A consideration of the cases bearing upon this point convinces me that the trust company had the legal right to enter into the contract, and is liable to the holders of the bonds for the payment of the amount due on the coupons.
The last specific defense contained in the original answer claims that the alleged contract or guaranty is not binding, because of lack of consideration. It is apparent from the proofs that the transaction was a sale of the bonds for the account of the trust company; the purchase price went to it and the consideration appears to be a valuable one. Recent decisions in the state courts sustain the responsibility of trust companies under somewhat similar conditions.
By amendment defendant pleads that the plaintiffs' action cannot be sustained, because the mortgage which secured the bonds has not been foreclosed, and under this defense defendant insists there can be no recovery.
As suggested, this is an independent action on a guaranty, is not a proceeding against a mortgagor, and I am satisfied is not forbidden by the statute requiring foreclosure before proceeding on the bond.
The jurisdiction of the court is questioned because of the fact that there is no distinct allegation in the complaint showing that the amount in controversy is $3,000 or over. The facts in the complaint, however, conclusively show the actual amount is in excess of $3,000, and this has been held sufficient to give the court jurisdiction.
Defendant also contends that the plaintiffs are acting in the capacity of collectors for sundry holders of the bonds and coupons; that the citizenship of the individuals interested may not be diverse, and each may not, individually, have a claim sufficient in amount to justify this court in taking jurisdiction. The proofs show that plaintiffs are acting as a committee for sundry holders of bonds, a number of said holders being residents of New Jersey, and most or all of whom probably are personally entitled to less than the amount required to give this court jurisdiction. It appears, however, that the committee are, under the provisions of a deposit agreement, the legal and equitable owners of the bonds and coupons, and entitled to sue thereon.
This question has been recently determined in the Supreme Court of the United States in the case of Bullard et al. v. City of Cisco, 290 U.S. 179, 54 S. Ct. 177, 181, 78 L. Ed. 254, 93 A.L.R. 141. In that case the court said:
"To summarize, we think it apparent from the agreement as a whole that resort to litigation was not the principal thing in mind when it was being made, and that what was intended was to invest the trustees with full title and such discretionary powers as might enable them to effect a helpful adjustment of the situation through refinancing, composition, exchange of securities and other means, including litigation if needed.
"As the transfers under which the plaintiffs held the bonds and coupons were made to them as trustees, were real and not simply for purposes of collection, and invested them with the full title they were entitled by reason of their citizenship and of the amount involved, to bring the suit in the federal court. The beneficiaries were not necessary parties and their citizenship was immaterial." (Citing cases.)
290 U.S. 190, 54 S. Ct. 181, 78 L. Ed. 254, 93 A.L.R. 141.
I conclude that none of the pleas or defenses raises a disputed question of fact requiring the submission of the case to a jury, and therefore the answer and defenses will be stricken, and summary judgment ordered in accordance with the claim in the complaint.
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