The Wisconsin Marine & Fire Ins. Co. Bank vs. Mann and another. suitable to express it, equity will correct the writing, in the absence of circumstances to prevent a resort to the equitable remedy. The sole remaining question is, Are the findings and judgment fatally defective for failure to state the exact change of language requisite to be made in the written contract in order to make it conform to the verbal contract? Appellant's counsel contend that they are, and invoke a rule, good in some cases, but not in one like this. Where a failure to actually reform the instrument will work some injury, it is a proper subject for review on appeal. Cases cited by appellant where reformation of a conveyance of land was sought belong to that class. It is important to have mistakes in an instrument forming part of a chain of title actually reformed by having written into it the language necessary to make it conform to the intention of the parties. But here the contract has been executed, the effect of the instrument as reformed has passed into judgment, and there is no further use for it whatever. Nothing in which plaintiff is interested. depends upon having the exact words requisite to a reformation of the contract determined and inserted in it. So, if the trial court erred in failing to actually reform the instrument before entering judgment, it is a mere irregularity, working no injury or prejudice whatever to appellant, therefore it is no ground for a reversal of the judgment. Scott v. Webster, 44 Wis. 185; Dousman v. Wis. & L. S. M. & S. Co. 40 Wis. 418; Pormann v. Frede, 72 Wis. 226; Bilgrien v. Dowe, 91 Wis. 393. Sec. 2829, R. S. 1878, applies: "The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." That has often been said to cover a multitude of harmless errors. It promotes quietude and peace between George vs. Benjamin. litigants when their substantial rights have been effectually protected by the judgment. The foregoing covers all questions that are considered of sufficient importance to require mention in this opinion. The facts forming the subject of controversy are established by the evidence beyond reasonable controversy. The legal conclusions drawn from such facts by the trial court were correctly drawn. Substantial justice has been done by the judgment that was pronounced and from which the appeal was taken. It must be affirmed. By the Court.- So ordered. GEORGE, Respondent, vs. BENJAMIN, Appellant. September 23 — October 11, 1898. Parties: Action by one on behalf of many: Partnership: Agreement to contribute to land syndicate: Remedies: Pleading: Definiteness. 1. Thirty-one persons, by written agreement, formed a "syndicate" to purchase, manage, and sell a tract of land, each agreeing to contribute a certain sum at once and thereafter to pay from time to time such sums as should be needed for payments on the land. One of their number was agreed upon as trustee to hold the title to the land, and he afterwards, in writing, declared a trust in favor of each of the subscribers to the extent of a one-thirty-first interest in the land. Meetings were held and assessments made to meet the payments becoming due on the land. Subsequently, by a resolution adopted at a meeting of the subscribers, plaintiff was authorized and directed to bring suit in his individual name, for and in behalf of himself and his associates, to collect the amount due upon said assessments from the defendant, one of the subscribers, who had accepted the declaration of trust and had attended meetings, but had paid only the first assessment. Held, that the subscribers were all united in interest and were, in legal effect, partners, so that the action could not be maintained by one on behalf of all, under sec. 2604, R. S. 1878, either on the ground that the ques George vs. Benjamin. tion was one of a common or general interest to many persons, or on the ground that the parties interested were so numerous that it was impracticable to bring them all before the court. 2. The action in the name of one only, on behalf of all, could not be sustained, in such case, on the ground that the syndicate was an “unincorporated company" or a "voluntary association," nothing having been done to give it the characteristics of such organizations, except to elect officers. 3. The cause of action stated not being one growing out of the transactions of the syndicate, a recovery might be had thereon in an action by the proper parties, without a dissolution of the partnership or an accounting. 4. If, in such a case, the defendant desired further information than was contained in the complaint as to the times when the instalments became due on the land contract, his remedy was by motion, not by demurrer to the complaint. APPEAL from an order of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed. This is an action at law, brought by plaintiff on behalf of himself and others, to recover the sum of $4,900, claimed to be due on a certain contract, under circumstances hereinafter detailed. The complaint contains seven causes of action, the statement of one being all that is necessary for the purpose of this suit. The facts alleged are substantially as follows: On July 2, 1892, the plaintiff, defendant, and twenty-nine other persons entered into a written agreement, as follows: "Know all men by these presents, that we, whose names are hereto subscribed, for and in consideration of the sum of one dollar to each of us in hand paid by the other, the receipt whereof is hereby confessed and acknowledged, and for and in consideration of the prospective profits to be realized from the purchase, management, and sale of about 1,700 acres of land under contract of purchase for our benefit at Barrington, in the state of Illinois, and for and on account of other good and valuable considerations to each of us paid by the other, the receipt whereof is hereby confessed George vs. Benjamin. and acknowledged, we do hereby stipulate, covenant, promise, and agree, each with the other, as follows: "1st. That there shall be organized an association to be known as the Barrington Land Company, or some other appropriate title to be hereafter mutually agreed upon, for the purchase, management, and sale of the land above referred to at Barrington, in the state of Illinois; that said association shall be controlled and managed by a board of directors, and proper officers to be selected from the parties in interest therein. "2nd. That prior to the perfecting of the organization aforesaid, that each of us shall contribute towards the preliminary expenses thereof, and to provide for whatever money shall be necessary as down payments to secure the title to said property, such sums from time to time as may be necessary therefor. "3rd. That each of us shall at once contribute, towards the purpose specified, the sum of three hundred (300) dollars, and that proceedings will be taken, as soon as possible, to perfect said organization and get the same in running order; and that in the future, from time to time, as the same shall be needed, we each hereby stipulate, promise, covenant, and agree, on account of the considerations herein expressed, to pay such sum or sums as shall be needed for future payments on said property as the same are demanded and required by the parties in interest herein. These agreements and stipulations are made upon the understanding that there is now under contract of purchase, as aforesaid, 1,687 acres of land, at an average cost of $117.03 per acre." The complaint further states that the parties to this contract did not become incorporated, but by agreement became a voluntary association under the name of the Barrington Land Syndicate; that Burton Johnson, one of the parties to the agreement, was agreed upon as trustee to hold the title to the land mentioned, who accepted the trust, and there George vs. Benjamin. after, in writing, declared a trust in favor of each of the parties to the extent of interest in the land; that each was to contribute toward the purchase price in accordance with his interest; that defendant accepted the declaration of trust, and had notice of and participated in the meetings of the syndicate; that, as payments became due on the land contracts, meetings were held, of which the defendant had due notice, and such assessments were made on each member, from time to time, as were deemed necessary to meet the same; that all of the parties interested, except the defendant and a few others, have paid the calls, and that a sum exceeding $125,000 had been paid in and used for the benefit of all concerned; that the calls made were necessary and needed to meet the demands against the syndicate on the contracts for the land involved, and necessary in order to prevent loss and forfeiture of the contracts, and that the amount demanded from the defendant was his proper proportion of the same; that eight calls had been made, and defendant had refused to pay all but the first one; that on January 19, 1897, the plaintiff was elected president of the syndicate, and at the same time a treasurer and secretary was elected; that at a meeting on January 14, 1897, of which all members had written notice, a resolution was adopted, authorizing and directing the plaintiff to take legal proceedings in court in his individual name, for and in behalf of himself and his associates in said enterprise, against the defendant, to collect the several amounts due upon the calls or assessments theretofore made. Then follows an allegation "that the question involved in this action is one of a common or a general interest to many persons, and that the parties interested and associated herein are very numerous, and that many of the parties interested here are not residents of the state of Wisconsin, but are residents of other states; that it is impracticable to bring all of said persons before the court; that this action is brought in the name of VOL. 100-40 |