Finn v. Brown

This is an action at law, brought in the circuit court of the United States for the district of Colorado, by the receiver of the First National Bank of Leadville, Colo., against Nicholas Finn, to recover $8,750, with interest upon $7,000 thereof from September 28, 1885, and upon $1,750 thereof from January 2, 1884. The bank was a national banking corporation; and, it becoming insolvent, the comptroller of the currency, on the 24th of January, 1884, appointed one Ellsworth receiver of the bank, who afterwards resigned, and the plaintiff became his successor. The amended complaint alleges that the defendant, on the 29th of October, 1883, became the holder of 50 shares of the capital stock of the bank, and on the 12th of December, 1883, the holder of 20 others of such shares, the shares being of the par value of $100 each; that certificates of stock were duly issued to the defendant for such shares, respectively; that on the 28th of September, 1885, the comptroller of the currency, under section 5151 of the Revised Statutes, determined that, in order to provide the money necessary to pay the debts of the bank, it was necessary to enforce the individual liability of its shareholders to the full extent of 100 per centum of the par value of the shares of its capital stock, and thereupon, on that day, made an assessment to that effect, and directed the plaintiff to take the necessary proceedings to enforce such individual liability; that thereupon there became due from the defendant$7,000; that due notice was thereupon served upon him, but that he had paid no part of the assessment, The amended complaint then sets forth, as a second cause of action, that on the 2d of January, 1884, and for a long time prior thereto, the defendant was a shareholderholder and director, and acting cashier, of the bank; that on that date, and for a long time prior thereto, the bank was insolvent; that on that date, by its board of directors, it fraudulently and wrongfully declared a dividend of 25 per cent. on its capital stock to be paid to its shareholders; that the defendant, as such director, was present at the meeting of the board at which such dividend was declared, and united in such action, with full knowledge of such insolvency; that on that date the defendant received from the bank $1,750, as his proportion, on said 70 shares, of said dividend, and retained, and still retains, that sum, with full knowledge that at that date there were then no net profits of the bank, and that the dividend was wrongfully withdrawn from its capital stock; and that repayment of the $1,750 had been demanded of the defendant, and refused. The answer denies that the defendant ever became the holder of the 50 shares of stock, or that there was issued to him a certificate for 50 shares, but admits that on the 12th of December, 1883, he became the holder of 20 shares, and that there was issued to him a certificate therefor. It admits the defendant's liability for $2,000 on the 20 shares of stock, and alleges that, after the commencement of the suit, he paid to the plaintiff the $2,000. It denies that, at the time stated in the second cause of action set forth in the amended complaint, as to the $1,750, the defendant was a director of the bank, or that he ever was its acting cashier. It takes issue as to the declaring of the 25 per cent. dividend, and denies that the defendant, as a director of the bank or otherwise, was present at the meeting of the board at which it was declared, or that he united in such alleged action with any knowledge of the insolvency of the bank or otherwise, and denies that he received the $1,750 as his proportion of such dividend, but admits that he received $500 as a dividend of 25 per cent. upon the 20 shares. The cause was tried before the court and a jury, and a verdict was rendered for the plaintiff for $7,833.33, and a judgment for the plaintiff for that amount was entered. The defendant has sued out a writ of error to review that judgment. There is a bill of exceptions which contains all the evidence given on the trial. The facts of the case appear to be as follows:

The doors of the bank were closed on the 22d of January, 1884. Immediately thereafter, Ellsworth was appointed receiver, and continued to be such until February 1, 1884, when, on his resignation, the plaintiff was appointed in his place. According to the stubs of the book of certificates, and as shown by the stock register, 50 shares of the stock were transferred to the defendant, by issuing a certificate for 50 shares, dated October 29, 1883, 40 shares of which were issued to the defendant from the stock of one McNany, and 10 shares from the stock of Frank W. De Walt, the president of the bank. Those 50 shares constituted the only stock which stood in the name of the defendant until December 12, 1883. On the 30th of October, 1883, at a directors' meeting, the defendant was appointed a director; and on the same day, at a directors' meeting, he was appointed vice-president of the bank. On the 21st of November, 1883, at a directors' meeting, at which the defendant was present and voting, the resignation of P. J. Sours, the cashier, was accepted, and the defendant, as vice-president, was authorized to act as cashier until a new cashier should be regularly appointed. On the same day the defendant and De Walt, the president, were authorized to pass judgment on all notes, etc., offered for discount. The defendant discharged the duties of vice-president from the 21st of November, 1883, until the bank failed. It appeared from the book of share certificates that the defendant, at the time of the failure of the bank, was the owner of 70 shares of its stock. It also appeared that, since this suit was brought, he had paid the $2,000 assessment on the 20 shares. It further appeared that the defendant, as vice-president, wrote a number of letters to correspondents of the bank, notifying them of the resignation of Sours as cashier, and inclosing the defendant's signature, which was to be recognized on bills of exchange, etc., subsequent to that time; and that he signed, as vice-president, between November 21 and December 12, 1883, and also between December 12, 1883, and January 22, 1884, a large number of certificates of deposit and bills of exchange issued by the bank. No regular stock-book was kept in the bank, but a list of stockholders and transfers of stock appeared in one of its books, in which was entered a credit to the defendant of 50 shares of stock on October 29, 1883, and of 20 shares more, purchased by him from Sours, on December 12, 1883. It appeared that no demand had been made upon De Walt or McNany to pay the assessment on the 50 shares. The defendant claimed that the 50 shares were transferred to him without his knowledge or consent; that no transfer appeared upon the books, to the credit of either De Walt or McNany from the defendant, of any sum of money for the 50 shares; and that the certificate for the 50 shares was not among the papers of the bank, so far as the receiver could ascertain. The defendant, on cross-examination as a witness, gave evidence tending to show that, in connection with De Walt, he had fulfilled the duties of cashier of the bank from the time of his election as vice-president. The books of the bank showed that it was insolvent on January 2, 1884. Sours owned 20 shares of the stock on the 29th of October, 1883. On that day he tendered his resignation to the president, and on the same day the president instructed him to issue a certificate of stock for 50 shares in the name of the defendant, transferring 40 shares thereof from the stock of McNany, and 10 shares from the stock of De Walt. Sours wrote the certificate, signed it as cashier, and left it in the book of certificates, but did not deliver it to the defendant. On the 21st of November, 1883, Sours attended a meeting of the directors, at which time his resignation as cashier was accepted; and at that meeting the defendant was elected a director, and on the same day, at a meeting attended by the defendant, the latter was elected vicepresident. On December 12, 1883, the defendant paid Sours $2,400 for his 20 shares, and Sours handed to him the certificate therefor, duly assigned. It was customary for Sours, as cashier, to sign new certificates of stock as issued. He resigned because he was not satisfied with the manner in which the bank was conducted, and had his fears of coming disasters. He knew that no cashier had been elected to take his place, and that the duties of that office had been performed by the defendant; and Sours ceased his active connection with the bank after the defendant had been elected vice-president, and before he disposed of his stock to the defendant.

The defendant testified that he knew nothing of the transfer of the 50 shares of stock to his name, and was absent from Leadville at the time; that, after he returned, he was urged by De Walt to invest in the stock of the bank, and become one of its active officers, which he consented to do; that on the 21st of November, 1883, he was elected a director, he being present at the meeting; that, at the same meeting, he was elected vice-president, and entered at once upon the discharge of his duties; that he was then urged to obtain some stock in the bank, and was informed by the president that 20 shares of the stock could be secured from Sours for a premium of $20 per share, and was advised by the president to take it, the latter representing the bank to be in a prosperous condition; that the defendant then purchased the 20 shares from Sours, and had them transferred to his name on the books, and took a certificate therefor; that, from the time of his election as vice-president, he performed some of the business of the bank, had his head-quarters in the bank, wrote some letters, and signed some certificates of deposit and bills of exchange, the business being of a routine character, and he having little knowledge of the books and no knowledge of the condition of the bank, and relying almost entirely upon the representations and management of the president; and that he never had a certificate for the 50 shares or any other shares, except the 20 shares.

On the 2d of January, 1884, a dividend of 25 per cent. on the capital stock of the bank was declared, and the sum of $1,750 was transferred to the credit of the defendant, as his share of such dividend on 70 shares of stock. At that time the bank was wholly insolvent, and the declaration of the dividend was fraudulent. According to the record of the directors' meeting at which the dividend was declared, the defendant was present, and seconded the motion to declare the dividend. The entry in the book of records of the bank of the declaration of the dividend was thought to be in the hand writing of a female relative of the president. The defendant testified that on the 2d of January, 1884, he was informed by De Walt, the president, that a dividend of 25 per cent. had been declared, and, by some one else, that the sum of $1,750 on account of such dividend had been transferred to his credit by order of De Walt; that, being the owner of only 20 shares, he at once inquired of De Walt about it, when, for the first time, he was informed that the 50 shares had been transferred to his credit, and stood in his name on the books of the bank, in consequence of which $1,250 had been transferred to his credit as soon as the dividend was declared; that he inquired of De Walt why the 50 shares were in his name, and was informed that they had been so transferred merely because De Walt thought the defendant might desire to purchase them as a good investment; that the defendant at once repudiated the transaction, and refused to purchase the stock, or have anything to do with it, and ordered De Walt to retransfer the same back to his own name without delay; that the defendant immediately sat down and drew his check for $1,250 to the order of De Walt individually, and handed it to the latter; that the check was duly charged on the books of the bank to the defendant, and credited to the account of De Walt; that almost immediately thereafter the defendant was summoned on a jury, and was kept in attendance thereon almost constantly until the 21st of January, 1884, the day but one before the suspension of the bank; that during a part of such jury service he was confined with the other jurors, and not permitted to separate from them; that, the next day after the agreement of the jury, he was engaged in looking after the affairs of the bank, and did not think of the stock, or whether it had been transferred by De Walt; and that the bank almost immediately suspended.

The defendant also gave evidence tending to show that he never attended a meeting of the directors for the purpose of declaring the dividend of January 2d, and knew nothing about the fact that the books contained such an entry, and that he had no knowledge of the declaration of the dividend, beyond the statement of De Walt to that effect. He recognized the handwriting of the entry of the meeting at which the dividend was declared as being that of a lady cousin of De Walt, and testified that, according to the best of his information, the entry was written at the house of De Walt, and not at the bank; that he never examined the book of certificates of shares, or any other entry or any other book, with reference to the shares; that he had no knowledge of the insolvent condition of the bank, and was assured by De Walt that the bank was doing a large business, and making money, and that the shares were a profitable investment; that, to the best of his recoilection, he had not sworn that the bank was in good condition on January 1st, but, as one of the directors, he attested a sworn statement of its condition, which was verified by the president; that, at the time the dividend was declared, he was of the belief that the president had the right to set apart from the profits of the bank such an amount as would represent the dividend which might be declared; that he paid no further attention to it after that; and that he was not a ware that the bank was then insolvent and not in a condition to pay its debts, nor aware, at the time of the suspension of the bank, that there was less than $100 in currency on hand.

At the close of the evidence, the court refused to submit the cause to the jury, to which refusal the defendant excepted. The court then instructed the jury that under the evidence of the defendant himself, as well as under the testimony for him, he was estopped from denying his ownership of the 50 shares, and that, inasmuch as he had not repaid the $1,250 of dividend to the bank, but had paid it to De Walt, he had not refunded that amount in the manner in which he should have done. The court thereupon instructed the jury to find a verdict for $5,000, the par value of 50 shares at $100 per share, and interest on such par value at the rate of 10 per cent. per annum from the date of the demand for payment by the plaintiff, together with $1,750 dividend on the 70 shares of stock. The defendant excepted to that instruction. The defendant then asked the court to give seven several instructions, which were refused, and to each refusal the defendant excepted.

The defendant then moved for a new trial, which was denied by the court, in an opinion reported in 34 Fed. Rep. 124. The ground of the denial of the motion for a new trial was stated by the court in its opinion to be that the defendant was chargeable with notice of the transfer of the 50 shares to him, he having acted as vice-president and cashier during the time when those shares were transferred to him; that any investigation of the books of the bank would have led to the discovery that he was a stockholder to the extent of the 50 shares in question; that, when he was informed of the dividend of January 2d, all he did was to pay the $1,250 to De Walt, who, he supposed, was the owner of the shares; and that he did not return the money to the bank.

T. M. Patterson and C. S. Thomas, for plaintiff in error.

[Argument of Counsel from pages 64-67 intentionally omitted]

E. O. Wolcott and J. B. Henderson, for defendant in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.