George v. Benjamin

• Decision Date: 11 October 1898
• Citation: 76 N.W. 619,100 Wis. 622
• Parties: GEORGE v. BENJAMIN.
• Court: Wisconsin Supreme Court

100 Wis. 622

76 N.W. 619

GEORGE

v.BENJAMIN.

Supreme Court of Wisconsin.

Oct. 11, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by John S. George against H. M. Benjamin. From an order entered on overruling a demurrer to the complaint, defendant appeals. Reversed.

This is an action at law, brought by respondent on behalf of himself and others, to recover the sum of $4,900, claimed to be due on a certain contract, under circumstances hereinafter detailed. The complaint contains seven causes of action, the statement of one being all that is necessary for the purpose of this suit. The facts alleged are substantially as follows: On July 2, 1892, the plaintiff, defendant, and 29 other persons entered into a written agreement, as follows: “Know all men by these presents, that we, whose names are hereto subscribed, for and in consideration of the sum of one dollar to each of us in hand paid by the other, the receipt whereof is hereby confessed and acknowledged, and for and in consideration of the prospective profits to be realized from the purchase, management, and sale of about 1,700 acres of land under contract of purchase for our benefit at Barrington, in the state of Illinois, and for and on account of other good and valuable considerations to each of us paid by the other, the receipt whereof is hereby confessed and acknowledged, we do hereby stipulate, covenant, promise, and agree, each with the other, as follows: 1st. That there shall be organized an association to be known as the Barrington Land Company, or some other appropriate title to be hereafter mutually agreed upon, for the purchase, management, and sale of the land above referred to at Barrington, in the state of Illinois; that said association shall be controlled and managed by a board of directors, and proper officers to be selected from the parties in interest therein. 2nd. That prior to the perfecting of the organization aforesaid, that each of us shall contribute towards the preliminary expenses thereof, and to provide for whatever money shall be necessary, as down payments to secure the title to said property, such sums from time to time as may be necessary therefor. 3rd. That each of us shall at once contribute, towards the purpose specified, the sum of three hundred (300) dollars, and that proceedings will be taken, as soon as possible, to perfect said organization and get the same in running order; and that in the future, from time to time, as the same shall be needed, we each hereby stipulate, promise, covenant, and agree, on account of the considerations herein expressed, to pay such sum or sums as shall be needed for future payments on said property as the same are demanded and required by the parties in interest herein. These agreements and stipulations are made upon the understanding that there is now under contract of purchase, as aforesaid, 1,687 acres of land, at an average cost of $117.03 per acre.” The complaint further states that the parties to this contract did not become incorporated, but by agreement became a voluntary association under the name of the Barrington Land Syndicate; that Burton Johnson, one of the parties to the agreement, was agreed upon as trustee to hold the title to the land mentioned, who accepted the trust, and therefore, in writing, declared a trust in favor of each of the parties to the extent of 1/31 interest in the land; that each was to contribute towards the purchase price in accordance with his interest; that defendant accepted the declaration of trust, and had notice of and participated in the meetings of the syndicate; that, as payments became due on the land contracts, meetings were held, of which the defendant had due notice, and such assessments were made on each member, from time to time, as were deemed necessary to meet the same; that all of the parties interested, except the defendant and a few others, have paid the calls, and that a sum exceeding $125,000 had been paid in and used for the benefit of all concerned; that the calls made were necessary and needed to meet the demands against the syndicate on the contracts for the land involved, and necessary in order to prevent loss and forfeiture of the contract, and that the amount demanded from the defendant was his proper proportion of the same; that eight calls had been made, and defendant had refused to pay all but the first one; that on January 19, 1897, the plaintiff was elected president of the syndicate, and at the same time a treasurer and secretary were elected; that at a meeting on January 14, 1897, of which all members had written notice, a resolution was adopted, authorizingand directing the plaintiff to take legal proceedings in court in his individual name, for and in behalf of himself and his associates in said enterprise, against the defendant, to collect the several amounts due upon the calls or assessments theretofore made. Then follows an allegation “that the question involved in this action is one of a common or a general interest to many persons, and that the parties intended and associated herein are very numerous, and that many of the parties interested here are not residents of the state of Wisconsin, but are residents of other states; that it is impracticable to bring all of said persons before the court; that this action is brought in the name of the plaintiff, one of said parties, at the instance and for the benefit of the whole, as in such cases is duly provided by statute.” The defendant interposed a demurrer to each cause of action on the grounds, among others, that the plaintiff had not legal capacity to sue; that there was a defect of parties plaintiff and defendant; and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and, from the order entered thereon, this appeal is taken.

Timlin & Glicksman, for appellant.

O. T. Williams and Coleman, Rogers & Mann, for respondent.

BARDEEN, J. (after stating the facts).

Two questions are involved on this appeal: (1) Is there a defect of parties plaintiff? (2) Does the complaint state a cause of action?

1. The plaintiff seeks to justify the maintenance of this action by himself, and on behalf of others, under Rev. St. § 2604. This section reads as follows: “Of the parties to the action, those united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” As a reason why this action is brought in the name of the plaintiff alone, the complaint alleges that “the question involved in this action is one of a common or general interest to many persons, and that the...