, and did not, state more than one cause of action. Such points are discussed because the subject covered is likely to have some material bearing on further proceedings in the cause. There is but one subject of action, — the conspiracy to defraud and its consummation to the damage of plaintiff. All the allegations of fact are parts of the presentation of that one subject. The test of whether there is more than one cause of action stated or attempted to be stated in a complaint is not whether' there are different kinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication. Gager v. Bank of Edgerton, 101 Wis. 593; Bassett v. Warner, 23 Wis. 673. Measuring the complaint before us by that inflexible rule of equity pleading, it is easily seen that there is but one primary right which plaintiff is endeavoring to have vindicated, and that is the right to reimbursement for the damages which the corporation has suffered by the alleged consummated fraudulent scheme of defendants.
What has been said leaves nothing more that occurs to us which can be profitably discussed or need be decided. The complaint seems to be free from any of the objections urged against it by respondent and the demurrer to have been improperly sustained.
By the Court.— The order appealed from is reversed, and the cause remanded for further proceedings according to law.