¶1Plaintiffs are stockholders in the Accessory Transit Company, a corporation duly created, and in behalf of themselves and others similarly situated bring this action, to charge defendant for moneys received by him while acting as an agent of the corporation, under a written contract of employment and agency, made between himself and the cor- ' poration. Tho complaint is demurred to on the ground that sufficient facts are not stated to give the plaintiffs a right of action.
¶2The complaint does not allege that the corporation by its directors and managing officers refuses to bring an action in the name of the corporation. For aught that appears, or is alleged, it may have brought one for the same cause which is now pending. The corporation is not a party to this action.
¶3It is not obvious on what principle Garrison can 'be exempted from liability to the corporation, even if it could be established that all the business the corporation, employed him to transact was not clearly within its corporate powers. He acted as its agent, and received the moneys as its moneys. There is an obvious difference between an action by the stockholders against the directors and managing officers themselves, for misapplying and squandering the corporate funds; and one against an agent whom they have appointed to do particular acts, to recover of the latter moneys he has received, and which by his contract he should pay to the corporation itself.
¶4Judgment for the defendant on the demurrer, unless plaintiffs amend in twenty days, which they may do as advised, on payment of the costs of the demurrer.