Irish v. Sunderhaus

Pleading—Presumption of Continuance.—The presumption of continuance is a rule of evidence and not of pleading; but, although a complaint may be found wanting upon special demurrer for absence of an allegation of the continuance of a title averred, yet, after judgment, or upon a general demurrer, the pleading will be sustained.

Corporation—Action Against Stockholders—Assignment of Claims of Creditors—Continued Ownership—Sufficiency of Complaint. In an action by an assignee of the claims of certain creditors of a corporation against its stockholders, where the complaint alleged that each of the claims “was duly assigned to the plaintiff before the commencement of the action,” but did not aver that plaintiff was still the owner of the claims, it is subject to special demurrer for want of a direct averment of continued ownership thereof; yet, in the absence of a special demurrer, the complaint shows by fair intendment that the plaintiff was the owner of the claims at the time of the commencement of the action, and the objection, for the want of direct averment, cannot be urged for the first time upon appeal.

Id.—Insufficient Defense—Release by Proposed Purchaser of Claims —Agreement with Attorney for Collection.—A release of the stockholders defendant pending the suit by one who had agreed conditionally to purchase the claims of the creditors involved in the action, from an attorney for such creditors, who had represented them as petitioners for an adjudication in insolvency against the corporation, and to whom they had assigned their claims for collection from the assets of the corporation, without sale of their claims to him, or authority to sell them, the conditions of the agreed purchase never having been fulfilled, is an insufficient defense to an action against the stockholders by a direct assignee of such creditors.

Id.—Purchase of Assets of Corporation.—The fact that in lieu of such proposed purchase of the claims of the creditors, a purchase of the assets of the insolvent corporation was arranged between the proposed purchaser and the attorney for the creditors, and that the assets were distributed to the creditors in the manner agreed upon in the original proposal to purchase the claims, does not entitle the purchaser of the assets to have the claims of the creditors transferred to him by the attorney under the proposed conditional contract to purchase the claims.

Id.—Evidence—“Understandings” of Witness—Effect of Contract. The “understandings” of one of the defendant stockholders as a witness, as to the effect and operation of the contract between the releasor of the defendants and the attorney for the creditors whose claims are involved in the suit, are not evidence, and should not be received.

Id.—Rulings Rendered Immaterial by Finding.—Exception to rulings as to the admission of evidence having reference only to the case of the defendants against the attorney for the creditors, assignees of plaintiff under the agreement made with him by defendants’ releasor, are rendered immaterial by a finding sustained by the evidence that the claims of the creditors were assigned to the attorney for collection only.