179 Ind. 621 | Ind. | 1913
This was a suit by appellee against appellant in the Vanderburgh Circuit Court, on a complaint for mandate, in one paragraph, which complaint, omitting the formal parts is as follows: “Plaintiff complains of the defendant and says that the defendant is now and has been for-years last past, a corporation duly organized under the laws of the United States as a National Bank; that said defendant during all of said time has been engaged in the banking business as a National Bank in the city of Evansville, Indiana. This relatrix avers that on the 3rd day of October, 1905, she became the owner of seventy (70) shares of the par value of one hundred dollars per share of the capital stock of said bank; that said shares and the certificate representing the same were duly issued to this relatrix on the 3rd day of October, 1905, and the rel'atrix is and was on the 3rd day of October, 1905, the owner of the same in her own right, and is in possession of said certificate. That on the-day of January, 1910, as the relatrix was informed the capital stock of the defendant bank had become impaired, and the relatrix was, on the 21st day of January, 1910, notified by the directors of the defendant bank that the capital stock had been impaired and that it was necessary that the deficiency be made up by an assessment on the shareholders pro rata to the amount of the capital stock of each shareholder; that the proportion of said assessment made against the relatrix, on account of her stock amounted to seven thousand dollars; that a meeting of the shareholders of the defendant bank would be held on the 21st day of February, 1910, at the said defendant Citizens National Bank, for the purpose of considering and voting on the question of paying the assessment, within
To this complaint appellant demurred for want of sufficient facts to constitute a cause of action. This demurrer was overruled by the court, to which ruling appellant excepted. Appellant then answered said complaint in three paragraphs. The first was a general denial. The second paragraph of answer, omitting the formal parts is in the words and figures following, to-wit: “The defendant for a further and second paragraph of answer to plaintiff’s complaint says that prior to the 21st day of February,
Appellant further avers in its second paragraph of answer that the appellee or relatrix sold and transferred to Hilary E. Bacon and Charles 'W. Cook, on January —, 1910, the said seventy shares of stock mentioned in plaintiff’s complaint, and that said Bacon and Cook, in their individual capacity, purchased the same from said relatrix; the said Bacon and said Cook afterwards, to wit: on January —, presented to the defendant bank the seventy shares of stock to be transferred on the books of said bank, and said last mentioned time the said stock was transferred to said Bacon and the said Cook by the defendant bank and since the last named day the said bank has-recognized the said Bacon and the said Cook and their assigns as the owners of the said seventy shares of stock mentioned in plaintiff’s complaint. And that since January —, 1910, when said stock was sold and transferred to the said Bacon and the said Cook, the said relatrix has not owned, nor is she now the owner of any of the shares of the capital stock in the defendant bank. The third paragraph of answer is similar to the second, except that in alleging the sale of the stock they aver that at the time hereinafter mentioned and prior thereto one Okley H. Kellogg is, and was the duly authorized and acting agent and attorney of the said relatrix and was empowered and authorized by said relatrix to sell and transfer for her, and in her name, the said stock, owned and held by said relatrix as aforesaid. That on or about January —, 1910, the said relatrix, acting by and through her agent and attorney for a consideration of the payment of the assessment, then standing against said stock, and the further consideration of $1, which was at the time paid to the duly authorized agent and attorney of said relatrix and received by said agent and attorney of said relatrix, the said relatrix sold
Appellee filed two paragraphs of reply, verified, in the first of which the relatrix denied having sold the shares of stock in the bank to any person and in the second paragraph the relatrix denied that Okley H. Kellogg was authorized by the relatrix to sell or transfer her shares of stock in the bank. The relatrix also filed a reply in general denial to the second and third paragraphs of answer.
The court having been requested by the plaintiff to make special findings of facts in this ease, and conclusions of law thereon, found the facts to be as averred in the plaintiff’s complaint, finding: (1) That the defendant, The Citizens National Bank of Evansville, Indiana, is now and has been for more' than ten years last past a corporation duly organized under the laws of the United States a national bank, during all of said time engaged in the banking business as a national bank of Evansville, Indiana. (2) That the relatrix Susan H. Kellogg, on October 3, 1905, became the owner of said seventy shares at the par value of $100 each of the capital stock of the defendant, and upon said date there was issued to said relatrix by the defendant, a certificate presenting said seventy shares of stock, which is in the words and figures following:
“457— This certifies that 70 Shares. Susan H. Kellogg, is the owner of seventy shares of one hundred dollars each of the capital stock of the Citizens National Bank, Evansville, Indiana, transferable only on the books of the bank in person, or by attorney and on the surrender of this certificate. In witness whereof, the*628 seal of the bank and the signatures of the President and Cashier are hereunto affixed. Evansville Indiana, October 3rd 1905. The Citizens National Bank. S. P. Gillett. President. W. P. Swomstedt. Cashier. (Seal)”
We have set out this certificate of shares, for the reason that it indicates in what manner the same may be transferred, and will become important in the decision of this case. The court further found that this certificate of stock so issued by the defendant to the relatrix, was delivered to the said relatrix by the defendant bank, and that the relatrix has been the owner of said stock in her own right, and that the said relatrix has had continued, exclusive possession of said certificate of stock since the date of issuance thereof. The court in subsequent findings found that the stock of the defendant bank had become impaired and that the directors of said bank on January 21,1910, notified the relatrix and other shareholders of said bank, of the impairment of the capital stock of said bank, and that the assessment on her said seventy shares of stock amounted to $7,000, and unless the deficiency of the capital stock of said bank was made good by assessment on the said stockholders of said bank pro rata to the amount of capital stock held by each, the bank would be placed in liquidation; and called a meeting of the shareholders of said bank to be held on February 21, 1910. That this notice was delivered to the relatrix and on February 10, 1910, the relatrix notified the defendant that she would pay her assessment of $7,000 on her seventy shares of stock held by her and that thereafter, to wit: on February 24, 1910, she tendered to the defendant $7,000 in payment of her assessment on her seventy shares of stock, which payment was by the defendant refused.
The court further found that the relatrix tendered to the defendant, The Citizens National Bank $7,000 in gold coin in payment of said assessment upon her said seventy shares of stock; that the defendant refused to receive payment
Upon the foregoing facts the court stated the following conclusions of law: (1) The relatrix, Susan H. Kellogg is the owner of seventy shares of the par value of $100 each of the capital stock of the defendant, The Citizens National Bank of Evansville, Indiana. (2) The relatrix is entitled to judgment and writ of mandate of this court commanding the defendant, The Citizens National Bank of Evansville, Indiana, to recognize the relatrix as the owner of seventy shares of stock in said defendant bank and to grant her the privileges and rights due her as a stockholder, upon the payment by her to the said defendant of $7,000 upon the assessment made by the defendant bank upon said stock. That judgment and decree should be entered in accordance with the foregoing conclusions of law.
Appellant thereupon filed a motion for a new trial on the grounds that the special findings are not sustained by sufficient evidence; and that the findings numbered from 1 to 12 are not sustained by sufficient evidence, and that the findings are contrary to the evidence; the special findings numbered from 1 to 12 inclusive are contrary to the evidence and that the special findings of the court are contrary to law. The motion for a new trial was overruled to which ruling appellant excepted.
Appellant then filed its motion in arrest of judgment upon the ground that the complaint does not state facts sufficient to constitute a cause of action; and that the sole defendant, The Citizens National Bank, is without power or authority to issue any stock to the relatrix, in addition to that now outstanding, and that the undisputed evidence shows that all of the authorized capital stock of the bank has been issued and is now owned and held by persons other than the relatrix.
The questions presented by appellant in its brief, we are inclined to believe, are upon the wrong theory of this case. As we understand the petition in this case it is simply that
In the case last cited the Misses Pollock were the acknowledged owners of fifty shares of the National Bank stock, standing in their names, on the books of that institution, with the certificates, the evidence of their title in their possession. This stock was subsequently transferred from their names to the names of other persons by the permission of the
In the case of Pratt v. Taunton Copper Mfg. Co., supra, the facts were as follows: “The plaintiff was the owner of shares in each of the defendant corporations, and held certificates therefor, which were taken from her house without her knowledge, and, together with a forged power of attorney in her name to the corporation, delivered to W. N. Field & Company, brokers, for sale. Field & Company employed Hawes & Henshaw, stock auctioneers, to sell the shares by auction, and they sold them accordingly. Field & Company afterwards presented the certificate and power of attorney, in the one case, to the clerk of the corporation, duly empowered to make transfers, and in the other case to the cashier of the bank, and obtained from each a transfer of the stock and a new certificate, with a new number, in the name of Hawes & Henshaw, and delivered it to them; and Hawes & Henshaw delivered and assigned the new eer
In the California ease of Herbert Kraft Co. Bank v. Bank of Orland, supra, the supreme court of California was called on to pass on the sufficiency of the complaint in that cause. This was a ease involving the transfer by the bank of Orland of certain stock belonging to the plaintiff bank and alleged that a pretended assessment was made against stock of the bank of the plaintiff, held as security by the defendant, Bank of Orland, but that said bank has no authority to levy any assessment. The stock was pretended to have been sold by the bank, on failure to pay the assessment as levied. The court, passing on the sufficiency of that complaint says on page 67: ‘ ‘ The main argument under this head is, that the complaint states a cause of action in equity, in the nature of an action to quiet title to personal property. We are not inclined to view the complaint in so strict a technical sense. It may not be a model of pleading, but it states the facts, so that we know the points relied upon by the pleader. The prayer of the complaint asks for such relief as to the court may seem proper. If the facts are proven as alleged, we think the court would have no trouble in determining the relief that is usual and proper in such cases.”
The court in that case quoting from Morawetz, Private Corporations §208, says, “Upon the same principle, it has been held repeatedly that, if shares in a corporation are transferred upon the books, without the consent of the holder, under a forged assignment or power of attorney, the real owner is not thereby devested of his rights as shareholder, and is entitled to have his shares replaced upon the books, and to recover any dividends which have accrued upon them. If the corporation refuses to recognize the real
In the case of Western Union Tel. Co. v. Davenport, supra, the facts were that in March, 1865, Charles Davenport, a citizen of Ohio, died, leaving a widow and two minor children, the complainants here, his heirs. He was possessed at the time, beside other property, of eleven hundred and seventy shares of the capital stock of the Western Union Telegraph Company, which, upon the settlement of his estate were distributed equally between the widow and children, in whose name, respectively, they were entered upon the books of the company, and to whom separate certificates were issued. She was appointed guardian of the children. To her, as such, the certificates were delivered, declaring upon their face that only upon their surrender and cancellation they were transferable in person or by attorney on the- books of the company. On the back of each one was printed a blank form of transfer and power of attorney. She put those belonging to the children and the ones belonging to her and some government bonds, in a tin box, which was locked and deposited in the Fourth National Bank of Cincinnati for safe keeping. Her brother Bobert W. Eichey, at that time and' for some years after, an officer in the bank, had access to ■the box. He kept the key to it, during her absence from Cincinnati, in order to get for collection the coupons attached to the bonds when they became due. He afterwards took from the box the certificates belonging to Henry Davenport, and at a subsequent time those belonging to Catherine Davenport and forged their names to an alleged transfer and power of attorney and adding his own signature, as that of an attesting witness. In this form the certificates were sold and the purchaser using the forged power of attorney ob
The facts in the ease at bar present a stronger case than either of the eases above stated. In the case at bar the certificate of stock was never surrendered by the appellee. The court finds, as alleged in her petition, that she has continuously retained possession of the certificates of stock from the date of their issuance up to the time of the filing of her petition. On the authority of the cases above cited we hold that the complaint states a good cause of action.
The court finds, and is sustained by sufficient evidence, that the appellee was the owner of the stock of the appellant in the sum of $7,000. That she never, at any time, parted with the possession or ownership of the same; that she never transferred the stock to any person or persons; that she never authorized any other person to transfer the same for her, or in her behalf; and further finds that the same had never been transferred with her knowledge and consent. ¥e have examined the evidence in this cause and are fully satisfied that the evidence sustains the findings.
The question of the sufficiency of the complaint, the ruling of the court on the motion for a venire de novo, and the motion for a new trial, upon the grounds that the finding of the court is contrary to law and the motion in arrest of judgment have been considered jointly in what we have said heretofore in this opinion. The question is raised by appellant that the order of the court could not be complied with for the reason that it has not been found by the court that any stock remained in the hands of the company not assigned or transferred; and that the bank had no authority, without the consent of the Comptroller of the Treasury to issue any of this stock.
The question of an over issuance of stock is one that is not involved in this cause, and the fact that the bank issued other stock while this stock remains uneancelled can in no wise affect the ownership of this stock, or the right of the relatrix to participate in the affairs of the bank. The proper conclusions were reached in this case and there was no reversible error committed. Judgment affirmed.
Note.—Reported in 101 N. E. 620. Reported and annotated in 45 L. R. A. (N. S.) 1075. See, also, under (1) 26 Cyc. 466; (2) 26