Opinion filed May 3, 1938.
Suit to Enforce Double Liability on Bank Stock — Sufficiency of Bill in Equity Determined Only by Allegations of Fact — No Consideration of Fact Not Appearing on Face of Bill — Alleging and Proving Laws of Another State — Such Law to Be Specifically Set out — Foreign Law Not So Set out Not Considered on Demurrer — Continuance of Double Liability Not Inferred — Incidence of Double Liability — Demurrer Held Properly Sustained Where Stock Disposed of — Ground of Decree Immaterial.
1. Sufficiency of bill in equity is to be determined on demurrer only by allegations of fact contained therein, and allegations amounting to conclusions of law are not admitted by demurrer and are to be disregarded.
2. In determining sufficiency of bill in equity on demurrer thereto no fact can be considered unless it appears on face of bill.
3. When suit is based upon laws of another state which are relied on as conferring the cause of action, they must be alleged as facts and proved as facts, whether proof is addressed to court or to jury.
4. Where plaintiff relies upon constitutional or statutory provisions or court decisions of another state, they must be so specifically set out in bill or declaration that court can see that plaintiff has right of action thereunder.
5. In suit in equity by creditor against former stockholder of Illinois bank to enforce double liability, where foreign law claimed to be applicable was not specifically set out in bill but was only affirmation of pleader, allegations with respect thereto were only conclusions of law and not for consideration in ruling on demurrer to bill.
6. In such suit, provision of Illinois constitution imposing double liability on holders of bank stock recited in bill did not warrant inference that under Illinois law liability of stockholder continues after he has disposed of his stock.
7. In absence of statutory provisions to the contrary, double liability with respect to bank stock attaches to stock, adheres to it, and on sale of stock follows it into hands of new owner.
8. In suit in equity by creditor against former stockholder of Illinois bank to enforce double liability, where there was no adequate allegation in bill warranting inference that, under Illinois law, liability of stockholder continues after he has disposed of stock, and where bill showed that defendant ceased to be stockholder more than a year before auditor of Illinois took over bank, demurrer to bill was properly sustained.
9. Where decree in suit in equity was to be affirmed on appeal, question whether court below based decree on ground specified by Supreme Court was immaterial.
APPEAL IN CHANCERY. Bill brought by creditor of insolvent Illinois bank to enforce against former stockholder so-called double liability under constitution and statutes of Illinois. The defendant demurred to the bill. Heard on demurrer at the June Term, 1937, Bennington County, Sturtevant, Chancellor. Demurrer sustained and bill dismissed. The plaintiff appealed and filed a bill of exceptions. The opinion states the case. Affirmed and remanded.
Lawrence O'Brien, and Leonard Leonard, of Chicago, Ill., for the plaintiff.
Fenton, Wing Morse and John A.M. Hinsman for the defendant.
Present: POWER, C.J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
This is a chancery suit wherein the plaintiff, a nonresident creditor of the insolvent Chicago Bank of Commerce, chartered and domiciled in the state of Illinois, seeks to enforce for his own benefit and that of his fellow-creditors, against the defendant, a resident stockholder of that bank, a so-called double liability under the constitution and laws of such foreign state. The bill was demurred to, the demurrer was sustained, the bill was dismissed, and the plaintiff appealed.
So, the only question presented is one of pleading. Many causes of demurrer are assigned, but the real question is this: Are the allegations, in the aggregate, sufficient to state a cause of action enforceable in a court of equity in this State?
We agree with the defendant when he says that it is only by the allegations of fact contained in the bill that its sufficiency is to be determined, Murtey v. Allen, 71 Vt. 377, 380, 45 A. 752, 76 A.S.R. 779; allegations amounting to conclusions of law are not admitted by the demurrer and are to be disregarded, Holman v. Randolph Nat. Bank, 98 Vt. 66, 74, 126 A. 200; and no fact can be considered unless it appears on the face of the bill, Vermont Hydro-Electric Corp. v. Dunn, 95 Vt. 144, 152, 112 A. 223, 12 A.L.R. 1495.
We also agree with him when he says that the allegations in paragraph 12 of the amended bill as to what the law of Illinois is, are mere conclusions of law, and not allegations of facts. When, as here, a suit is based upon the laws of another state which are relied upon as conferring the cause of action, they must be alleged and proved. They must be alleged as facts and proved as facts. Pickering v. Fisk, 6 Vt. 102, 105; Ward Co. v. Morrison, 25 Vt. 593, 601; Jenness v. Simpson, 81 Vt. 109, 111, 69 A. 646, 130 A.S.R. 1029; Wellman v. Mead, 93 Vt. 322, 323, 337, 107 A. 396; Grow v. Washburn, 95 Vt. 370, 373, 115 A. 226. This is so whether the proof of such laws is addressed to the court or to the jury. Where reliance is placed upon constitutional provisions, statutory provisions or court decisions, they must be so specifically set out in the bill or declaration that the court can see that the plaintiff has a right of action thereunder. If they are not so set out, and as here the foreign law is the affirmation of the pleader, they are only his conclusions of law and go for naught. In the Jenness case, it was expressly held that averments like those under discussion were insufficient.
Being only conclusions of law, they are not admitted by the demurrer and are not for consideration thereunder.
So far, then, as the laws of the state of Illinois are concerned, the plaintiff must find the cause of action which he seeks to enforce in the terms of the constitutional provision recited in the bill as follows: "Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder."
This is all we have to go by. From it, we can deduce some of the propositions advanced as the law of Illinois by the plaintiff. But there is no adequate allegation in the bill warranting an inference that, under the Illinois law, the liability of a stockholder continues after he has disposed of his stock. This leaves their law just like ours in the respect specified. In the absence of statutory provisions to the contrary, the double liability attaches to the stock, adheres to it, and on sale of the stock the liability follows it into the hands of the new owner. Barton Nat. Bank v. Atkins, 72 Vt. 33, 40, 47 A. 176.
This leaves the plaintiff with no right of action against the defendant, for the bill shows that the defendant only held his stock until January 7, 1931, and it was not until June 25, 1932, that the auditor of Illinois took over the bank. This is the inevitable result of the allegations and lack of allegations in the bill. The demurrer was properly sustained.
The court below may or may not have based its decree on the ground here specified. But as the result is an affirmance, that question is wholly immaterial. Biow Co. v. Cohen, 99 Vt. 78, 81, 130 A. 589, 52 A.L.R. 586.
Decree affirmed and cause remanded.