Cohen & Co. v. Wolff & Buchwald

Simmons, Justice. The error complained of was the sustaining of a demurrer to the equitable petition filed by the plaintiffs below. The substance of the petition is set forth in the reporter’s statement. If the allegations of this petition be true, a plainer or more palpable case of fraud it would be difficult to find. For the purposes of the demurrer, these allegations must be taken as true; but in so doing, we are not to be understood as expressing any opinion as .to the real merits of the controversy as the same may appear when the case is tried. In view of the charges that the firm of Wolff & Buchwald, being insolvent, fraudulently procured for themselves a false commercial rating, and upon the credit thus obtained bought goods from various parties, never intending to pay for the same; and that 208 this firm fraudulently mortgaged the goods so purchased to the other defendants, who had conspired and colluded with the firm in preparing and carrying out the fraudulent scheme by which the goods were obtained, it cannot be seriously contended that there was any misjoinder of defendants. Each and all of the defendants were necessary and proper parties to any proceeding instituted for the purpose of setting aside the frauds complained of. It seems that the court sustained the demurrer mainly upon the idea that there was a misjoinder of plaintiffs. Under the particular facts of this case, we find no difficulty in reaching the conclusion that, although the fraudulent firm had dealt separately with the petitioners and had purchased goods from them respectively in different parcels, these petitioners had a common interest in setting these fraudulent purchases aside. They were the common victims of a general scheme of plunder, and each had a direct and mutual interest in defeating the same. This the petition sought to accomplish, and as an appropriate means looking to this end, it prayed for a recovery by each petitioner of his own goods on the ground that, because of fraud in the purchase, the title had never passed iuto Wolff & Buchwald. We see no reason why these petitioners could not thus join in an action for the purpose stated, because they certainly had a common interest in setting aside the fraudulent mortgages which stood between each and all of them and the recovery of their goods. These mortgages were the common enemy of them all, and against the mortgages they certainly had a common cause of combat. We think there is no doubt that the court, at the instance of the petitioners complaining jointly, could, under the facts alleged, take jurisdiction of the case for the puipose of declaring "the mortgages void; and it seems in perfect accord with the rules of equity pleading and practice, that, having ob 209 iained jurisdiction for this purpose, tb.e court could properly take charge of all the matters in controversy, and grant to each of the plaintiffs appropriate relief from the consequences of the fraud perpetrated by the defendants, in pursuance of one and the same design, and affecting alike all of the petitioners. "We are therefore fully satisfied there was no misjoinder of plaintiffs. The mortgagees were, as such, necessary and proper parties, because they were entitled to be heard upon the question of setting the mortgages aside; and moreover, it was alleged, as has been seen, that they were co-conspirators with Wolff & Buchwald from the very incipiency of the fraudulent scheme. The court was wrong m sustaining the demurrer to the petition. This case ought to be tried, and the real truth of it. developed. If the plaintiffs can establish their allegations by proof, they are undoubtedly entitled to relief. Judgment reversed.