Miller v. Aldrich

202 Mass. 109 | Mass. | 1909

Sheldon, J.

In the argument of this case counsel on both sides have referred to the decisions of the courts of Colorado as showing the law of that State. But as any question of foreign law including the law of any other State must be treated here as a question of fact, we cannot go beyond the averments of the declaration to ascertain either the common or the statutory law of Colorado, except as we may be aided by the presumption that the common law of that State is the same as our own. Demelman v. Brazier, 193 Mass. 588, 592. Cherry v. Sprague, 187 Mass. 113. Accordingly we cannot consider or refer to any of the Colorado decisions which have been cited to us, except as evidence of the common or general law, just as we may and do refer to decisions rendered elsewhere. Whatever is well averred in the declaration as to the law of Colorado must now be taken to be true. Hancock National Bank v. Ellis, 166 Mass. 414, 419. Hanley v. Donoghue, 116 U. S. 1.

There is much ground for upholding the defendant’s contention that on the face of the plaintiffs’ declaration the right of action which they seek to enforce accrued on June 15, 1899, when the State Bank of Monte Vista became insolvent and made an assignment of all its assets for the benefit of its creditors, and so that this action is barred by the statute of limitations. Bennett v. Thorne, 36 Wash. 253, and cases there cited. But it does not follow that the demurrer can be sustained for this reason. That ground of defense must be taken by answer, and not by demurrer. Hodgdon v. Haverhill, 193 Mass. 327, 330, and cases there cited. McRae v. New York, New Haven, & Hartford Railroad, 199 Mass. 418. We proceed accordingly to consider other grounds of demurrer.

The plaintiffs do not seek to maintain this action as creditors. Indeed, except inferentially, there is no averment that they are themselves creditors. They rest their right upon a decree of the Colorado court by which they were appointed to represent the creditors and to collect for the creditors the amount of the corporate indebtedness which the bank is unable to pay. We do not doubt that all stockholders, including the defendant, would be bound by proceedings properly taken in the Colorado court to determine their liability. But it does not appear that the proceedings taken in Colorado were in accordance with the provisions of any statute or rule of law' fixed by the decisions of its courts and in force when the defendants became stockholders and incurred their contractual liability as such. The reason for the rule adopted in Converse v. Ayer, 197 Mass. 413, Francis v. Hazlett, 192 Mass. 137, and Howarth v. Lombard, 175 Mass. 570, fails here. The difficulty is not merely as to the plaintiffs’ right to sue in their own names. Though not called receivers, they yet might perhaps be shown to have become quasi assignees of the right of action within the rules stated in Howarth v. Lombard, 170 Mass. 570, 579, and Bernheimer v. Converse, 206 U. S. 516, 534. But the difficulty goes deeper. It does not appear that the statute of Colorado, as construed by its courts, has provided any remedy for its enforcement which can be made available outside that State. Erickson v. Nesmith, 15 Gray, 221; S. C. 4 Allen, 233. Clark v. Knowles, 187 Mass. 35. That did appear or was assumed, so far as we have been able to ascertain, in the cases in which, under similar circumstances, suits like this have been sustained against the domestic stockholders of foreign corporations. See, beside cases already referred to, Bank of North America v. Rindge, 154 Mass. 203 ; Abbott v. Goodall, 100 Maine, 231; Pulsifer v. Greene, 96 Maine, 438; Miller v. Willett, 4 Rob. (N. J.) 396; Olson v. Cook, 57 Minn. 552; Terry v. Little, 101 U. S. 216 ; Fourth National Bank v. Francklyn, 120 U. S. 747.

This action is not in any sense brought to enforce a judgment rendered by the Colorado court; it seeks only to enforce the defendant’s original statutory liability. Great Western Telegraph Co. v. Purdy, 162 U. S. 329, 337, et seq. Hale v. Allinson, 188 U. S 56, 81. Bennett v. Thorne, 36 Wash. 253, 259. That court did not assume to give any judgment against the non-resident stockholders. But it does not appear that there is or was in Colorado any statute or any fixed rule of law authorizing such proceedings as were had and so making them final and conclusive upon all stockholders as being represented by the corporation itself. The statute set out in the declaration merely established a rule of practice. It cannot be given any further effect.

Accordingly the order of the Superior Court overruling the demurrer must be reversed,- and the demurrer must be sustained for the third reason therein assigned.

So ordered.