106 F. 791 | 9th Cir. | 1901
(after stating the facts). It appears that this suit was commenced more than two and less than three years after the date when the assessment levied by the comptroller became due. The insolvent corporation and the defendant being citizens of the slate of Washington, the laws of that state as to limitation of actions apply. The plaintiff in error contends that the case is governed by subdivision 3 of section 4,800 of Ballinger’s Annotated Codes and Statutes of Washington, which provides 1.1mt “an action upon a contract or liability, express or ini])!led. which is not in writing, and does not arise out of any written instrument,” may be commenced within three years after the cause of ad ion shall have accrued. The court below ruled ¡hat the liability sued upon, namely, that of a stockholder in a national bank, was not contractual, but statutory only, and therefore the suit did not come within the pro visions-of section 4800, but was governed by se.eiion 4805 of the same Code, providing that “an action
“The legislature created the corporation and prescribed certain 'terms to which the stockholders should be subjected. This was an offer on the part of the state. It could be accepted or declined. There was no. constraint. By-taking the stock, the terms were acceded to, the contract became complete, and the stockholders were bound accordingly. The same result followed which would have ensued under the like circumstances between individuals. The assent thus given and the promise implied are of the essence of the liability sought to be enforced in this proceeding. If a remedy at law were necessary, clearly it must have been in case.”
In Metropolitan R. Co. v. District of Columbia, 132 U. S. 1, 13, 10 Sup. Ct. 19, 33 L. Ed. 231, tbe action was brought by the District of Columbia, a municipal corporation, to recover from a street-railroad company the cost of maintaining pavements in a street, which the company was, by its charter,” bound to maintain. The charter was granted by an act of congress. One of the defenses interposed to the action was the statute of limitations. This defense was over
Tn Richmond v. Irons, 121 U. S. 27, 55, 7 Sup. Ct. 788, 30 L. Ed. 864, the question was whether the personal liability of a stockholder in a national hank for the debts of Lhe corporation survived against his personal representatives. The court, in distinguishing the provisions of the national banking act from the language of the statutes of Massachusetts, points out that under the former the liability of a stockholder in the bank arises upon a contract. The court says:
“Under that act [the national hanking act] the individual liability, of the stockholders is an essential element in the contract by which the stockholders became members of the corporation. It is voluntarily entered into by subscribing for and accepting shares of stock. Its obligation becomes a part of every contract, debt, and engagement of the bank itself, as much so as if they were made directly by the stockholder instead of by the corporation. There is nothing' in the statute to indicate that the obligation arising upon these undertakings and promises should not have the same force and effect, and be as binding in all respects, as any other contracts of the individual stockholder."
And in the case of Bank v. Hawkins, 174 U. S. 364, 372, 19 Sup. Ct. 789, 742, 48 L. Ed. 1007, 1011, in speaking of the contention that the liability of the stockholder in a national bank to respond to an assessment in case of insolvency is not contractual, but statutory, the court said:
“Undoubtedly, the obligation is declared by the statute to attach to the ownership of' the stock, and in that sense may be said to be statutory; but, as the ownership of the stock in most cases arises from the voluntary act of the stockholder, he must be regarded as having agreed or contracted to he subject to the obligation.”
In the case of Howarth v. Lombard (Mass.) 56 N. E. 888, the supreme court of Massachusetts declares this doctrine to be correct, holding that there is a contractual element entering into the liability of a bank stockholder, although the liability is founded on a statute. “The undertaking,” the court says, “is as if one subscribing for stock expressly agreed to take and hold it under a previously prepared con