Warth v. Radde , 28 How. Pr. 230 ( 1864 )

Clerke, J.

This is an action, first, against Radde, in his individual capacity, under a contract made by him with the plaintiff and one Hiller, by which he, agreed to pay each of them, severally, on the sale of certain lands which he had recently purchased, twelve and a half cents for every acre which he should sell; second,- that .he should account for all the lands, moneys, &c., of the Pennsylvania Land and Farm Association which had come into his hands or under his control, the plaintiff being one of the shareholders, and that the value of plaintiff’s two shares be ascertained and paid out of the property and effects of the association.

The complaint also prays that the defendant, the Potter County Forest Improvement Company, account for all the property of the Land Association, which has come under its control, and alleging that Radde, the said Company, and the defendant in person, are acting in collusion to defraud the shareholders. It prays that they be enjoined from disposing of, or intermeddling with the property of the Land Association. This recital is sufficient to show that this action, in its present shape, cannot he maintained. If it were an action brought by a stranger against this unincorporated association for some claim against it, there would be no necessity to make the shareholders defendants, as-it is shown that the Association consists of more than seven persons, and Radde is sued as president and treasurer of it, as-well as in his individual capacity. But, as we have seen, the action is commenced to compel an accounting of the whole property, and an investigation into the whole affairs and business of the Association. It is, besides, an action for a fraudulent breach of trust against a person having the whole management and control of its property and effects. All the shareholders, therefore, should be made parties, or the motion should be commenced by the plaintiff, for the benefit of all others .standing in the same situation, as well as for himself. If such is necessary in an action of this nature against an incorporated association (Cunningham a. Pell (5 Paige, 607), it is still more necessary in an action against one that is not incorporated. (Code, § 119.)

The second cause of action is against Radde, under a contract made by him, in his individual capacity, for a specified sum of money. This cannot be joined with causes of action against him, as the president or trustee of the Association. (Code, 167.) Moreover, this claim against Radde alone is united with causes of action against him and others jointly. The causes of action must not only all belong to one of the enumerated classes under section 167, but all must affect all the parties to it. To employ the language of the court in Enos a. Thomas ( 4 How. Pr., 48), “ the causes of action to be joined must be in favor of all the plaintiffs and against all the defendants, and must belong to the same class.”

Judgment for the defendant Radde, with costs, unless the plaintiff» amend his complaint within twenty days, and pay ■costs of term.