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Wood v. Olney.

W. E. F. Deal and R. S. Mesick, for Appellants.

iffs.

I. That the complaint states a cause of action against the Washoe Gold and Silver Mining Company, we think is plain. Catskill Bank v. Gray, 14 Burt, 471.

II. The joint demurrer of all the defendants except the Imperial Company was too broad; and the order sustaining it, and the judgment thereon, were erroneous. People v. The Mayor of N. Y., 28 Barb. 251; Woodbury v. Sackrider, 2 Abb. Pr. R. 402; Webster v. Tibbetts, 19 Wis. 438.

III. The Imperial Company demurred separately, yet its demurrer was acted upon and sustained jointly with that of the other defendants, and one judgment was entered in favor of all, against plaint

Such being the case, the judgment must be set aside as to all the other defendants. Being a joint judgment for all the defendants, it seems to us impossible that it can stand as a separate judgment in favor of one.

IV. The Imperial Company, both at the hearing and on demurrer, and in the order and judgment following, assumed a joint position with the other defendants, and should be considered as having thereby waived any advantage of a separate standing.

V. The first note was made by the parties who signed for themselves, and on behalf and on the responsibility of all the partners of Olney & Co., with full authority from the partners to do so and bind them as such partners, and also to bind the firm of Olney & Co. The second note was signed by Olney & Co. The money borrowed was used in the business of the firm. The presumption is, that it was the note of the firm.

VI. The Imperial Silver Mining Company succeeded to all the business and property of Olney & Co., and carried on the same business that had been previously carried on by Olney & Co. There was no change except in name. In equity, the Imperial S. M. Co. is primarily liable to pay the debts contracted by Olney & Co. Paxton v. Bacon M. f. M. Co., 2 Nev. 260; Angell & Ames on Corporations, Sections 169 and 592.

Wood v. Olney.

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Thomas Sunderland and L. Aldrich, for Respondents.

I. There can be no recovery on the first note against any of the defendants, for the reason that none of them are parties to it. Chitty on Contracts, Chap. 2, p. 56–8; Ripley v. Kingsbury, 1 Day, 150; Jacquez v. Marquard, 6 Cowen, 697.

The second note must also be disposed of under the same rule, except, perhaps, the Washoe Gold and Silver Mining Company-it being alleged that this corporation was a member of the firm of Olney & Co., whose name appears as one of the makers of this note; and except as to the Imperial Silver Mining Company, if it can be held liable on the ground that it succeeded to the rights and interests of the Washoe Gold and Silver Mining Company. The mere averment that there was an intention by the parties to the notes, at the time they were made, to bind persons other than those whose names appear to the notes, is entitled to no consideration.

II. Again, it is alleged that the Washoe Gold and Silver Mining Company is a California corporation, but there is no averment that the law of California at that time, nor at the times the notes were made, held stockholders liable for any portion of the indebtedness of the corporation. In order to hold the stockholders, it was necessary to have averred that the law of California created such liability—otherwise, the law of California would be presumed to be the same as that of Nevada, which recognized no such liability. 1 Greenleaf on Ev. 661-6; 1 Seld. N. Y. 447 ; 15 Cal. 226; 32 Cal. 55; 21 Cal. 225.

III. As to defendants who are not parties to the notes, except so far as the two corporations are concerned, (they being regarded as foreign corporations, and always absent from this state) the alleged causes of action are barred by the statute of limitation.

IV. The Imperial Silver Mining Company is not responsible, unless by reason of its succession to the rights and property of the Washoe Gold and Silver Mining Company. The terms, character, conditions and considerations which led to the formation of the Imperial Company are not stated, nor does it appear who its stockholders were. The complaint should show conclusively that the change was merely a change in name. The law governing this question has been clearly

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Wood v. Olney.

laid down by this court. Paxton et al. v. The Bacon Mill and Mining Company, 2 Nev. 257.

V. We have treated the alleged partnership of Olney & Co. as valid, so far as the Washoe Gold and Silver Mining Company is concerned, because there is nothing in the complaint to disclose the character of its occupation or its powers. For the purposes of this discussion, we admit the general doctrine that there is no prohibition in law to the formation of such partnerships, where the object is to effect the purpose of the incorporation.

VI. The proposition of plaintiffs, that the joint demurrer, if there was a cause of action as to any of the defendants so joined, should have been overruled, cannot be sustained. It would be in direct conflict with our Practice Act, Sec. 148, which provides that judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate right of the parties at each side, as between themselves. As to the authorities that have been cited in support of the proposition, we may remark that there was great diversity of opinion in the outset as to the proper construction of the New York code of procedure, and great want of uniformity in the decisions upon it. The new system encountered the prejudices (if we may properly use that language) of the judges in New York, accustomed to the old system of practice. By reason of the existence of this opposition or dislike to the code, the old rules of law were reluctantly given up, and in some instances not at all, unless expressly abolished.

Mitchell f Stone and G. H. Gray, also for Respondents.

By the Court, GARBER, J.

We think the complaint shows a cause of action against the Washoe Gold and Silver Mining Company, but none against any of the other respondents. It is contended, that it also shows a cause of action against the Imperial Company; but the case of Paxton v. Bacon Co., 2 Nev., decides the point adversely to appellants.

Wood v. Olney.

Decisions are cited to show that as all the respondents, except the Imperial Company, demurred jointly, the demurrer was too broad, and should therefore have been overruled as to all. The case in 20 Barb., cited in 19 Wis., would seem to be an authority that, even if, for the reason here urged, the demurrer was improperly sustained as to any of the parties, we should only reverse the judgment as to that respondent against whom the complaint shows a cause of action. But we do not go upon that, for we think this demurrer should have been sustained as to all those joining in it, except the Washoe Company. The cases cited by the appellants are evidently founded upon the analogy supposed to be afforded by the rule that: “ If there be several distinct assignments of breaches, some of which are sufficient and the others not, or if a declaration contain several counts and one only be bad, on demurrer to the whole declaration, the court will give judgment for the plaintiff.” 1 Chitty Pl. 165. But this was not the common law rule; and it seems it is not the law in England now. At common law, on such a demurrer—that is, one too large as to the matter demurred to—the judgment was, that the plaintiff should recover upon such counts as were good, or such breaches as were well assigned, and should be barred as to the residue. Afterwards, the practice, as stated by Chitty, was borrowed from the courts of equity, and obtained until the simpler and more sensible common law practice, of giving judgment on the whole record according to the truth, was restored. Duppa v. Mayo, 1 Saunders, 285 (6), 286, note (9); Pinckney v. Inhabitants, 2 Ib. 379, 380, note (14); Comyns Dig. Pleader, C. (32), Q. (3); Hinde v. Gray, 1 Manning & Gr. 195, note (a); Slade v. Hawley, 13 M. & W. 756. However, the rule that a demurrer too large as to the matter demurred

, to should be overruled in toto, has been generally if not universally followed in the United States; and it is not necessary, in this case, to deny that in adopting the common law as a rule of decision, we adopted, as part of it, an innovation so sanctioned by time and authority.

But, even granting this, it does not follow that the same rule should be applied to a demurrer, good as to one and bad as to others joining in it. It is said by Chief Justice Spencer, speaking of a joint

Wood v Olney.

plea of the general issue, to which the remark is no more apposite than to a joint demurrer, that “the rule is a very artificial one and ought never to be extended beyond the very cases to which it has been applied,” (Higby v. Williams, 16 Johns. 216) and the courts of equity, while recognizing the rule that as to the matter demurred to a demurrer cannot be good in part and bad in part, have uniformly refused to extend it to a demurrer like this—the settled equity doctrine being that a joint demurrer may be sustained as to one defendant and overruled as to another. Mayor, etc. v. Levy, 8 Vesey, 403; Wooden v. Morris, 2 Green's Chy. (N. J.) 65; Barstow v. Smith, Walker's Chy. Rep. 397. On this principle alone, the cases cited by the appellants and the somewhat earlier ones upon which they rest, should have been, in our opinion, differently decided. We infer from the remarks of Lord Eldon, in Mayor v. Levy, that prior to our revolution the rule invoked was never extended, either at law or in equity, to the case of a joint demurrer too large as inapplicable to some of the parties joining; and so far as we are advised, all the American cases in which it has been so extended are bottomed solely on the authority of very recent New York cases, none of which were decided in or have been approved by the courts of last resort in that state.

We see no reason why we should follow this new departure, and we are not inclined to extend so arbitrary and technical a rule further than we are compelled to do by the authority of decisions binding upon us. We are satisfied that, under our statute, the position that the judgment, being joint, must be reversed in toto, if not good as an entirety, is untenable. The case of Ricketson v. Richardson, 26 Cal. 149, is in point, and with the views there expressed we fully agree.

The judgment should be reversed as to the Washoe Gold and Silver Mining Company, and affirmed as to the other respondents, and the judgment of this court will be entered accordingly,

WHITMAN, J., did not sit in this case.

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