Akron Printing & Paper Co. v. Chevaliers

Summit Circuit Court

Akron Printing & Paper Co. v. Chevaliers

32 Ohio C.C. Dec. 683, 18 Ohio C.C. (n.s.) 195

DecidedJuly 1, 1907

StatusPublished

This text of 32 Ohio C.C. Dec. 683 (Akron Printing & Paper Co. v. Chevaliers) is published on Counsel Stack Legal Research, covering Summit Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Akron Printing & Paper Co. v. Chevaliers, 32 Ohio C.C. Dec. 683, 18 Ohio C.C. (n.s.) 195 (Ohio Super. Ct. 1907).

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Opinion

HENRY, 3.

The parties here stand as they stood below and the error assigned is upon the sustaining of a demurrer to the petition. Upon careful consideration we think the action to subject the statutory liability of trustees of a corporation not for profit, is placed by statute on the same footing as a stockholders’ liability suit, and that it is governed as to matters of procedure by Sec. 3261 et seq. (Sec. 8666 G-. C.). There are some anomalies in this practice as to joinder of causes of action and parties, but the statute must of course prevail. The demurrer should therefore have been overruled if this petition conforms to the practice thus defined, and if it presents no other defect. We think it does conform to the statute, but we have had grave doubt-whether it is otherwise impervious to demurrer.

It counts upon an account stated and a subsequent open account without, however, reciting the items of the account, or making the exhibit containing it a part of the petition. It then connects the defendant trustees therewith by averring that when the “items” of said indebtedness “accrued” the individual defendants were trustees of the corporation. If this means items of the account there is no account pleaded and the petition is bad. If the account stated can be called an item of the indebtedness that objection is cured. If the word “accrued” means incurred, or became a part of the claim asserted, instead of matured, as is ordinarily its signification, that difficulty is 'like[684]*684wise removed. It is perhaps a strained construction that will save the petition but we construe the petition liberally and hold that it states a cause of action prima facie.

The judgment will therefore be reversed and the cause remanded.

Winch and Marvin JJ., concur.

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HENRY, 3.

The parties here stand as they stood below and the error assigned is upon the sustaining of a demurrer to the petition. Upon careful consideration we think the action to subject the statutory liability of trustees of a corporation not for profit, is placed by statute on the same footing as a stockholders’ liability suit, and that it is governed as to matters of procedure by Sec. 3261 et seq. (Sec. 8666 G-. C.). There are some anomalies in this practice as to joinder of causes of action and parties, but the statute must of course prevail. The demurrer should therefore have been overruled if this petition conforms to the practice thus defined, and if it presents no other defect. We think it does conform to the statute, but we have had grave doubt-whether it is otherwise impervious to demurrer.

It counts upon an account stated and a subsequent open account without, however, reciting the items of the account, or making the exhibit containing it a part of the petition. It then connects the defendant trustees therewith by averring that when the “items” of said indebtedness “accrued” the individual defendants were trustees of the corporation. If this means items of the account there is no account pleaded and the petition is bad. If the account stated can be called an item of the indebtedness that objection is cured. If the word “accrued” means incurred, or became a part of the claim asserted, instead of matured, as is ordinarily its signification, that difficulty is 'like[684]*684wise removed. It is perhaps a strained construction that will save the petition but we construe the petition liberally and hold that it states a cause of action prima facie.

The judgment will therefore be reversed and the cause remanded.

Winch and Marvin JJ., concur.

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32 Ohio C.C. Dec. 683, 18 Ohio C.C. (n.s.) 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akron-printing-paper-co-v-chevaliers-ohcirctsummit-1907.