Metro. Stock Exch v. Lyndonville Nat. Bank

• Decision Date: 27 February 1904
• Citation: 76 Vt. 303,57 A. 101
• Court: Vermont Supreme Court
• Parties: METROPOLITAN STOCK EXCH v. LYNDONVILLE NAT. BANK.

57 A. 101

76 Vt. 303

METROPOLITAN STOCK EXCH

v. LYNDONVILLE NAT. BANK.

Supreme Court of Vermont. Caledonia.

Feb. 27, 1904.

Exceptions from Caledonia County Court; watson, Judge.

Action by the Metropolitan Stock Exchange against the Lyndonville National Bank. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

Argued before TYLER, MUNSON, START, STAFFORD, and HASELTON, JJ.

May & Simonds, for plaintiff.

Dunnett & Slack, for defendant.

HASELTON, J. This was an action of general and special assumpsit. Special counts—two in number—set out promises and undertakings on the part of the defendant regarding a transaction in respect to shares of the United States Rubber Company, and a breach of such promises and undertakings, resulting in damage to the plaintiff. The defendant filed pleas, the second of which was, in brief, to the effect that the supposed promises and undertakings set out in the declaration related solely to an alleged supposed purchase by the defendant from the plaintiff of such shares, and that at the time in question the defendant was a national bank, without power or authority to make such alleged purchase. To this plea the plaintiff filed a replication, which, though somewhat like a special traverse, is in its general structure and purpose a replication de injuria. It contains the characteristic allegation that "the said defendant of its own wrong, without the cause by the said defendant in its said second plea above alleged in that behalf, disregarded its said promises and agreement." To this replication the defendant demurred. The demurrer was sustained, and the replication adjudged insufficient.

The replication de injuria, though peculiarly applicable in actions of tort is, under a rule of practice now grown familiar, allowable in actions of assumpsit to meet a plea which merely sets up matter of excuse for the nonperformance of a promise or undertaking. But the plea of ultra vires here interposed denies the making of the alleged agreement, on the ground that the plaintiff could not make it in the nature of things, it is no reply to such a plea to allege that the defendant of its own wrong, and without the cause alleged in the plea, disregarded its promise and agreement.

This replication closes with a denial that the alleged promises and agreement of the defendant were beyond its power to make. It is urged in behalf of the plaintiff that this is a traverse of fact; the ground of the argument being that, as the states of the Union are foreign to each other, so the federal government and each state are foreign each to the other, and that a statute of one is a fact to be pleaded and proved in the courts of the other, if there relied on. But in each state the acts of the Legislature of that state and the acts of Congress operate alike upon every one, and alike claim recognition and due application by the courts. The public statutes of the general government are no more facts to be alleged and proved in the courts of a state than are the public statutes of that state. Under our complex system, there are in every state two bodies of statutory law, equally entitled to direct recognition. When questions relating to bankruptcy, naturalization, the national banking system, coinage and currency, patents,...