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Marie v. Garrison, 83 N. Y., 14.

is not alleged that Garrison was a party to the fraud, if any ex-29 isted, in the issue of the bonds, or that the company did not receive their full value, or that they were not given to secure a valid debt; nor does it appear that the mortgage debt could not have been enforced in equity against the property of the company. The allegations of the complaint do not justify the inference that the parties were colluding to enforce a fictitious debt against the company, and it is difficult to see what interest the plaintiffs could have had to have united in such a conspiracy.

In respect to the second ground of alleged illegality it is to be 30 observed that the magnitude of the property involved in the foreclosure would naturally prevent an individual (unless possessed of great wealth) from bidding on the sale. The plaintiffs, who together owned a large number of shares, had a right to enter into any arrangement for the protection of their interest not prohibited by law. This was not the case of a combination between persons having no prior interest in the property to suppress bidding at a judicial sale for speculative purposes. The arrangement made was, so far as appears, a reasonable and honest attempt on the part of the plaintiffs, to save their property from 31 being sacrificed on the foreclosure. The other stockholders and bondholders were at liberty to bid on the sale. The mere fact that an arrangement fairly entered into, with honest motives, for the preservation of existing rights and property, may incidentally restrict competition at a public or judicial sale, does not, we think, render the arrangement illegal. The question of intent, at all events, is one for the jury, upon the whole facts as they shall appear on the trial. (Marsh v. Russell, 66 N. Y., 288; Phippen v. Stickney, 3 Metc., 384; Wicker v. Hoppock, 6 Wall., 94.)

The complaint shows that the road on the foreclosure sale was purchased for the defendant Garrison in the name of a third party, and that he subsequently organized a new company. The complaint then alleges, "that although often requested so to do, the said Garrison has refused aud does refuse to fulfill his said contract with the plaintiffs, and to issue or to cause to be issued and be delivered to the plaintiffs thirty-six thousand shares of stock in said (new) company, in exchange for the stock of the

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Marie v. Garrison, 83 N. Y., 14.

33 Pacific Railroad, so as aforesaid held by the plaintiffs." It is claimed that the complaint is defective, for the reason that it shows no offer, readiness or even ability to surrender the thirtysix thousand shares of old stock in exchange for the new shares. This objection is unanswerable, unless a tender of the old shares is implied in the averment of the refusal of Garrison to issue the new shares in exchange for the stock of the old company held by the plaintiffs. Bearing in mind that what is implied in an averment is on demurrer to be taken as if the thing implied is directly averred, and that an argumentative pleading is not 34 for that reason demurrable, we conclude, although not without some hesitation, that an averment of a refusal to exchange does import that the other party offered to do that without which no exchange could be affected, viz., that he tendered the property or thing which was the consideration of that which he was to receive, and which he called on the other party to deliver.

It is made a separate ground of demurrer that there is a misjoinder of parties plaintiffs. This is one of the grounds of demurrer under the new Code (§ 448). This objection is predi35 cated in part upon the general rule that parties whose interests are divided, distinct and several, cannot unite as plaintiffs, and it is asserted that the interests of the plaintiffs under the contract sued upon were several and distinct within the rule stated.

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We concur in the view of the defendant's counsel that the rational construction of the pleader's allegation in the introductory clause of the complaint, that the plaintiffs and Denny "owned and held, either in their own right or in trust for others," the thirty-six thousand shares, etc., is that they held shares distributively and severally aggregating that number, one or more holding their shares individually, and one or more holding shares in trust, or that one or more, or each, held shares both individually and in trust. But we think it does not follow from the individual or several ownership by the plaintiffs of the shares in the old company, that their interest in the contract with Garrison was several and not joint, or that Garrison's contract was with the plaintiffs severally and distributively.

There seems to be no difficulty, in the nature of things, in the plaintiffs, as owners of distinct and several shares of stock in the

Marie v. Garrison, 83 N. Y., 14.

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same company, uniting and combining their shares in one aggre- 37 gate for the purpose of sale as an entire property to one person, and taking from him a promise to pay them jointly a gross sum equal to their aggregate interests, leaving them, as between themselves, to arrange the distribution of the fund which shall be derived from the sale. The circumstances of this case show that such an arrangement may be of great practical convenience, and we know of no peremptory rule of law which forbids it. The promise of Garrison was, in form, a promise to the plaintiffs jointly. He entered into no undertaking to transfer to each plaintiff shares corresponding with the shares held by him in the old company. His promise was on receiving them from the plaintiffs, as an aggregation of individuals, thirty-six thousand shares, to give them in exchange thirty-six thousand other shares. The shares to be transferred by them to Garrison, and by Garrison to the plaintiffs, were to be transferred in solido. The legal interest of the plaintiffs in the contract was joint, although their interest in the shares to be transferred by Garrison or in the damage which may be recovered may be unequal and separable. The construction of the contract is, we think, precisely the same 39 as if the plaintiffs had been joint owners of the shares when the contract was made. (See Emery v. Hitchcock, 12 Wend., 156; Loomis v. Brown, 16 Barb., 331; 1 Pars. on Cont., 19, and cases in note.)

It is also claimed that there is a misjoinder of causes of action in behalf of trustees, with causes of action in favor of individuals, and also that the complaint is defective in not setting forth the trust under which the trust shares were held. But the averment in the complaint that the shares were held by the plaintiffs either in their own right or in trust, is an averment simply of legal title of the plaintiffs to the shares mentioned. The action is not an action by trustees to enforce a trust, or upon a contract made by the plaintiffs in a representative character. The contract is with the plaintiffs as individuals, and we are of opinion that an action may be maintained thereon by them in their own names, without setting out the trust or referring to their character as trustees. At least it cannot appear on demurrer that the plaintiffs are not entitled to maintain the action in their individ

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Johnson v. Golder, 132 N. Y., 116.

41 ual capacity. (See Merritt v. Seaman, 6 N. Y., 168; Mellen v. Hamilton F. Ins. Co., 17 id., 615; 1 Chitty's Pl., 3.)

Our conclusion is that the demurrer was properly overruled at the Special Term. It must be admitted that the complaint is indefinite and argumentative, and that material facts are obscurely averred, but we think that it is not defective in substance within the rules by which the sufficiency of pleadings on demurrer is tested..

The judgment of the General Term should be reversed and 42 the judgment of the Special Term affirmed, with leave to the defendant to answer on payment of costs.

All concurred, except FINCH, J., taking no part.
Judgment accordingly.

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JOHNSON v. GOLDER.

New York Court of Appeals, Second Division, 1892.
[Reported in 132 N. Y., 116.]

1. A demurrer will not be sustained if the reasonable and fair inferences which can be drawn from the allegations of the pleading demurred to, make out a case.

2. Thus, from an averment of the death of J. in 1880, leaving a last will and testament which was duly probated February 13, 1880, the court will infer in support of the complaint that J. died before such probate. 3. It seems, that if a more precise statement was desired, the defendant should have moved that the complaint in this particular be made more definite and certain.

Demurrer to complaint for insufficiency.

The Special and General Terms of the City Court of Brooklyn sustained the demurrer without passing, however, upon the point presented in the opinion of the Court of Appeals.

The Court of Appeals reversed the judgment.

FOLLETT, Ch. J. It is urged in behalf of the demurrant that it does not appear upon the face of the complaint that James M. Johnson was the owner of the fee of the mortgaged premises and a necessary party to the action begun by Bates, May 19, 1880, to foreclose

Masterson v. Townshend, 123 N. Y., 458.

the first mortgage, because it is said that it is not alleged that 2 Nanette Pontau Johnson was then dead. It is averred in the 9th subdivision of the complaint that she died in 1880, leaving a last will and testament, which was duly probated February 13, 1880, under which James M. Johnson, as it is alleged, acquired the fee of the land, subject to the amount due upon the mortgage of April 27, 1854, foreclosed by Bates. The death of Mrs. Johnson in 1880, is alleged in positive terms, and the only inference which can be drawn from the averment that the will was probated prior to the date when the first foreclosure action was begun, is that the testatrix died before that time, and this is the reasonable and fair inference to be inferred from the allegation. This alleged defect would have been barely a sufficient ground to support a special demurrer under the practice existing prior to the Codes, but under the present practice, if a more precise statement was desired, the defendant should have moved that the complaint in this particular be made more definite and certain. (Marie v. Garrison, 83 N. Y., 14; Lorillard v. Clyde, 86 id., 384; Milliken v. Western U. T. Co., 110 id., 403.)

[A ruling on another question is here omitted.] All the judges concurred.

Judgment reversed.

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MASTERSON v. TOWNSHEND.

New York Court of Appeals, 1890.

[Reported in 123 N. Y., 458.]

1. A demurrer does not admit a legal conclusion, nor the adversary's ✓

interpretation of a document pleaded by him, but only such relevant facts as are well pleaded.

2. In order that the complaint in ejectment show plaintiff's right to the possession of the premises in question and to the relief demanded, it must disclose, on its face, such a state of facts that their admission by a demurrer would leave but the legal conclusion to be drawn in his favor.

3. In the construction of a testamentary disposition, where the language is unskillful, or inaccurate, but the intent can be clearly collected from the writing, it is the duty of the court to give effect to that intent, subject only to the proviso that no rule of law is thereby violated.

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