Foss v. Peoples Gas Light & Coke Co.

Mr. Justice Holdom delivered the opinion of the court. The claimed rights of Doll not being involved in this record, with them we therefore have no concern. Our opinion and discussion on the errors assigned will be restricted to three points: (1) The refusal of the chancellor to allow the motion by Foss to amend his amended bill; (2) the insufficiency of the allegation of ownership of stock, and (3) the doctrine of laches as applied to the averments of the bill. First. The decision of the court upon the demurrers. was rendered May 2,. 1907. Foss did not at this time move the court for leave to file an additional amendment. He allowed the matter to rest undisturbed until the entry of the final decree, more than two months thereafter. The contention of counsel that the Foss demurrer was heard without their being afforded an opportunity to present their client’s cause, and that the hearing upon the demurrers was confined to the demurrer interposed to the amended cross-bill of Doll, is untenable and without force in the light of the record. Doll confessedly took whatever right he had after Foss filed his hill. The doctrine of Us pendens circumscribed Doll in his ability to prevail. Foss must first demonstrate that he had a cause of action before Doll could have any standing in virtue of his cross cause. Whatever rights Doll might have rested for their support upon the ability of Foss to maintain his cause. Doll had no rights independent of those of Foss. In the first instance, and as a preliminary to the right of either of them to prevail, the necessity arose for Foss to maintain that he was a stockholder as averred in-his pleadings. Failing this, all of Doll’s claims against the Gas Company disappear. The counsel of Foss were afforded ample opportunity to argue their cause; if they failed to avail of such opportunity when it offered, it is too late now to complain or seek any advantage or procure any indulgence because of such dereliction on their part. We are not able to believe that counsel for Foss were in any manner misled by the chancellor. Nothing appears in this record from which it can even be surmised that in the presentation of Doll’s cause counsel for Foss were not fully aware that both demurrers were on hearing. In fact, the cause and cross cause are so interdependent one upon the other, that an argument as to the sufficiency of the cross cause, as stated in Doll’s amended cross-bill, naturally involved a consideration of the Foss pleadings. Then, again, the record is contrary to the contention now made, which contention cannot prevail as against that record, which alike binds the parties and the court. The matter of allowing Foss to further amend his amended bill was addressed to the sound discretion of the chancellor. We are unable to say that a refusal to allow a further amendment on the motion made at the time of entering the final decree—a period of time exceeding two months from the rendering of the chancellor’s decision upon the demurrer—was an abuse of such discretion, especially in view of the fact that the chancellor rendered his opinion in writing, which was made a part of the record and from which it clearly appears that the chancellor heard both demurrers and in that opinion expressly sustained both of them. Second. The averment in the amended bill of Foss as to ownership of stock, is in these words: “that in or about the year 1857 he became, ever since has been and now is, a stockholder of the Peoples G-as Light & Coke Company, and the owner of 1500 shares, of the par value of fifty dollars * * * each, of the original capital stock of the said defendant corporation”. This is obviously the conclusion of the pleader, without the statement of any fact from which the court can say, as a matter of law, that Foss at one time or at any time since 1857, was or is a shareholder of the G-as Company. Did Foss receive any certificate of stock of the Gas Company? And if so, was it acquired from the Gas Company or by assignment of a certificate or certificates owned by a third party? Has Foss ever been a shareholder, whose rights as such have received recognition by the Gas Company? Has he ever voted at any stockholders’ meeting the stock which he says he owns Í There is no averment of any evidential fact supporting his claim, from which the court may be able to say, as a matter of law, that he is such owner. The cases are numerous, many of which are cited in the brief of counsel for the Gas Company, that an averment of an ultimate fact, without instance to support it, is but the conclusion of the pleader and insufficient to constitute a cause of action. The principle is well stated in Vol. 12, Ency. Plea. & Prac., 1020, thus: “To constitute good pleading the facts alone must be alleged. It is a general rule, which applies to all pleadings, whether at common law, in equity, or under the codes, that legal conclusions should not be pleaded, and that a bill, answer, complaint, declaration or other pleading is bad if it contains nothing more than bare averment of a legal conclusion”. The averment of ownership of stock by Foss in his amended bill is a conclusion of law entirely unsupported by the recitation of any fact tending to support such conclusion. It is therefore insufficient to support a cause of action. Such defect in the pleading made it obnoxious to the general demurrer interposed to it. This was so decided in Kilgore v. Ferguson, 77 Ill. 213, where it is said: “A familiar elementary rule of pleading is that the facts only are to be stated, and no arguments or inferences, or matter of law. Chitty Pl., 245. * * * It is not enough to.say the bond was good and sufficient. The existence of the facts should have been distinctly averred that make it good and sufficient. The question of whether it was good arid sufficient is for the court and not for the plaintiff to determine. Unless by facts averred and proved it shall clearly be made to appear that the defendants have wilfully and corruptly injured the plaintiff * * * there can in no event be a recovery. The demurrer was properly sustained”. If Foss is entitled to any relief at all, it must arise from his being a bona fide stockholder in the Gas Company. The averment in the bill in this regard is a mere conclusion, barren of any stated fact upon which it can rest for support; consequently the amended bill fails to state a cause of action. Third. There are two averments in the amended bill of a demand made by Foss upon the Gas Company. One is a demand for an accounting, and the other concerns a demand for the examination of the books, records, etc., of the Gas Company. These averments are, first, “that before the commencement of this suit he demanded of the said defendant that it account with your orator”, etc.; second, “and also before the commencement of this suit demanded of the defendant opportunity to examine the books”, etc. These averments as to time are remarkably indefinite, not to say wholly unsatisfactory. Here was a lapse of forty-eight years between the time the claimed rights of Foss became vested, according to his contention, and his appeal to the law to enforce them. Did Foss rest as long before he demanded his rights of the Gas Company as. he did in his appeal to the courts in an attempt to enforce them? In other words, when did he, during the running of these forty-eight years, make these demands upon the Gas Company? Of this the pleading of Foss affords no enlightening information. If any inference is permissible, about which we express no opinion, a date approximating that on which the bill was filed would do no violence to interpretation of these vague and uncertain averments. A failure to assert rights in varying periods of from three to forty years has in numerous cases in this state, under the doctrine of laches been held to be a complete defense to a suit in equity for relief. We, however, do not find any recorded case where a party applied to our courts for relief after sleeping upon his rights for so inexcusable a length of time as in the case at bar. We think the quotation from note to.par. 965, Pomeroy’s Equity Jurisprudence, third ed., p. 1788, appearing in appellee’s brief, is forcefully applicable to the conditions of this case: “The doctrine concerning acquiescence from conduct and from lapse of time, is applied with special strictness in mercantile contracts, such as dealings with stock, subscriptions for shares and in agreements of a speculative nature”. The mutations of time bring about many changes in physical conditions. It is plain from the statements in Foss’ amended bill that during nearly a half a century of somnolence upon his part, the Gas Company has experienced many changes. Its capital stock has been increased from half a million of dollars to thirty-five millions of dollars. The franchises and rights of eight other gas companies have been taken over, either by way of merger or by acquisition of the right to operate their several plants. No obstacle to the asserting of any of Foss’ claimed rights appears from any averment of his amended bill. No excuse for not sooner asserting his rights and enforcing his claim is disclosed. But Foss proceeds upon the theory that the Gas Company, as to dividends, is a trustee of the stockholder, and that the doctrine of laches is inapplicable because limitation statutes have no application between trustee and cestui que trust, and in support quote from 10 C. Y. C., 506, that “dividends declared upon the capital stock of a corporation and payable on demand are not subject to the running of prescription or limitation until there has been a demand and refusal”. Whatever may be the rule in other jurisdictions, such is not the doctrine in this state. The relationship of the stockholder and the corporation as to dividends declared is not that of trustee and cestui que trust. At the most there is but an implied trust in the corporation as to such dividends. As to implied trusts, the doctrine of laches and the Statutes of Limitations are, in this forum, invokable as a defense. Such in effect is Reynolds v. Summers, 126 Ill. 55, where the court say: “In respect of resulting or implied trusts, laches or the Statute of Limitations may constitute a bar to the action. Such trusts may be barred by the mere lapse of time.” McDonald v. Stow, 109 ibid. 40. The application of the doctrine of laches or the bar of the Statute of Limitations as a defense by a corporation to dividends declared upon its stock, involves the further question of demand. But the law will no more sanction inexcusable delay in making a demand for such dividends than it will tolerate laches in asserting a claim in a forum of competent jurisdiction. Such dividends being payable upon demand, the Statute of Limitations will not commence to run until after a demand is made. But there is of necessity a limitation to the right to make such demand, for, as said in Codman v. Rogers, 27 Mass. 111: “A party must not be permitted to sleep over his rights to the prejudice of the party on whom he makes a claim. * * * A demand must be made within a reasonable time; otherwise the claim is considered stale, and no relief will be granted in a court of equity”. As to what may be considered a reasonable time, the court in case supra say: “What is to be considered a reasonable time for this purpose does not appear to be settled by any precise rule. It would depend on circumstances. If no cause for delay can be shown, it would seem reasonable to require the demand to be made within the time limited by the statute for bringing the action. There is the same reason for hastening the demand that there is for hastening the commencement of the action, and in both eases the same presumptions arise from delay. In the present case the plaintiff, by his own showing, is chargeable with great laches. He has lain by for seventeen years without making any claim. * * * • No sufficient reason is suggested in the bill for this long delay; and to decree an account under such circumstances would be a most dangerous precedent, against public policy and the principles and rules of equity”.' The force of this reasoning is thrice accentuated in its application to the half century of inactivity of Foss in making demand or the asserting by him of any right against the Gas Company during that time. In the absence of any pretense of an excuse for such protracted delay in the assertion of rights which have, during this time, grown from a claimed stock interest of $75,000, to the claim of stock interest now aggregating the enormous sum of $5,250,000, it would certainly be unprecedented to hold that this action can be'maintained. It would seem that if a case can be conceived, of the nature of the one at bar, where the doctrine of laches and the bar of the Statute of Limitations are invokable under the facts appearing upon the face of the bill, that this case is its most extreme example. During this nearly half century of time, many persons, we may assume, actively engaged in the business of the Gas Company and intimately acquainted with its affairs, have passed on to another life—persons who, in all probability, could have satisfactorily explained the whole transactions here involved. The unprecedentedly long delay in the assertion of the rights now claimed can only reasonably be accounted for upon the theory that Foss was waiting for the death of all persons who could shed any explanatory light upon his claim, leaving himself as the last survivor—a witness whose testimony could not be contradicted or refuted. Statutes of Limitation are statutes of repose. It is the policy of the' law that there should be some fixed time within which rights may be asserted and enforced, and after which time they should be forever barred. Winchester v. Wickliffe’s Admr., 38 S. W. R. 866. We think it beyond dispute that laches is plainly apparent upon the face of the bill, and that there is no statement of any facts or circumstance either explaining or excusing such laches; and as in Kerfoot v. Billings, 160 Ill. 563, such laches may be urged as a defense in bar of the action under a general demurrer. The Supreme Court in Wilcoxon v. Wilcoxon, 230 Ill. 93, announces a doctrine which by analogy is pertinent to the pleading here under discussion. The court say: “It is one of the fixed doctrines of courts of equity that nothing can call forth this court into activity but conscience, good faith and reasonable diligence, and the absence of any of these elements is equally fatal to a recovery, whether they appear in a cross-bill or in an original bill. ’ ’ In the Wilcoxon case supra the relief sought was denied on the express ground of laches imputable from the fact of fifteen years’ delay in asserting the claim, without reasonable excuse. The doctrine that a corporation is a trustee for a stockholder as to dividends declared, does not prevail either in England or in Illinois. In re Severn & Wye & Severn Bridge Railway Co., 1 Law Reports, C. D. 559, (1896); Smith v. Cork & Brandon Ry. Co., 5 Eq. Series Irish Reports, 65. In Illinois the trust, if any, is one implied from the relationship of the parties and under decisions already cited both the doctrine of laches and the bar of the Statute of Limitations are invokable as a complete defense, and such defense may be raised by general demurrer wherever such laches or the bar of the statute appears upon the face of the pleading to which such general demurrer is interposed. The decree of the Circuit Court, being without error, is affirmed. Affirmed.