Whitefoot v. National Fraternity Building & Loan Ass'n , 18 Mont. 164 ( 1896 )

De Witt, J.

The plaintiff .claims upon argument that, the defendant being a corporation, organized under chapter 33, Fifth Division of the Compiled Statutes of 1887, providing for the organization of building and loan associations, and that he, plaintiff, being a stockholder in the same, and having paid subscriptions as alleged in his complaint, is entitled to demand the moneys so paid to be returned to him under the provision of section 648, which is one of the sections of said chapter 33. The provision of that section which is material to this inquiry is as follows :

‘ ‘ That any stockholder desiring to withdraw from said corporation, shall have power to do so by giving sixty days’ written prior notice thereof, and at the expiration of sixty days from date of service of such notice, such stockholder shall be entitled to receive the amount paid in by him, and interest thereon at such rate per annum or such proportion of the profits thereon as the by-laws may determine, less any initiation fee, and all fines and other charges assessed against such stock pursuant to the provisions of the by-laws. ’ ’

The law as to building and loan corporations has this provision just quoted, which is unusual, and not found in laws as to corporations generally. The plaintiff, having paid in his subscription, if he is to recover them back in an action, must state the facts entitling him to demand such recovery. In this respect the complaint is fatally defective. There is no allegation whatever that the defendant was organized under the special corporation statute, to wit, Chapter 33. In corporations other than building and loan associations, the subscriber could not so demand the return of his subscription. The complaint should have alleged that the defendant was organized under the provisions of this Chapter 33. The plaintiff is seeking to recover under a specific statutory provision made in his favor, and he does not pretend to bring himself within that provision. In the case of Wethey v. Kemper, 17 Mont. 491, the action was against the trustees of a corporation, seeking to hold them liable for corporate debts, by reason of a failure to file, in the office of the clerk of the county where the business is carried on, a report stating certain matters required by the statute. We there held that the complaint was bad because it failed to state in what county the business of the corporation was being conducted. We said in the case: “In order to recover of the defendant as trustee, it was certainly necessary that the plaintiff should prove that no report was filed by the corporation, or any person whose duty it was to file the same under the statute, with the clerk and recorder of the county in which said corporation-carried on its business. If it was necessary to prove this, it was necessary to allege the failure to file the report with the clerk and recorder of the county in which the business was carried on. We think that the complaint, under the authorities, is fatally defective. ” We think it is equally necessary in this case to plead that the defendant was the sort of corporation from which the plaintiff would be entitled to demand back the subscriptions which he paid in.

The complaint does not state the rate of interest or such proportion of the profits which the by-laws of the corporation had determined. Therefore the allegation in the complaint demanding 8 per cent." interest would not be sufficient to entitle the plaintiff to recover any interest. But, notwithstanding this defect, the complaint would be good on general demurrer if it showed that plaintiff was entitled to recover his subscriptions without interest. The demurrer should have been sustained upon the grounds first above mentioned, and for that reason the judgment will be reversed, and the case remanded, with instructions to sustain the demurer.

Reversed.

PembebtoN, C. J., and HUNT, J., concur.