Witherbee v. Bowles

Laughlin, J. (concurring):

I agree with Mr. Justice Clarke that the demurrer, on the ground that causes of action have been improperly united, ivas well taken. It is to be borne in mind that in determining this question, the inquiry is not whether two or more causes of action have been well pleaded, but whether the pleader has attempted to set forth two or more causes of action. In the complaint at bar we find allegations appropriate only to a representative cause of action, viz., the futility of calling upon the directors to bring the action in the name of the corporation; and we find a prayer for relief to which the corporation only would be entitled, viz., that the individual defendants accoimt for the value of the new issue of stock thereof where a surrender thereof for cancellation cannot be compelled. These facts and this prayer for relief in conjunction with the other facts pleaded, set forth a cause of action in the right of the corporation which cannot be maintained . by the plaintiffs , in’their individual right. I do not agree, however, that it is essential for the plaintiffs to first obtain a judgment reinstating them in their right as stockholders of the company before they can maintain an action for the other relief demanded, or that the cancellation of the new issue of stock and of the contracts by which worthless property was purchased therewith can only be had in an action by the corporation or in a representative action. Here, all of the acts are charged to have been successive steps in the consummation of a conspiracy planned by the individual defendants to deprive the plaintiffs of their stock and of their majority control in the corporation secured thereby, and since the owners of all of the stock except that owned by the plaintiffs were parties to the conspiracy there is no other stockholder situated similarly to the plaintiffs. If all parties who can in any manner be affected by the relief demanded are before the court and have not in good faith and for value acquired vested rights, I see no want of power in a court of equity to grant plaintiffs by a single judgment in this action all the i-elief for which they pray other than the accounting to the corporation for the value of stock.