Drake v. New York Iron Mine

Headnote

Action on Notes—Pleading—Defenses. In a suit on notes given by W. in the name of a corporation, without authority from the corporation, both W. and the corporation were made defendants. W. was a large stockholder in the corporation; and the complaint averred that he assigned certain dividends therein, by charging the notes against himself, and by entry on the books authorized the corporation to apply such dividends to the payment of the notes. Defendants’ answer averred that plaintiff’s notes were part of a large number of notes, of a general character, negotiated about the samé time, and that the entries relating thereto were of the same purport, and any rights acquired thereby accrued for the benefit of all the holders, without any preference in favor of plaintiff. Held, that a demurrer to the answer was properly overruled.

Action by John R. Drake against the New York Iron Mine, William L. Wetmore, and Mathew H. Maynard, as assignee in bankruptcy of said Wetmore. From an interlocutory judgment overruling plaintiff’s demurrer to the fourth defense in the several answers of Wetmore and Maynard, plaintiff appeals. Affirmed.

The fourth, defense referred to is as follows, being the same in both the several answers: “First. At or about the same time that this defendant made the promissory notes in the name of the New York Iron Mine, as set forth in the complaint, he made various other notes and drafts or bills of exchange in the name of the said New York Iron Mine, which were all of the same general character as those mentioned in the complaint herein, and concerning which this action is brought, which notes wére discounted by various other persons, firms, or corporations, or which passed into the hands of other persons, firms, or corporations, for value and before maturity, in the same manner and under circumstances such as attended the negotiation of the notes mentioned in the complaint, which notes and drafts or bills of exchange, together with the notes mentioned in the complaint herein, amounted, in the aggregate, to a large sum, to wit, $46,200. Second. On information and belief, the defendant further alleges that the said notes above mentioned, including the notes mentioned in the complaint herein, were all made and negotiated under similar circumstances, and within a very short time of each other, and became due within a very short time after each other; and the defendant further alleges, upon information and belief, that the entries on the book of the said defendant the New York Iron Mine, concerning the said notes and drafts, were all of the same purport and effect, and that any liens, rights, preferences, priorities, or privileges, of any nature or kind whatsoever, if any were acquired at all by any of said notes, by reason of any entries upon the books of the New York Iron Mine, or otherwise, were acquired equally and at the same time, and by the same acts or entries, by all the other notes, or by the holders thereof, without any preferences whatever in favor of any of said notes, or of the holders thereof, against the others. Third. On information and belief, the defendant further alleges that all of the notes above mentioned are still outstanding,- and the holders thereof have equal rights with this plaintiff, if any such rights exist, to a pro rata share in the stock of this defendant in the said defendant New York Iron Mine, and in dividends declared thereon; and the -defendant further alleges that a complete determination and adjustment of the rightsof all persons, firms, or corporations interested in, or who may have rights with respect to, this stock or the dividends thereon, as alleged in the complaint, cannot be had in this action, for the reason that they have not been made parties thereto. Fourth. The defendant further alleges that, by reason of the matters hereinbefore in this fourth defense set forth, there is a defect of parties defendant in this action. ”