
    184 F. 673
    WASHINGTON-ALASKA BANK v. STEWART et al.
    No. 1,818.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 6, 1911.
    
      Wickersham, Heilig & Roden, Campbell, Metson, Drew, Oatman & Mackenzie, and E. H. Ryan, for plaintiff in error.
    L. P. Shackleford and Alfred Sutro, for defendants in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above).

Were several causes of action improperly united in the amended complaint? The Code of Alaska (Code Civ.Proc. § 84) provides that the plaintiff may unite several causes of action in the same complaint when they all arise out of:

“First: Contracts express or implied; or

“Second: Injuries with or without force to the person ; or

“Third: Injuries with or without force to property; or

“Fourth: Injuries to character; or

“Fifth: Claims to recover real property with or without damages for the withholding thereof; or

“Sixth: Claims to recover personal property, with or without damages for the withholding thereof; or

“Seventh: Claims against a trustee by virtue of a contract or by operation of law.”

At common law joinder was permitted of all actions requiring the same plea and judgment. The Codes, however, have generally classified the causes of action which may be united in a complaint, and have permitted the joinder of those which fall within certain designated classes. The classification in the Code of Alaska is similar to that of most of the Codes. In view of the common-law rule which existed before the adoption of the Codes, it ought to be presumed that, when classes of causes which may be united are specified in a Code, it is the intention of the lawmakers to include therein under one or other of the heads all kinds of civil actions which may be brought. In 23 Cyc. 408, it is said: “Actions for the recovery of statutory penalties are usually regarded as upon contract, and several causes of action, therefore, against the same defendant, may be joined” —citing Carter v. Wilmington, etc., Ry. Co., 126 N.C. 437, 36 S.E. 14; Maggett v. Roberts, 108 N.C. 174, 12 S.E. 890; Katzenstein v. Railroad Co., 84 N.C. 688; Railroad Co. v. Cook, 37 Ohio St. 265.

In the first three of these cases joinder of actions in one complaint to recover penalties was permitted on the ground that they were “actions arising out of contract express or implied.” In Railroad Company v. Cook, an action to recover statutory penalties for overcharges for the transportation of passengers, it was held that several causes of action might be joined under the classification “injury with or without force to person or property.” In Snow v. Mast, 65 F. 995, Judge Sage followed the decision in Railroad Co. v. Cook, and said that the statute providing for the joinder of actions should be construed liberally for the purpose of preventing multiplicity, and that different causes of action for penalties under a state statute might be united in the same petition.

The plaintiff in error cites Brown v. Rice, 51 Cal. 489, and Louisville & Nashville Ry. Co. v. Commonwealth, 102 Ky. 300, 43 S.W. 458, 53 L.R.A. 149, in which it was held, under Code provisions similar to those under discussion here, that no provision was made for joinder of causes of action to recover penalties, and State v. Yellowjacket Silver Mining Co., 14 Nev. 220, in which it was held that the right of a state to recover taxes did not arise from contract, and that the joinder of such causes of action was not permitted by the Code. In the first two of these cases, there is no discussion whatever of the grounds of decision. In the Nevada case, we find the better reasoning in the dissenting opinion of Beatty, C. J., whose view was that the obligation to pay a tax rests upon the implied promise of the taxpayer, and the causes of action to enforce payment thereof arose out of an implied contract. We see no difficulty in the way of holding that the causes of action here sued upon arise under an implied contract. When the plaintiffs paid to the defendant interest in excess of the amount allowed by law, there arose an obligation tantamount to an implied promise to repay the amount so unlawfully exacted, and in addition thereto the law imposed an obligation to pay an equal amount. That obligation was enforceable under the Code pleading as a promise to pay, just as at common law assumpsit lay on an implied promise to discharge a legal obligation created by statute. Hillsborough County v. Londonderry, 43 N.H. 451; Bell v. Burrows, Bull. NP. 129; Brookline v. Westminster, 4 Vt. 224; Bath v. Freeport, 5 Mass. 325. In Mayor, etc., of Balt. v. Howard, 6 Har. & J.(Md.) 383, 394, it was said: “Where the law gives a claim to one against another, it raises an implied assumpsit on the legal obligation to pay.”

There was no error in permitting the complaint to be amended to bring in Shaw as a party plaintiff. Both, he and Stewart had an interest in the subject-matter of the action, and in the relief demanded, Shaw as the assignee for Stewart’s creditors, Stewart as having a contingent interest, in reducing the assigned demands to judgment, and in obtaining a possible overplus after the payment of his debts. The parties stood in the attitude of trustee and cestuis que trust, the joinder of whom as parties plaintiff in actions affecting the trust property has always been permitted under the Codes. 30 Cyc. 118, and cases there cited.

Nor did the trial court err in striking out as sh,am and frivolous the answer of the plaintiff in error to the amended complaint. That answer was in the nature of a plea in abatement, alleging that neither Stewart nor Shaw was the real party in interest, but that the cause of action had been assigned, at some time unknown to the pleader, to the West Coast Grocery Company. The verification of this pleading was made by the same officer of the plaintiff in error who had in the first answer made oath that Shaw and not Stewart was the real party in interest. In the answer to the amended complaint there is no explanation of these inconsistent averments, and no allegation of mistake or misinformation. In the language of a proffered amendment which the plaintiff in error sought to have incorporated in the answer, alleging “that said C. M. Shaw is, and at all times mentioned in said amended complaint was, the agent and employé of said West Coast Grocery Company,” we may find the ground on which it was alleged that the West Coast Grocery Company was th.e real party in interest. Taking it to be true, it shows that Shaw was the trustee of an express trust, and that as such he had the right to maintain the action on behalf of the grocery company. In this connection error is assigned to the refusal of the court to strike out the affidavit of Stewart which was filed in support of the motion to strike out the answer to the amended complaint, and it is urged that the affidavit had no place in the pleadings and could not properly be considered by the court. But there is nothing to show that the ruling of the court was influenced by the affidavit. The order to strike out the amended answer was clearly sustainable upon the grounds above indicated.

It is contended that the demurrer to the amended complaint should have been sustained for want of an averment that the bank knowingly received usurious interest. Cases are cited which sustain the rule that the complaint must contain such an allegation where the statute makes recovery of the penalty depend upon the defendant’s knowledge that usurious interest was knowingly charged or collected. There is such a provision in section 5198 of the Revised Statutes (12 U.S.C.A. §§ 86, 94 and note, Comp.St.1901) governing national banks, and under its terms it was held, in Schuyler National Bank v. Bollong, 24 Neb. 821, 40 N.W. 411, Garfunkle v. Bank of Charleston, 79 S.C. 404, 60 S. E. 942, and Henderson National Bank v. Alves, 91 Ky. 142, 15 S.W. 132, that the complaint must allege that the usurious interest was knowingly collected. The statute of Alaska contains no such, or equivalent, expression. It declares that, if usurious interest be received or collected, the person paying the same, or his legal representative, may recover from the person, firm, or corporation receiving the same double the amount of the interest so received or collected. But if, indeed, the statute were otherwise, and had made it a condition to the right to recover the penalty that the usurious interest was knowingly collected, we think the allegation of the amended complaint would be sufficient, for it is alleged that the “charging, collecting, and receiving of said interest was done by said defendant with full knowledge that the same was illegal and wrongful.”

We find no error.

The judgment is affirmed.  