Many v. Beekman Iron Co.

The Chancellor.

The contract in this case is not under seal, and I think as it is signed by Conklin and Hewett as agents for the corporation, it might be declared on, in an action at law, as the agreement of the Beekman Iron Company made and signed by the agents of the corporation. (Story on Agency, 143, § 154. Evans v. Wells & Spring, 22 Wend. Rep. 325.) It was not necessary, therefore, to come here to reform the contract in that respect.

The objection taken by the demurrer of Conklin and Hewett, that they are mere witnesses and ought not to be made parties, might perhaps have been held valid if their demurrer had been merely as to the relief prayed against them. But a demurrer cannot be sustained in part. And as this is a general demurrer to the discovery as well as to relief, it must be overruled if the bill is properly filed against the corporation for which they acted as the agents in making the contract with the complainant. The case of the officers or agents of a corporation forms an exception to the general rule that a mere witness, Avho has no personal interest in the subject of the suit, cannot be made a party. It is the settled laAv both in this country and in England, that in a bill against a corporation for relief, its officers and agents, who are cognizant of the facts to which it relates, may be made defendants for the purpose of obtaining an answer on oath; Avhich cannot be obtained in any other way. (Story’s Eq. Pl. 201, § 235. 1 Paige’s Rep. 37, 219. 5 Price’s Rep. 491.) The decision of Sir John Leach in the case of How v. Best 41 Hase, (5 Mad. Rep. 19,) is perfectly reconcileable Avith the uniform current of decisions on this subject. In that case an officer of the Bank of England was made defendant for the purpose of discovery as to the time wdien certain stocks were transferred on the books of the bank; and his demurrer was alloAved. It is evident, however, that the bill in that case was not filed against the bank ; but against another party, as to Avhom it became material for the complainant to ascertain the time of the transfer of stocks transferible at the bank. And as the corporation itself could not, in such *194a case, be made a party to the suit, the bank having no interest in the controversy, its officer was of course a mere witness and did not come within the exception to the general rule. In cases coming within the exception it is not necessary to aver, in the bill, that the knowledge of the facts sought is confined to the officer or agent of the company who is made a party, for the purpose of getting an answer on oath which cannot be obtained in any other way. It is sufficient if it appears that the facts charged are material to the relief sought against the corporation, and are known to the officer or agent who is made a defendant for the purpose of the discovery ; especially where the discovery sought relates to transactions with him as such officer or agent.

There is no foundation for the objection that the bill is multifarious. The whole cause of complaint arises out of one transaction and could not be split up into separate suits. And a prayer for relief against the agents of the corporation, which was improper if the complainant was not entitled to relief as to them, did not render the bill multifarious, or authorize a general demurrer both as to the discovery and the relief. To render a bill multifarious it must contain two or more good grounds of suit, which cannot properly be joined in the same bill, against the same defendant or different defendants. For if a good cause of complaint is joined in the bill with other allegations which could not entitle the complainant to file a bill against the defendants, or either of them, such allegations are simply impertinent; or afford grounds for demurrer to that part of the bill for want of equity. So where relief is prayed against the officers of a corporation, who are properly made defendants with the corporation for the purpose of the discovery, where the case made by the bill does not entitle the complainant to ask relief against them, such prayer does not authorize either such officers or the corporation to demur to the whole bill as multifarious. But such officers or agents may, if they think proper, answer as to the discovery sought, and demur as to the claim for relief against them j *195or they may answer the whole hill in the usual manner, and insist upon the objection at the hearing ; and claim that the complainant’s bill as to them should be dismissed with costs. (Varick v. Smith & The Attorney General, 5 Paige’s Rep. 160. McIntyre v. The Trustees of Union College, 6 Idem, 239.)

Upon the merits of the case I have also arrived at the conclusion that the demurrers are not well taken. The statute has prescribed what shall constitute a ton. And although the original 18th section of the title of the revised statutes relative to weights and measures, (1 R. S. 609,) does not probably apply to this case, I am inclined to think the 35th section of.that title, which declares that the hundred weight shall consist of one hundred pounds averdupois, and twenty such hundreds shall constitute a ton, would preclude the complainant, in a suit at law upon this written contract, from showing that the parties intended to contract for the delivery of the iron at the gross weight of 2240 pounds to the ton. Usage and custom may be given in evidence in a great variety of cases, for the purpose of giving a different meaning to the language of a contract from that which the words used by the parties would bear in their ordinary or primary sense. But where a positive statute has declared the meaning or legal signification of a word, in reference to its use in contracts generally, I am not aware of any case in which a court of law has gone so far as to receive parol evidence to explain a written contract, expressed in the language of the statute, by showing that the statutory term in that particular contract meant something else than that which the legislature had declared should be its meaning. The complainant would therefore find it difficult if not impossible to recover upon this contract, in a court of law, for the neglect of the defendants to deliver the number of tons of iron mentioned therein at gross weight. But if the allegations in the bill are true, there cannot be a doubt that both parties intended to contract for the one thousand tons of pig iron at gross weight; as the corporation and its agents had been in the *196habit of selling its iron ; and at the rate of $32 for every 2240 pounds. It is therefore a proper case for the interference of this court, to reform the written contract in such a manner as to make it express upon its face the actual agreement which both parties intended to make. The demurrers, therefore, must be overruled, with costs to be paid by the defendants respectively.

As the defendants have answered a part of the bill, denying combination, the complainant must now except to their answers for insufficiency, if he wishes for a further answer ; which I presume he does as to Conklin and Hewett who are made parties for the sake of discovery. (Story’s Eq. Pl. 535, note 2. Kuypers v. The Reformed Dutch Church, 6 Paige’s Rep. 576.) He must, therefore, have thirty days to file his exceptions to both or either of the answers, as he shall be advised. And if he excepts to the answer of Conklin and Hewett, they must put in their further answers to the exceptions within thirty days after the service of such exceptions, and pay the costs on their demurrer, or he may have an attachment against them to compel a further answer. In case he does not wish any further answer from the corporation, he must file his replication to the answer already put in within the thirty days allowed for excepting. And if he excepts to that answer for insufficiency, the corporation must answer the exceptions and pay the costs on its demurrer within thirty days thereafter, or the bill must be taken as confessed against the company.