Edgeworth v. Wood

• Decision Date: 20 February 1896
• Parties: EDGEWORTH v. WOOD.
• Court: New Jersey Supreme Court

33 A. 940

58 N.J.L. 463

EDGEWORTH

v. WOOD.

Supreme Court of New Jersey.

Feb. 20, 1896.

(Syllabus by the Court.)

Action by Robert Edgeworth against Theodore F. Wood, treasurer of the United States Express Company. There was a verdict for plaintiff, and defendant sued out a rule to show cause why the same should not be set aside. Rule discharged.

Argued November term, 1895, before the CHIEF JUSTICE and LUDLOW and MAGIE, JJ.

Gilbert Collins, for the rule.

Flavel McGee, opposed.

MAGIE, J. This is an action in tort, in which plaintiff seeks to recover damages for injuries suffered by him by reason of his being run over, in a public street in Jersey City, by a wagon of the United States Express Company, negligently driven by a driver in the employ of that company. The jury having rendered a verdict for plaintiff, this rule to show cause why the verdict should not be set aside was allowed. Several reasons were filed in support of the rule, but only three have been urged in the argument. These only will be considered.

It is first contended that neither plaintiff's declaration nor the evidence produced by him discloses any liability on the part of Theodore P. Wood, treasurer of the United States Express Company, to answer for plaintiff's injuries, if inflicted as he claimed. Plaintiff claims to have made out his case in this respect, in the following manner: He produced proof that the United States Express Company was an association organized April 22, 1854, under the laws of New York, and having a principal place of business in the city of New York, and that Thomas C. Platt was its president, and Theodore F. Wood was its treasurer. He put in evidence chapter 258 of the Laws of New York for the year 1849, and sections 1919-1924 of the New York Code of Civil Procedure, whereby it appeared that any association thus organized was expressly authorized to sue and to be sued in the name either of its president or its treasurer for the time being. Upon this he contends that he is entitled to an action against Wood as treasurer, and as Wood is a resident of New Jersey, and was served with process here, that our courts, by comity, will recognize the liability to suit imposed by the laws of New York. In opposition to this, it is contended on the part of defendant that if it be conceded that our courts will, by comity, adopt and enforce remedies against such associations in the mode prescribed by the law of the state under which they came into existence, yet, if the law of this state has furnished a mode of procedure by which remedies against such associations may be enforced, the rule of comity ceases, and the mode of procedure provided by our laws must be pursued. The supplement to the practice act, approved May 23, 1890 (Laws 1890, p. 353), is conceived by counsel to have furnishished a mode of procedure under which this action could have been maintained against the United States Express Company. By that act it is enacted that any "unincorporated company, stock company or association" consisting of two or more persons united for business purposes, and having a recognized name, may be sued by that name in any action affecting the common property or the joint rights and liabilities of such company or association. Provision is made for the service of process and for the issue of an execution upon judgment in the same manner as upon judgments against corporations. If the United States Express Company is an unincorporated association, within the meaning of the act, it would seem that plaintiff could have brought his action under that act.

Questions concerning the nature of associations formed under the laws of New York, such as the United States Express Company, have been frequently considered in the courts of that state. The act of 1849 speaks of them as joint-stock companies or associations. By its certificate this company calls itself a joint-stock company. In the earliest case to which my attention has been directed, the question requiring solution was as to the relation between a shareholder and such a company. After an exhaustive review of the New York statutes on the subject, Judge Barnard declared that such companies had all the qualities of corporations, except that of having a common seal. His conclusion was that, in a controversy between a shareholder and the company, he was not to be considered as a partner in a partnership, but the courts must deal with his relation following the analogy of the law of corporations. Waterbury v. Express Co., 50 Barb. 157. In a later case, an action was brought by a shareholder in the same company against Fargo, its president, to recover for the loss of articles intrusted to it for transportation. The defense was that the owner of an interest in the company could not maintain such an action against it, which it was claimed was like an action by a partner against the partnership. The action was sustained by the court below. Westcott v. Fargo, 6 Lans. 319. Upon appeal the opinion was delivered by Dwight, one of the commissioners of appeal. Upon a review of the statutes, he declared that the president or treasurer of one of these joint-stock companies or associations was to be regarded, for the purposes of an action against the company, substantially as a corporation sole; that such companies possessed some powers and privileges of corporations not possessed by individuals or partnerships; and that an action upon a liability of the company might be maintained by one of its members. Westcott v. Fargo, 61 N. Y. 542. Later, the United States...