Perkins v. Church

Ingraham, J. Whatever may be the result of this case, on the trial, I am satisfied the defendant cannot avail himself of the matters of defense set up b.y him on this demurrer. 1. In order to sue a stockholder of an incorporated company, it is not necessary to aver that the corporation was insolvent, except in those cases in "Which the charter places the liability subject to the existence of such insolvency, or requires the creditor to exhaust his remedy against the corporation before proceeding against the stockholder. ■ In other cases, when a debt is unpaid at maturity, there is nothing to prevent the creditor from proceeding to 'collecthis claim either from the corporation or those who by their charter are made responsible for the debts without any limitation. 2. The contract of liability as set out in the complaint is not necessarily illegal. What powers the bank possessed by virtue of its charter, is not disclosed in the complaint. In order to bring the charter before the court, it must be proved in the ordinary way. That cannot be on demurrer. Even if the bank had no authority to agree -to consigh goods for sale, and enter into that kind of business, it would not follow that the contract was absolutely void. It might be that the bank had goods in possession, legally received in payment of debts, and this mode of sale might be legally resorted to by them and the contract be valid; Such matters can only properly be examined on a trial, where evidence can be received to show the circumstances attending the transaction. bio. such objection could be made to a part of the plaintiffs' claim, for money lent and advanced to the bank, which was a legitimate business, and which the plaintiffs could recover whether the other part of their claim was valid or not. As the demurrer is to the whole complaint, it could not be sustained on this ground.' [87] [New York Special, Term, December 23, 1859. 3. I am of the opinion that the bank was not a necessary party. It is only where the parties are united in ihterest that they must be brought in by the plaintiffs. In other cases, if their presence is necessary to a complete determination of the controversy, the court may order such to be made parties, but that is no ground of demurrer. As to other stockholders, there is nothing in the pleadings from which it can be ascertained that there are any, or who they are, if any. I think the complaint shows a cause of action. Whether as to the whole claim or not, is immaterial. The claim for money lent and advanced is a legal claim, not subject to any of the objections stated, and is one which, even if on the trial the other claim should be declared void} coúld still be recovered. The plaintiffs are entitled to judgment on the demurrer, with leave to the defendant to_ answer, on payment of costs. Judgment accordingly. Ingraham, Justice.]