Durant v. Gardner , 19 How. Pr. 94 ( 1860 )

Bonney, J.

—The summons in this action is for a money-demand on contract.

The original complaint stated facts supposed to constitute a cause of action, whether legal or equitable might be doubtful, and prayed judgment that defendants in one event be decreed to account and pay to plaintiff their proportions of certain sums of money claimed to be due; and that plaintiff have judgment against them for §6958, with interest and costs ; and in another event, demanded judgment against the defendants, as trustees, for said sum of money, with interest, and for general relief.

On the 21st of January last, an order was made on defendants’ motion, that the complaint be stricken out for irregularity, in that it did not conform to the summons, with leave to plaintiff to serve an amended complaint.

The plaintiff has served an amended complaint, which, or portions of which, the defendants now move to strike out.

The plaintiff in this amended complaint, after stating his appointment as receiver of Downing, &c., alleges that the defendants and Downing undertook to form and act as a manufactuiing corporation, under the laws of this State, of which corporation Downing and defendants were named and acted as trustees; that such supposed corporation and trustees neglected to perform certain required acts necessary to the proper formation, or continued legal existence of their incorporation. That for the benefit of the company, and at request of said trustees, Downing advanced and paid various sums of monéy and assumed liabilities, in the aggregate amounting to §6958, which the company was liable to pay him, and which the defendants, by reason of their neglect of duty as such trustees, became liable to pay; and that the right to such sum and to collect the same has passed to the plaintiff as receiver.

The complaint further alleges that if the intended corporation was not legally formed, the defendants and Downing remained an unincorporated joint-stock company, and as such (in that case, I suppose is intended) the defendants are liable to pay said indebtedness to Downing; and plaintiff prays judgment that in case said corporation be adjudged not to have been legally formed, the defendants be adjudged to pay to plaintiff, and that he have judgment against them for, said §6958, and interest. But if it be adjudged that said corporation was duly formed, then that plaintiff have judgment for said sum of money and interest, against the defendants, as trustees, for their alleged defaults, neglects, and omissions of duty.

The conclusions of law upon which the plaintiff demands judgment against the defendants, are somewhat inartificially, and probably unnecessarily, stated in the complaint. It would have been sufficient, and I think better pleading, to have plainly alleged the facts upon which plaintiff relies, and demanded judgment for the amount of money claimed to be recovered; omitting any statement of supposed legal principles upon which he relies to maintain his claim.

But the plaintiff has,.I think, intended to allege that upon the facts stated he has a legal claim against the defendants for the motley demanded, on an implied contract arising upon alleged irregularities in the supposed formation of the intended corporation, or neglect in the subsequent performance of their duties as trustees of such corporation, by reason of which the defendants, personally, instead of the corporation, have become his debtors for the money by him advanced, &c., which in my opinion is a claim for a money-demand on contract; and if the plaintiff at the trial shall fail to make out a contract, express or implied, he must fail in the action.

I do not think the plaintiff has in this amended complaint stated, or intended to state, two classes or forms of action, or indeed, two counts. He has stated, unnecessarily I think, two supposed legal grounds upon which he seeks to maintain his action; but such statement is not uniting two inconsistent causes of action or claim which requires one to be stricken out from the complaint.

The defendants move to strike out three specified sections or portions of the amended complaint. The first-mentioned section is a statement of facts which appears to be unobjectionable, if not absolutely necessary to be stated.

The second section moved to be stricken out, is a demand for judgment upon hypothetical or alternative conclusions of law, at which it is supposed the court may arrive on the trial; and this appears to me not only unnecessary, but improper to be inserted in the.complaint.

The third section is a prayer for general relief, entirely inconsistent with the demand for judgment for a specified amount in an action for a money-demand on contract, and therefore improper, even if harmless.

The motion is granted to strike ont the second and third sections of the amended complaint specified in the notice. As to other matters denied; no costs to either party.