31 A.2d 547 | Pa. | 1943
This appeal is concerned with the proper application of the statute of limitations to a proceeding by the Secretary of Banking, as receiver of an insolvent bank, to recover an assessment against the stockholders for unpaid stock subscriptions.
The Secretary took possession of Title Trust Company of Western Pennsylvania, Connellsville, Pa., on July 1, 1930. The par value of the stock of this company, which was incorporated under the Act of April 29, 1874, P. L. 73, was $100 per share, of which only $50 a share had been called and paid in. As it appeared that its assets would be insufficient to pay the depositors and other creditors in full and that the entire amount remaining unpaid on the stock would be required for that *668
purpose, the Secretary, on June 15, 1936, made a call for payment of the balance of $50 per share. He notified the stockholders on June 20, 1936, to pay this amount "at once", and on June 29, 1936, began suits against those stockholders who had defaulted. It was held by this Court, however, (Harr, Secretary of Banking, v. Mikalarias,
While the present proceedings are in equity, the liability of the stockholders arises out of contract and under such circumstances it is especially appropriate to apply the principle that, on the question of lapse of time, a court of equity, although not bound by the statute of limitations, will frequently adopt and apply it to corresponding rights and remedies by way of analogy to actions at law: Todd's Appeal,
It is well settled that where an assessment is made by the receiver in order to enforce the additional statutory liability
of stockholders, the statute runs only from the time when it is determined to what extent such liability will have to be enforced and an assessment or demand is actually made. This was the law both before the Banking Acts of 1919, P. L. 209; 1923, P. L. 809; and 1933, P. L. 565 (Kirschler v. Wainwright,
But the question here presented is not as simple as thus indicated, because, while the statute ordinarily runs from the making of a demand where such demand is necessary to furnish a cause of action, there is a further rule which prescribes that where the time of demand is within the control of the plaintiff the demand must be made within a reasonable time.2 The statute cannot be extended by the plaintiff's act or failure to act; he cannot arrest the running of the statute by his own negligence or for his own convenience. This principle has been established in Pennsylvania by a great current of authorities which have applied it under various circumstances.3
Our inquiry, then, must be: What constitutes a reasonable time in which the Secretary of Banking, as receiver of an insolvent bank, should be able to ascertain that an assessment will be required for the balance, or *671
some specific part of the balance, of the stock subscriptions? Obviously the answer depends upon the circumstances of the particular case. If there are no unusual or complicated conditions, and it is clear from the beginning that the bank is so hopelessly insolvent that a call upon the stockholders for the full balance of their unpaid stock subscriptions will be inevitable, there would be no justification for any prolonged delay on the part of the Secretary in making the assessment. If, on the other hand, the assets or the liabilities are of a more or less contingent nature, and only the gradual processes of liquidation can determine whether there will be a likely necessity for such a call, and if so, whether for all or only part of the unpaid balance of the subscriptions, the reasonable time for ascertainment of the controlling facts must naturally be correspondingly extended. A large measure of administrative discretion must be left to the receiver himself, it being important that unnecessary and excessive calls be avoided (seeFisher v. Whiton,
No conclusion can be reached in this case without more knowledge of the facts. While the original appraisement showed a considerable excess of liabilities over the estimated value of the assets, and this might have enabled the Secretary to determine promptly that a call for the unpaid stock subscriptions was unavoidable, much would necessarily depend upon the nature and marketability of the assets — something not disclosed in the record. Moreover, the Secretary, in his petition for a rehearing, asserted that his delay in making demand was due largely to the necessity of waiting until the litigation in Harr v. Mikalarias,
The decree is reversed with a procedendo. Costs to abide the event.
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