Kimball v. Spicer , 12 Wis. 668 ( 1860 )

By the Court, Cole, J.

In the case of Downie vs. Hoover . (unreported), this court held that a subscription to the capital stock of a railroad company could be assigned and transferred by the company like any other contract, and that the assignee could recover the amount of money due upon the same from the stock subscriber. This fully disposes of the first objection to the complaint in this case, taken in the demurrer.

The second objection, that in the 18th folio of the complaint it alleges that the Kenosha & Rockford R. R. Co. is the plaintiff in the action, while it appears from other parts of the complaint and from the summons that Kimball was the plaintiff, certainly has no weight. We agree entirely with the view of the circuit court upon this point, that those words were mere surplusage and should be disregarded. It is easy to perceive that it was an oversight in the pleadoj.’, in not striking out those words from the printed form. But they could do no harm. Neither do we consider the third objection to the complaint well taken. The complaint states that the corporate name of the Kenosha & Beloit R. R. Co. was changed by an act of the legislature to the name of the Kenosha & Rockford R. R. Co.; and it is insisted that there should be an averment that the corporation by the latter name succeeded to all the rights and liabilities of the company by the former name. The circuit court seemed to think some such averment necessary, and upon that ground sustained the demurrer, with leave to amend. It appears to us, however, that such an averment would be a mere conclusion of law, and not a traversable fact, which should be stated in the complaint. It is clear that the effect of the statute was merely to change the name and not the identity of the corporation, and of course such legislation could not change, alter or vary the legal rights and liabilities of the company. But to aver this would be to plead a rule of law.

A still further objection has been taken to the complaint, namely, that Kimball could not maintain the action for the benefit of the bank. Upon this point the complaint allege*, in substance, that the Kenosha, Rockford & Rock Island R. R. Co., by its duly authorized agent, and in pursuance of a resolution of tbe board of directors, for value, &c., sold, assigned and transferred to tbe plaintiff in tbe action the stock subscription of tbe defendant, who from thence hitherto has continued to hold, own and possess the same for the benefit of the Kenosha County Bank, and is entitled to the sum of money due and owing from the defendant thereon, for the benefit of the Kenosha County Bank aforesaid. Now since section 12, chapter 122, E. S., 1858, requires every action to be prosecuted in the name of the real party in interest, it is contended that this action should have been brought in the name of the bank, instead of that of Kimball. But we are of the opinion that the allegations in the complaint bring the case strictly within section 14 of the same chapter, and enable Kimball to maintain the suit. Section 14 provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted; and a trustee of an express trust, within the meaning of the section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. Now since the complaint alleges that the stock subscription of the defendant was transferred and assigned to Kimball for the benefit of the bank, this constitutes him “a trustee of an express trust,” within the meaning of the above section: (See Grinnell vs. Schmidt, 2 Sandf. R., 705.)

The order of the circuit court, sustaining the demurrer, must be reversed, and the cause remanded for further proceedings.