49 Neb. 412 | Neb. | 1896
This was an action in the district court for Johnson county against the Tecumseh National Bank to recover the amount of a certificate of deposit for $300 issued by the firm of Russell & Holmes, doing business as bankers in said county. The allegations of the petition below are that the plaintiff therein, who is also plaintiff in error, on the 7th day of November, 1888, deposited with the said firm the sum of $300 and received the certificate of deposit above described; that on the 1st day of June, 1889, the firm of Russell & Holmes went into liquidation and closed its business, and thereafter the Bank of Russell & Holmes, a corporation, organized pursuant to the laws of this state, engaged in the business of banking as the successor of said firm; that the corporation aforesaid was a mere continuation of the firm of Russell & Holmes, and
The judgment of the district court appears to rest upon the conclusion that the plaintiff has failed to state a cause of action against this defendant, and our investigation of the subject has led to the same result. It will be observed from a careful reading of the petition that it is not charged that the Bank of Russell & Holmes became a national bank; that said corporation was reorganized under the National Banking Act or otherwise; that its liabilities, or any part thereof, were in fact assumed by the defendant herein, or that the latter did not in good faith, in the usual course of business, purchase and pay for the rights and property therein described. If, therefore, there exists a liability on the part of the defendant for the demand alleged as the cause of action, it is by reason of the fact that it has, by some means not disclosed, acquired the assets, business, and good-will of the Bank of Russell & Holmes, and the further fact that its business was at one time conducted and carried’ on in the room previously occupied by that corporation, and by men who had been officers and stockholders thereof. True, it is alleged that all the owners and officers of the Bank of Russell & Holmes became stockholders and officers of the defendant upon its creation, but it does not appear that such owners and officers were the holders of the whole, or even a majority of the stock of the last named corporation. For aught appearing to the contrary, the relation of the defendant to the Bank of Russell & Holmes is the not unusual one resulting from the purchase by one state or national banking corporation of the business and assets of another, in consideration whereof
. Our attention has been directed to the provision of the national- banking law (Revised Statutes, U. S., sec. 5154) for the reorganization thereunder of banks established pursuant to general law of any state. That provision, it has been said, contemplates a mere transition from one jurisdiction to another by the corporations to which it applies, without abandoning their existence as such, without any change of organization, officers, stockholders, or property, and without interruption of their pending ■business or contract. (Scofield v. State Nat. Bank of Lincoln,. 9 Neb., 316; Coffey v. National Bank of Missouri, 46 Mo., 140; City Nat. Bank of Poughkeepsie v. Phelps, 97 N. Y., 44.) It may, as the result of the foregoing and other decisions of like import, be assumed that a liability would in this instance have been implied from an allegation that the Bank of Russell & Holmes was reorganized pursuant to the statute above cited; but the bank above named, as charged in the petition, went into liquidation, closed its business, and ceased its organization as such on or about the 13th day of April, 1890, and the defendant was thereafter, on or about the 14th day of April, 1890, organized- and ci’eated a banking corporation. Judge Story, in Fleckner v. Bank of the United States, 8 Wheat. [U. S.], 338, referring to the contention that the word “liquidate” meant, not a payment, but an ascertainment .of a debt, said: “We think otherwise. Its ordinary sense, as given by lexicographers, is to clear away, — to lessen debts. And in common parlance, especially among merchants, to liquidate a balance means to pay it,” and which view accords with the more recent definitions of the term. (Vide 13 Am. & Eng. Ency. of Law, 825.) The Bank of Russell & Holmes accordingly, instead of reorganizing as a national bank, proceeded, upon the closing of its busi
We have not overlooked the class of cases, including Reed v. First Nat. Bank of Weeping Water, 46 Neb., 168, holding newly organized corporations liable at common law for the debts of established corporations or firms to whose business, property, and franchises they have succeeded. There are to be found in the reports and textbooks expressions apparently sustaining the proposition that a corporation which, upon its organization, succeeds to the business and property of another corporation or firm, is, from that fact alone, chargeable with the indebtedness of the latter. It is, for instance, said by Mr. Beach, in his excellent work on the Law of Private Corporations, sec. 360: “Where an old-established corporation sells out to a newly organized one and turns over all of its property, the new company becomes liable upon the debts and contracts of the old.” The strict accuracy of that statement may, we think, be doubted, in view of the omission therefrom of any reference to the purpose or character of the transaction contemplated or the consideration therefor. We shall not attempt a review of the cases cited in the note accompanying the foregoing text, or in the briefs submitted herewith. It is sufficient that they may, in our judgment, be thus classified: (1.) Cases in which the liability of the new corporation results, not from the operation of law, but from its contract relation with the old. (2.) Cases like Hibernia Ins. Co. v. St. Louis & New Orleans Transportation Co., 13 Fed. Rep., 516, in which the transfer of the property and franchise amount to a fraud upon the creditors of the old corporation. (3.) Cases where, as in Reed v. First Nat. Bank of Weeping Water, supra, the circumstances attending the creation of the new corporation and its succession to the business, franchise, and property of the old are such as to raise
Affirmed.