Seely v. Hills

The amended complaint is equally defective, and in the same particulars, as the original complaint, passed upon by this court in the same case. 44 Wis., 484. It fails to state any accounting, or furnish any data for an accounting, and to state any facts by which it is made to appear that the obligors of the bond are in default, and indebted in any certain sum whatever. The complaint appears to be based upon a misconception of the terms of the bond in respect to *483the indebtedness and liabilities of the bank, which the obligors are bound to pay. The condition of the bond is, that they shall pay the past indebtedness and liabilities of the bank out of its assets, placed in their hands for that purpose; and the complaint specifically charges that such past indebtedness amounted to the sum of about $2,400; and yet, strange to say, the complaint also charges that they were bound also to pay the sum of $9,000, which certain persons, who are in the complaint called stockholders, had subscribed to enable the bank to resume business and meet its liabilities.

It is perfectly evident that the reimbursement of this $9,000 forms no part of the obligation of the obligors of the bond, and that such stock subscription constituted no part of the past indebtedness and liabilities of the bank which they had assumed. It is rather a part of the assets in their hands, out of which they were to pay the past indebtedness. The complaint also charges, but rather inferentially than directly, that at the end of eighteen months after giving the bond the obligors were liable to pay the sum of $4,050, and that they paid no part of it. This is either other indebtedness than that stated in the bond, or a most unaccountable increase of the $2,400 stated in the bond as about the true amount when it was given.

The general default complained of is the non-payment of any part of this $4,050, and of the $9,000 stock subscription; and no default is specifically charged against the obligors for the non-payment of the $2,400 which they alone assumed to pay by the terms of the bond. "What was the character of this past indebtedness which the obligors really assumed .to pay? What were the several amounts .constituting it, and who were the several creditors of the bank to whom it was due and payable? What was the nominal value of the assets, aud what was realized out of them to be applied to their payment? In what respect and particulars, and how, are these obligors in default, and in what specific sum ? These are the material and *484important questions in this case, and they are all unanswered by the complaint. Does the plaintiff know these facts or have information of them? If not, he has no right to complain, and shows no ground of action. A complaint for Specific relief, or for discovery, must state some facts which show the default and liability of the defendant; and this complaint states no such facts.

The complaint is equally groundless in respect to the right of this plaintiff to complain at all, or bring this suit. So far as we know from the complaint, he is a mere stranger and intruder. The bond is given to one John N. Ackerman, president of the "Waupuii Rank, and his successors in office, as the trustee whose duty it becomes to collect the moneys thereby secured, and out of them to pay whatever may remain unpaid by the obligors, of the past indebtedness of the bank. The plaintiff is not a creditor of the bank, complaining that he has not been paid, or a stockholder, or officer of the bank, or successor of Ackerman as president. -He is a mere assignee of the bond by the act of Ackerman alone, and there is no power of appointment in the bond which creates the trust. It is not claimed in the complaint, or on the argument of the demurrer, that Ackerman could in this way divest himself of tills express trust by an assignment to a stranger, without the consent of all the parties to the trust interested in it. The creditors of the bank are primarily and directly the cestui-que-trusfs and beneficiaries of the fund, and the bank remotely and conditionally so,' and the stockholders only so in severalty and contingently, if they have any contingent liability at all, which is not shown by the complaint. The complaint shows the consent of only the stockholders, and they are not the creditors of the bank interested in this fund,' as we have already shown.

It seems that the bank was very much embarrassed when the bond was given, and in 1861 it made an assignment to one R. 0. Dodge for the benefit of its creditors, and all of the assets of the bank were taken possession of by him.- It *485would seem that the bank, as' well as its president, became at that time practically functus officio; and yet it is averred that Ackerman, the president of the bank, assigned this bond to the plaintiff as late as the year 1868. Ry what right? This bond, for the benefit of the creditors of the bank, might or might not (and this question we do not decide) go to the assignee, Dodge, as a part of the securities of the outstanding indebtedness of the bank: but it is quite clear that the stockholders ceased to have any further even contingent interest in it, and Ackerman, as president of the bank, ceased to have any right of disposition of the bond other than its collection. The law, however, is very clear, that “ the office and duties of a trustee, being matters of confidence, cannot be delegated by him to another, unless an express authority for that purpose be conferred on him by the instrument creating the trust.” Hill on Trustees, § 175; Perry on Trusts, §§ 287, 294.

This principle is elementary, and has only one exception, and that is when the trustee delegates the trust to another with the consent of the cestui-que-trust and all other parties interested in the trust; and, this needs no citation of authority, for the respondent’s learned counsel admits it by the assertion of such consent, treating the stockholders of this defunct bank as the only cestui-que-trusts and only parties interested. The circuit court should have sustained the demurrer.

By the Court. —■ The order of the circuit court is reversed, with costs, and the cause remanded for further proceedings according to law.