
    Platt, etc., v. Colvin et al.
    
      foint stock companies— When preside7it or stockholder of, Tnay stie Jor beTtefit of 7nembe7~s—Pci7'ties—Practice—Sectio7i 5008, Revised Statutes, c07islrued.
    
    1. Section 5008, of the Revised Statutes, which provides that when the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue for the benefit of all, applies to actions of a legal, as well as to those of an equitable nature.
    2. Where the members of an unincorporated joint stock company are numerous, (in this case being about one thousand), so that frequent changes are liable to occur in the ownership of the shares, by sale, or death of members, or otherwise, it is impracticable, within the meaning of section 5008, to bring them all before the court; and the president, being a stockholder, may sue in behalf of himself and all other stockholders, for the recovery of money which had been stolen from the company.
    (Decided December 22, 1893.)
    Error to the Circuit Court of Allen county.
    On the 2d of January, 1892, the following petition was filed in the Court of Common Pleas of Allen county:
    “Thomas C. Platt, president and stockholder of The United States Express Company, plaintiff, v. William R. Colvin and Harmon Colvin, defendants.
    “The said plaintiff says that The United States Express Company is a joint stock association, duly organized in the year A. D. 1851, under the laws of the state of New York, and ever since existing and doing business as such, and consists of about one thousand shareholders owning seventy thousand (70,000) shares, all of which persons have a joint ownership and interest in the cause of action hereinafter set forth, but are too numerous to be joined as parties plaintiff: and further, that by the laws of the said state of N ew York, under which said express company was organized and now exists, it is authorized and empowered to sue in the name of its president, who is said Thomas C. Platt, and the said Thomas C. Platt is president of the said United States Express Company and a stockholder therein, and as such brings this suit in behalf of said association, and all the stockholders thereof.
    “ The said plaintiff avers that on the 22d day of February, A. D., 1882, and for a long time prior thereto, the said United States Express Company was, and had been, a common carrier for hire, of moneys, goods and personal property, along the line of the Rake Erie & Western Railroad, through said county and through said state and through the city of Rima in the said county of Allen, and at said date, and for a long time prior thereto, said express company had, in said city of Rima, in the old frame depot, then near by the Pittsburg, Fort Wayne & Chicago Railroad track, an office for the receipt and storage for safekeeping of moneys, goods and other personal property which came into the care and custody of said United States Express Company for transportation and delivery to its customers and patrons, and which said office on the 22d day of February, A. D. 1882, was, and for a long time prior, had been in the charge of the agent and servant of said express company.
    “ The said plaintiff as aforesaid described and authorized, further avers, that on the 22d day of February, A. D. 1882, said United States Express Company, as above described and authorized, was in the custody and possession, as said common carrier, of a certain package of money, containing seventy-three hundred ($7300.00) dollars of the value of seventy-three hundred ($7300.00) dollars, which sum of money was then in the said office of the said express company at said depot in said city of Rima, Ohio, and in charge and possession of said United States Express Company, by its then servant and agent, to be delivered soon thereafter to the consignee of said package of money,-Thomas, whose first name is unknown to plaintiff.
    “ The said plaintiff, as aforesaid described and authorized, further avers that said defendants, William R. Colvin, Harmon Colvin, and each of them, knowing prior thereto that said package of money would arrive at said office and he received into the custody and possession of said United ■States Express Company, on or about said 22d day of February, A. D. 1882, did unlawfully and wrongfully combine .and confederate and conspire together to seize, take and make way with said package of money amounting to seventy-three hundred ($7300.00) dollars, of the value of sev■enty-three hundred ($7300.00) dollars, and to that end said •defendants and each of them, planned and devised ways and means to carry said unlawful purpose into execution, and in furtherance and consummation of said conspiracy •and combination, the said defendants, each performing his part in said conspiracy and combination, about the hour of one o’clock A. M., on the said 22d day of February, A. D. 1882, and while said package of seventy-three hundred ($7300.00) dollars of money, and of that value, was in the care, custody and possession of said United States Express Company, as said common carrier, did unlawfully, wrongfully and fraudulent^ seize, take and carry away from said express company, while its said agent was temporarily absent from said office in said city of Tima, where said money was then stored for safe keeping, the said package containing seventy-three hundred ($7300.00) dollars, and then and there of the value of seventy-three hundred ($7300.00) dollars, which said sum of money said defendants wrongfully and unlawfully and fraudulently did then and there convert to their own use, without the knowledge or consent of said'express compan3', or any of its agents, and have neglected and failed to return or repay any part of said sum to said express company, or to anyone for it, whereby said defendants and each of them are indebted to said express company and to plaintiff in said sum of seventy-three hundred ($7300.00) dollars, with six per cent, interest thereon from February 22, A. D. 1882.
    “ The said plaintiff, described and authorized as aforesaid,1 avers that said United States Express Company was obliged to and did make good and pay over to said consignee the said sum of sevent3^-three hundred ($7300.00) dollars, the sum so appropriated by defendants to their own use as aforesaid, directly after defendants received and converted the same as aforesaid.
    “ The said plaintiff, described and authorized as aforesaid, further avers, that he did not discover that the said defendants and each of them, were said wrongdoers and committed the wrongs hereinbefore set forth, until within the year next preceding the filing of this petition; and further, that said plaintiff did not discover the fraud and wrongs as having been committed by said defendants and each of them, until within the year last past before the filing of this petition; • and further, that said joint stock association, The United States Express Company, did not discover that the said defendants and each of them, were said wrongdoers and committed the wrongs hereinbefore set forth, until within the year next preceding the filing of this petition; and further, that said association did not discover the frauds and wrongs as having been committed by said defendants and each of them, until within the year next preceding the filing of this petition; and further, that not one of said stockholders) in said joint stock association, The United States Express'Company, discovered that said defendants and each of them, were said wrongdoers, find committed the wrongs hereinbefore set forth, until within the year next preceding the filing of this petition, nor did any one of said stockholders discover the said fraud and wrongs as having been committed by said defendants and each of them, until within the year next preceding the filing of this petition.
    “Wherefore plaintiff prays judgment against said defendants and each of them for seventy-three hundred ($7300.00) dollars, with six per cent, interest thereon from February 22, A. D. 1882.”
    
      The defendants demurred, on the grounds that the plaintiff was without capacity to sue, and that the petition stated no cause of action. The demurrer was sustained, the action dismissed, and judgment for costs rendered against the plaintiff.
    The judgment was affirmed by the circuit court, and error is prosecuted here.
    
      James L. Price and Judson Harmon, for plaintiff in error.
    
      William H. West and Walter B. Richie, for defendants in error.
   Williams, J.

The demurrer for incapacitj^ of the plaintiff to sue, is placed, in argument, upon no other ground than that the petition does not state a cause of action in favor of the plaintiff, and presents no question not raised by the general demurrer. The objection made to the petition is, that an action for the redress of the wrong alleged cannot be maintained by the plaintiff, because he is not the party injured, being only one of many who suffered the injury; or, more definitely stated, the express company, of which Platt is the president, is a copartnership, and must sue for the injury complained of, either in its copartnership name, or in the names of its members, all of whom must be joined, because all are united in interest.

Treating the company as a copartnership, some of the characteristics of which it undoubtedly has, though possessing others not pertaining to partnerships generally, as will be hereafter noticed, it is-obvious it cannot sue in its company name, under section 5011 of the Revised Statutes, for it does not appear to be “a partnership formed for the purpose of carrying on a trade or business in this state, or holding property therein.” Haskins v. Alcott, 18 Ohio St., 210. And, ordinarily, the only other mode in which a copartnership can sue is by and in the names of its members.

It was the general rule in chancery, before the adoption of the civil code, that suits must be prosecuted by the real parties in interest, and that all who were united in interest must be joined. There were, however, certain well established exceptions to the rule, which, like the rule itself, were adopted for the convenient administration of justice. Among these exceptions, it is stated in Story’s Equity Pleading, section 97, were, “(1) where the question is one of a common or general interest, and one or more sue, or defend, for the benefit of the whole; (2) where the parties form a voluntary association for public or private purposes, and those, who sue, or defend, may fairly be presumed to-represent the rights and interests of the whole; (3) where the parties are very numerous, and although they'have, or may have separate, distinct interests; yet it is impracticable-to bring them all before the court.” In speaking of the-second class of exceptions above mentioned, it is said that “In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient, and would subject the proceedings to danger of perpetual abatements, and other impediments, arising from intermediate deaths, or other accidents, or changes of interest. Under such circumstances, as there is a privity of interest, the court will allow a bill to be brought by some of the parties in behalf of themselves and all the others, taking care, that there shall be a due representation of all substantial interests before the court.” So that, the principle upon which, that class of exceptions rested, is not different in substance, from that of the last class mentioned, namely, that the parties are numerous, and it is impracticable, in the convenient and speedy administration of justice, to have them all before the court; and the courts in many adjudged cases appear to-have so regarded it. By reference to some of the cases it will be seen how the exceptions were applied in practice, and when it was deemed, by the courts, impracticable to bring all of the parties, when numerous, before the court. Taylor v. Salmon, 4 M. & C. (18 Eng. Ch. R.), 134, was a suit by the directors of an unincorporated mining company, in behalf of themselves and its other shareholders, to compel the execution of a lease to the company, under an agreement alleged to have been made in its behalf by certain of its members. The bill alleged there were one hundred and twenty-eight shares of stock held by the plaintiffs, and the other members of the concern, who were more than forty in number, in different proportions; and that the shares, which were transferable, were so liable to change of ownership as to render it impracticable, without great inconvenience, to make the owners all parties to the suit. One of the objections made to the bill was, that all the members of the company were not made parties. But Eord Chancellor Cottenham, overruling the objection, said: “That where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others, is established.”

In Walworth v. Holt, 4 M. & C. (18 Eng. Ch. R.), 619, a bill was filed by some of the shareholders of a joint stock banking company, on behalf of themselves and all other shareholders, except the defendants, against the directors and certain shareholders, who, it was alleged, had not paid their subscriptions to the stock of the company, to compel payment of the same, and the application of the money to the satisfaction of the company’s debts. The bill averred that all the shareholders had a common interest in having the partnership property gotten in and applied in satisfaction of the partnership debts, and, that the number of shareholders was so great, and their rights and liabilities so subject to change and fluctuation by death or otherwise, that it was not possible, without great inconvenience, to make them parties to the suit. The bill was demurred to for want of necessary parties; it being claimed that all shareholders who were not defendants, should have been plaintiffs. The demurrer was overruled, the Lord Chancellor remarking, that it was the duty of the court “to adapt its practice- and course of proceeding to the existing state of society, and not, by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice, and to enforce rights for which there is no other remedy. This has always been the principle of this court, though not at all times sufficiently attended to. It is the ground upon which the court has, in many cases, dispensed with the presence of parties who would, according to the general practice, have been necessary parties.”

Small v. Atwood, 1 Younge’s R., 407, was a bill by some of the members of a copartnership styled The British Iron Company, in behalf of themselves and all copartners, to rescind a contract for the purchase of certain mining property, and recover back the purchase money paid, on the ground of fraud. It was urged as an objection to the bill, that all the members of the firm should be parties, they being all interested in the recovery. In deciding against that objection, Rord ChiefBaronRYNDHURSTsaid, that “it is the rule of a court of equity that all persons who are interested in a question which is litigated, must, either in the shape of plaintiffs or defendants, be brought before the court. If that rule were to apply, in its strictness, to a case of this description, this consequence would follow, that justice in such cases would be unattainable in this court; because it is perfectly certain, that if it were necessary to put upon the record the names of all the persons who are members of this partnership, or were members at the time when this bill was filed (for they then amounted to nearly six hundred), it would be utterly impossible that the suit could ever come to its termination, from the necessary abatements which would, from time to time, take place from deaths and other causes.” The case, it was held, came within an exception to the general rule requiring all persons interested in the question to be made parties; which exception, it is said, was established at an early period for the purpose of preventing a failure of justice.

In Chancey v. May, Prec. in Ch. (Finch’s Chan. Cas.) 592, a bill was brought by the treasurer and managers of the Temple Mills Brothers’ Works, an unincorporated company, on behalf of themselves and all other proprietors, except the defendants, the late treasurers and managers, who were charged with the misappropriation and embezzlement of the partnership funds. The partnership consisted originally of eighteen shares, which were afterward divided into eight hundred. The defendants demurred, because the rest of the proprietors were not made parties. The demurrer was overruled on the grounds, first, that the bill was on behalf of all other co-partners, except the defendants, and so all of them were, in effect, parties; and, secondly, that it would be impracticable to make them all parties by. name, as there would be continual abatements by death, or'otherwise, and so no coming at justice, if all were required to be made parties. There are many English and American cases of like character. Those already adverted to, sufficiently show the nature of the exceptions which obtained in chancery, to the general rule in regard to parties, the principle upon which they were based, and the manner of their practical application. The rule, and its exceptions, in their breadth and substance, were adopted into our code, (sections 4993, 5007 and 5008, Revised Statutes), and, by its provisions made applicable to the civil action which it substituted for what was theretofore known as the suit in equity, and' the action at law. It is argued by counsel for the defendant in error, that the provisions of section 5008, permitting one or more to sue or defend for the benefit of all, when the question is one of a common or general interest of many persons, or when the parties are very numerous and it is impracticable to bring them all before the court, apply only to actions of an equitable nature, because, before the code, that manner of proceeding was allowed only in suits in equity. If that were a sufficient reason for restricting the provisions of that section to such actions, the same reason would make it necessary to so restrict the general requirement of the code that the plaintiffs must be the real parties in interest, and all must join who are united in interest; for that, as we have seen, was the general rule in equity, and not applicable to many actions at law; and so, with respect to the rule adopted by the code, requiring the petition to state the facts constituting the cause of action, and others of its provisions. Indeed, the mode of procedure in the civil action is, in most respects, taken from, or assimilated to, that which prevailed in suits in chancery. One object of the code in abolishing the distinction between actions at law and suits in equity, and prescribing the same method of procedure for the prosecution of both, evidently was to simplify judicial proceedings, and facilitate the administration of justice; and to accomplish that end, its provisions, and proceedings under them, should receive that liberal construction which it is expressly required shall be given them. To -restrain the application of section 5008, to actions of á purely equitable nature, would, we think, be at variance with its language, and the general spirit and purpose of the code. If it is competent for some of the shareholders of an unincorporated company to sue for themselves, and all others, to recover money which had been obtained from the company by fraud, as was done in Small v. Atwood supra, or, to recover money of the company which had been embezzled, as was the case in Chaney v. May, supra, there would seem to be no reason, in the nature of things, why a like action might not be maintained to recover money obtained from such a company by theft, as it is sought to do in the case before us. The same grounds appear in this case, which were deemed sufficient in the other cases, to entitle some of the shareholders to sue for all. The petition alleges, that the express company is a joint stock association organized in 1854, under the laws of the state of New York, having seventy thousand shares of stock owned by about one thousand shareholders, all of whom have a joint interest and ownership in the cause of action set forth in the petition, but who are too numerous to be joined as plaintiffs; that Thomas C. Platt is the president, and a stockholder of the company, and brings the action in behalf of the company and all of its stockholders; and that such suit is authorized by the law under which the company was organized. Though such associations are not corporations, they possess some of the attributes of corporations, and in these respects differ from ordinary mercantile copartnerships. They can sue and be sued in the name of their president or treasurer; their capital is represented by stock certificates which are transferable; the death of a member, or transfer of his shares, does not dissolve the company, which is thus made capable of perpetuity like a corporation, and it can so hold real or personal property. 2 Potter on Corporations, sec. 624. While the petition does not, in terms, aver that it is impracticable to bring all the shareholders before the court, the impracticability of doing so appears from the allegations as to the nature of the association, and the number of its shareholders. The association is not unlike those English companies referred to in the cases'above cited; and its shares being transferable, like the shares in those companies, the ownership is so liable to change by sale, or death of the owner, as to render it impracticable, within the meaning of that term as derived from the adjudged cases, and as used in section 5008, of the Revised Statutes, to bring all the shareholders before the court; and the suit may, therefore, be prosecuted by the president who is a shareholder of the companj1-, as it has been brought. We see no reason why judgment against the plaintiff will not be binding upon all whom he represents, or judgment in his favor enure to their benefit. Each stockholder, by becoming a member of the association, gave his consent to that rule of its being, that suits in its behalf might be prosecuted according to the law applicable to it, and the judgment in any action so prosecuted, with such consent, must necessarily operate upon all, as if they were named in the suit.

Judgment reversed.  