Miller v. Aldrich

• Decision Date: 20 May 1909
• Citation: 202 Mass. 109,88 N.E. 441
• Parties: MILLER et al. v. ALDRICH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 109

88 N.E. 441

MILLER et al. v. ALDRICH.

Supreme Judicial Court of Massachusetts, Worcester.

May 20, 1909

COUNSEL

Wm. Reed Bigelow and Tolles & Cobbey, for plaintiffs.

H. L Parker and Charles H. Hanson, for defendant.

OPINION

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, 79 N.E 812; Cherry v. Sprague, 187 Mass. 113, 72 N.E. 456 67 L. R. A. 33, 105 Am. St. Rep. 381. 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, 44 N.E. 349, 55 Am. St. Rep. 414; Hanley v. Donoghue, 116 U.S. 1, 6 S.Ct. 242, 29 L.Ed. 535.

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 accured 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, 78 P. 936, 68 L. R. A. 113, 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, 79 N.E. 818, and cases there cited; McRae v. New York, New Haven & Hartford Railroad, 199 Mass. 418, 85 N.E. 425. 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. 443, 84 N.E. 98 Francis v. Hazlett, 192 Mass. 137, 78 N.E. 405, 116 Am. St. Rep. 230, and Howarth v. Lombard, 175 Mass. 570, 56 N.E. 888, 49 L. R. A. 301, fails here. The difficulty is not merely as to the plaintiff's 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, 175 Mass. 570, 579, 56 N.E. 888, 49 L. R. A. 301, and Bernheimer v. Converse, 206 U.S. 516, 534, 27 S.Ct. 755, 51 L.Ed. 1163. 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, 22, Id., 4 Allen, 233; Clark v. Knowles, 187 Mass. 35, 72 N.E. 352, 105 Am. St. Rep. 376. 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, 27 N.E. 1015, 13 L. R. A. 56, 26 Am. St. Rep. 240; Abbott v. Goodall, 100 Me. 231, 60 A. 1030; Pulsifer v. Greene, 96 Me. 438, 52 A. 921; ...