Sullivan v. Sullivan Mfg. Co.

• Citation: 14 S.C. 494
• Decision Date: 05 March 1881
• Docket Number: CASE No. 982.
• Parties: SULLIVAN v. SULLIVAN MANUFACTURING COMPANY.
• Court: United States State Supreme Court of South Carolina

14 S.C. 494

SULLIVAN

v.SULLIVAN MANUFACTURING COMPANY.

CASE No. 982.

Supreme Court of South Carolina.

Mar. 5th, 1881.

1. Demurrer to complaint upon the ground that several causes of action have been improperly united, does not raise the question whether the plaintiff, under the facts stated, is entitled to any or all of the relief which he demands.

2. Therefore, where two causes of action were not improperly united, the demurrer was overruled, without any inquiry as to the different kinds of relief demanded, or whether such relief was appropriate to the case made by the allegations of the complaint.

3. There is no misjoinder of causes of action where a single action is brought upon a note and upon an account, against a debtor corporation, and also against its directors, who are made, by the act of incorporation (under certain contingencies alleged in the complaint to have happened) jointly and severally liable for all debts of the corporation.

4. The liability of the directors under this statute-the general incorporation act, General Statutes, Chapter LXIV.-arises ex contractu, not ex delicto.

5. The permission given to creditors by Section 35 of this chapter, to sue the corporation and the directors, separately, does not forbid their joinder in one action.

6. The action may be single, although, under the provisions of Section 33, the liability of the corporation and of the directors, may not be co-extensive; the judgments may be separate, if necessary.

Before THOMSON, J., Greenville, April, 1880.

Action commenced February 17th, 1880, by Hewlet Sullivan against the Sullivan Manufacturing Company, William D. Sullivan, assignee, and G. W. Sullivan, Sr., G. W. Sullivan, Jr., D. D. Moore, and P. P. Cureton, as directors. The case is sufficiently stated in the opinion of this court.

Mr. M. F. Ansel, for appellant.

The Court of Equity has no jurisdiction in this case, and this objection never comes too late. Rich. Eq. Cas. 249; 14 Rich. Eq. 154. It is of no consequence in what way this objection is taken. Chev. 5. The plaintiff cannot sue here, because he has no judgment; he has not exhausted his legal remedies. 1 S. C. 96;14 Rich. Eq. 154; 2 McC. Ch. 416; 4 Rich. Eq. 198;1 S. C. 192;12 S. C. 461;13 S. C. 449. The assignment by the corporation does not dissolve it, nor put it upon the footing of a person deceased. Burr. on Assign. 85, 401, (3 d ed.) Here several causes of action have been improperly joined together. Wiles v. Suydam, 64 N. Y. 173;53 Barb. 238-245;Pomeroy's Rem., §§ 474-5; 1 N. Y. 47-76;35 N. Y. 412.

See 14 Stat. 299, § 35, and Code, § 190.

Messrs. W. E. Earle and J. S. Cothran, same side.

Mr. W. H. Perry, contra.

The opinion of the court was delivered by

MCIVER, A. J.

This was an action on a note made by the defendant company to the plaintiff, and on an account for cotton sold and delivered by the plaintiff to said company. The plaintiff, in his complaint, alleged the creation of the corporation under an act entitled “An act to regulate the formation of corporations,” passed December 10th, 1869, which is incorporated in the General Statutes, Chapter LXIV., p. 356; the making of the note; the sale and delivery of the cotton; that the corporation is insolvent; that the defendant, George W. Sullivan, Sr., claims that the corporation is indebted to him in a very large amount, which claim, the plaintiff alleges, is fraudulent, pretensive and without consideration; that the defendants named as such are directors of the corporation; that the officers of the corporation have executed a deed of assignment of all of the property of the corporation to the defendant, William D. Sullivan, which is alleged to be fraudulent, null and void, and made with intent to defraud the creditors of said corporation; that the defendants who are named as directors, by virtue of certain acts and omissions set out in the complaint, have become jointly and severally liable for the debts of the corporation, and that the members or stockholders of said company have likewise become jointly and severally liable for the debts of the company, by virtue of certain provisions of the act under which the company was formed, and that the provisions of the charter of said company have been violated in many other particulars not specifically set forth. The plaintiff then demands judgment: First. Against the company for the amount due on the note and account. Second. Judgment against the defendants named as directors for the said amount. Third. That the corporation be dissolved. Fourth. That the assignment to William D. Sullivan be set aside. Fifth. That the company and its officers be restrained from exercising any of its corporate rights, from collecting any debts due to or paying any debts due by said company, or in any way disposing of the effects of the company. Sixth. That a receiver may be appointed. Seventh. For such other and further relief as may be just. To this complaint separate demurrers, accompanied by separate answers, have been filed by the corporation, by George W. Sullivan, Sr., and by George W. Sullivan, Jr.; all of the demurrers being upon the ground that several causes of action have been improperly united in the complaint. The Circuit judge overruled the demurrers, and from his judgment this appeal has been taken.

It will thus be seen that the only question before us is, whether the demurrers were properly overruled, and, therefore, many of the questions discussed in the argument growing out of the merits of the case, are not properly before us and cannot now be considered.

The sole question raised by the demurrers is, whether several causes of action have been improperly joined in the complaint? and to that question we propose strictly to confine our attention. To determine this question it will be necessary to inquire, first, what are the causes of action in this case? and next, whether they are such as can be properly joined? Pomeroy, in his work on Remedies, after adverting to the difficulty of giving any precise definition of the term “cause of action,” proceeds, in Section 453, p. 487, to say: “Every judicial action must, therefore, involve the following elements: A primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty. *** Of these elements the primary right and duty and the delict or wrong combined, constitute the cause of action in the legal sense of the term, as used in the codes of the several states.” And again: in Section 519, p. 555, he says: “The cause of action, therefore, must always consist of two facts. First. The plaintiff's primary right and the defendant's corresponding primary duty. *** Second. The delict or wrongful act or omission of the defendant by which the primary right and duty have been violated. *** The primary right and duty, by themselves, are not the cause of action, because, when existing by themselves unbroken by the defendant's wrong, they do not give rise to any action. *** Much less can the delict or wrong by itself be the cause of action, because, without the primary right and duty of the parties to act upon, it does not create any right of action or remedial right.”

In Bliss on Code Pleading, § 113, it is said: “We have defined an action to be a proceeding for the prevention or redress of a wrong. The cause of action, then, is the wrong. *** The wrong may be done by the denial or by the refusal to respond to an obligation.” And, in Section 126, the same author says: “The cause of action has been described as being a legal wrong committed against, or an infringement of, some legal right of the complaining party.” Both of these writers on the code warn us, in considering questions like the one now under consideration, against confounding “the cause of action” with ““the object of the action.” The latter is confined to the relief sought, and it is very obvious that for a single cause of action different kinds of relief may be obtained. It is especially important, in this case, to keep this distinction in mind; for, as the Circuit judge has well said: “An examination of the grounds of the demurrers will disclose that the objections are not so much to causes of action improperly united as to several but connected modes of relief sought by...