more for the benefit of all who have such common or general interest, without showing that the parties are very numerous, or that it would be impracticable to bring them all before the court. This latter provision applies indiscriminately to all actions, whether they involve questions of common interest or not.

I think the judgment should be reversed, and that the plaintiffs should have judgment upon the demurrer, with liberty to the defendants to answer upon payment of costs.

TOBIN v. PORTLAND MILLS COMPANY.

Supreme Court of Oregon. 1902.

41 Oregon, 269.

This is a suit by Ida M. Tobin, Mary Black, H. C. Davis, W. H. Gulliford, B. F. Allen, James A. Smith, John Davis, John M. Porter, Alexander Powers, and Robert Andrews against the Portland Flouring Mills Company and the Salem Flouring Mills Company, corporations, Stephen Williamson, Robert Balfour, Robert B. Foreman, Alexander Guthrie, Robert Bruce, and Walter J. Burns, partners as Balfour, Guthrie & Co., and James C. Black as administrator of the estate of Thomas J. Black, deceased, to compel the defendants to account for wheat received from Black.

It is alleged in the complaint, in substance, that plaintiffs bring this suit for themselves and all others similarly interested, whose consent to become parties plaintiff could not be secured, because of their number; that Thomas J. Black died intestate November 29, 1899, and the defendant James C. Black was appointed administrator of his estate, who duly qualified and entered upon the performance of his trust; that Black at the time of his death, and for about three years prior thereto, operated warehouses at Halsey and Cummings, in Linn county, and at Derry, in Polk county, during which time he received in storage as a warehouseman large quantities of wheat, for which he issued warehouse receipts and load checks; that at the time of his death there were outstanding receipts and checks for about

40,000 bushels of wheat stored at Halsey, of which all but about 15,000 was stored prior to 1899, and for wheat at the Cummings and Derry warehouses 16,000 and 20,000 bushels, respectively; that the wheat so stored was in part sacked, and the remainder in bins, and that the title thereto was in the plaintiffs and other depositors, who at no time gave their consent to remove any part of said grain; that at the time of Black's death there was stored at Halsey about 27,000 bushels, at Cummings 18,000, and at Derry 20,000 bushels, aggregating 58,000 bushels of wheat, which quantity lacked about 13,000 bushels of meeting the demands of those holding receipts and load checks; that the decedent while operating these warehouses shipped from time to time large quantities of wheat therefrom to the defendants, without the knowledge or consent of the plaintiffs or other depositors, and at the time of his death there was and now is held in store by the Portland Flouring Mills Company, at Oregon City, 9,296 29/60 bushels, by Balfour, Guthrie & Co. 2,446 20/60 bushels, and by the Salem Flouring Mills Company at Salem 3,977 45/60 bushels of this wheat, the property of the plaintiffs and of those for whom this suit is instituted; that, prior to the commencement thereof, plaintiffs demanded said wheat of the defendants, but they refused to deliver any part of it; that plaintiffs cannot state how much wheat was shipped by Black to the defendants, respectively, in 1899, nor how much during the preceding years, nor how much of the loss, if any, should be sustained by the depositors, nor can they do so until a complete accounting has been made.

Plaintiffs further allege, upon information and belief, that the three buildings were conducted as one warehouse, and that the decedent paid those of the depositors who from time to time sold grain to him out of the proceeds of grain shipped indiscriminately from said warehouses; that the estate of the intestate is insolvent, and unless the plaintiffs and those in behalf of whom this suit is instituted can trace the grain so shipped, and now in the possession of said defendants, and wrongfully withheld by them, they are without remedy; that there are from 100 to 250 depositors who hold receipts and load checks for wheat stored in said warehouses, and that it would be impracticable, and necessitate as many suits as there are depositors, to ascertain the amount of the loss, and how much each should sustain in

case the defendants are permitted to retain the wheat so delivered to them; and that a receiver should be appointed to take charge of said warehouses, in order to protect the rights of the several depositors.

A demurrer to the complaint on the ground of nonjoinder of parties plaintiff and misjoinder of parties defendant, improper joinder of causes of suit, and that the complaint did not state facts sufficient to constitute a cause of suit, having been overruled, the defendants the Portland Flouring Mills Company and the Salem Flouring Mills Company answered separately, denying the material allegations of the complaint, but admitted that they had received the quantities of wheat alleged in the complaint, on account of which they had made advances, and averring that, without knowledge or notice that any other than Black had any right to said. wheat, they acted in good faith, and allege that he was the owner thereof, and had authority to ship the same, and to give liens thereon for said advances.

Replies put in issue the allegations of new matter in the answers, whereupon a trial was had, and the testimony taken, from which the court found that there were at the time of Black's death outstanding receipts and checks for wheat received and stored at the warehouse at Halsey, 40,881 bushels, belonging to 101 depositors, stating their names, and giving the quantity of wheat deposited by each; that Black had shipped from said warehouse without the consent of the depositors 11,475 53/60 bushels of wheat, leaving only 29,306 47/60 bushels; that of the wheat so shipped, the Portland Flouring Mills Company received 8,424 bushels, and the Salem Flouring Mills Company 3,051 54/60 bushels, of the value of 49 cents per bushel,-and decreed that the plaintiffs recover from the Portland Flouring Mills Company $4,126.76, and from the Salem Flouring Mills Company $1,495.20, to be paid into court for distribution by the receiver among the plaintiffs and those for whose benefit the suit was instituted, as the court should thereafter determine. From which decree the Portland Flouring Mills Company and the Salem Flouring Mills Company appeal.

Mr. Justice MOORE, after stating the facts, delivered the opinion of the court:

It is contended by appellants' counsel that the depositors of wheat in the warehouses are not so numerous as to entitle

the plaintiffs to represent them, and that the court erred in decreeing a recovery of any wheat, or of the value thereof, in favor of any person other than the plaintiffs. That part of the decree which requires the appellants to pay into court the sums awarded, to be distributed by the receiver to those for whose benefit the suit was instituted, is sought to be justified by invoking section 385, Hill's Ann. Laws Or., which is as follows: "Of the parties to the suit, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." The averment of the complaint calling this statute into requisition is as follows: "The plaintiffs, for cause of suit against the defendants, allege that they bring this suit in their own names for themselves and on behalf of all others similarly situated and interested in the subject-matter of the suit; and plaintiffs allege, and it will more fully appear from the allegations of the complaint hereinafter contained, that it is impracticable to unite all the parties in interest herein, because they are too numerous, and scattered over such an expanse of territory that their consent to the institution of this suit cannot be first had and obtained." The wheat so deposited in the warehouse when commingled belonged to the depositors, who were tenants in common thereof, having such an undivided interest therein as the quantity stored by each bore to the amount de

1 This provision allowing actions to be prosecuted or defended by one or more as representing a class, in the two cases specified therein, is found, in practically identical language, in most of the codes. See Alaska, Carter's Ann. Codes, 1900, Code Civ. Pro., § 39; Arizona, Rev. Stat., 1901, § 1313; Arkansas, Kirby's Digest, 1904, § 6008; California, Kerr's Codes, 1908, Code Civ. Pro., § 382; Colorado, Rev. Stat., 1908, Code Civ. Pro., § 12; Connecticut, Gen. Stat., 1902, § 619 (somewhat different provision); Idaho, Rev. Codes, 1908, § 4105; Indiana, Burn's Ann. Stat., 1908, § 270; Iowa, Code, 1897, § 3464; Kansas, Gen. Stat., 1909, § 5630; Kentucky, Carroll's Codes, 1895, § 25; Minnesota, Laws, 1905, § 4053; Montana, Rev. Codes, 1907, § 6491; Nebraska, Comp. Stat., 1911, § 6610; Nevada, Comp. Laws, 1900, § 3109; New York, Chase's Code Civ. Pro., 1910, § 448; North Carolina, Revisal of 1905, §.411; North Dakota, Rev. Codes, 1905, § 6818; Ohio, Gen. Code, 1910, § 11257; Oklahoma, Comp. Laws, 1909, § 5570; South Carolina, Code of Laws, 1902, Code Civ. Pro., § 140; South Dakota, Rev. Codes, 1903, Code Civ. Pro., § 89; Utah, Comp. Laws, 1907, § 2917; Washington, Rem. & Bal. Codes, 1910, § 190; Wisconsin, Stat., 1898, § 2604; Wyoming, Comp. Stat., 1910, § 4326,

posited. Brown v. Northcutt, 14 Or. 529, 13 Pac. 485; Hamilton v. Blair, 23 Or. 64, 31 Pac. 197. If Black shipped to the appellants any of the wheat that belonged to the depositors, without their consent, whereby a deficiency occurred in the quantity so commingled, rendering it impossible for a depositor to show the extent of his loss, a court of equity could afford relief by bringing all the parties before it, and doing complete justice between them, by ascertaining the deficiency in the joint property, and decreeing a recovery of the grain, if it could be discovered, or, failing in that respect, apportioning the loss pro rata among the joint owners. Dole v. Olmstead, 36 Ill. 150, 85 Am. Dec. 397; Greenleaf v. Dows (C. C.), 8 Fed. 550.

The right of the plaintiffs to maintain this suit for all the parties interested in the subject-matter is based on the averment of the complaint to the effect that the depositors are so numerous as to render it impracticable to bring them all before the court. It is a familiar rule in equity that the rights of no person shall be adjudicated unless he is present or given an opportunity to be heard, and that, when a decree is rendered affecting any subject-matter, the rights of all persons immediately interested therein shall be protected as far as they reasonably may be. Judge Story, in his work on Equity Pleading (9th Ed. § 72), in speaking upon this subject, says: "It is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject-matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented. Hence the common expression that courts of equity delight to do justice, and not by halves." Courts of law require no more parties to an action than those immediately interested in the subject-matter, but in equity all persons, including those remotely interested therein, may be joined, and are often necessary parties. Story, Eq. Pl. § 76. The same author, speaking of certain deviations from the rule, says: "The most usual cases arranging themselves under this head of exceptions are (1) where the question is one of a common or general interest, and one or more may 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