12 Colo. App. 334 | Colo. Ct. App. | 1898
On demurrer the defendants had judgment. Many issues of law were presented, some dozen in number. The principal ones concern the misjoinder of parties plaintiff, the misjoinder of parties defendant, the union of causes of action, and the want of sufficient facts to constitute a cause of action. Counsel have supported their respective contentions with briefs of unusual and extraordinary length, and by the citation of hundreds of cases which were supposed in a greater or less degree to uphold the complaint or demonstrate its insufficiency. It cannot be said that the issues directly raised some and not others of the matters suggested, and under other circumstances the court might feel obligated to consider and determine each one of them. What this labor would amount to may be seen from a few suggestions. The suit was brought against
This clearly shows that these various grounds of demurrer are all involved and are legitimate subjects of argument. We find no fault with counsel for attempting to maintain the bill by the discussion of these various propositions, nor with the counsel for the appellees who have attacked the complaint on these various bases. The only trouble is, the discussion has taken such an uncommonly wide range and the citation of authorities is of such an overwhelming character that it is scarcely permitted to any court to examine, comment on, or do more than express a general opinion respecting all these propositions. I am very frank to say, that I have read and examined either casually or completely but a very small percentage of the cases cited. The labor is evident, when we consider that to determine the question of the misjoinder of parties plaintiff and misjoinder of parties defendant, compels a consideration of a long line of authorities which in turn are modified by the inquiry, whether this is an action at law or a suit in equity, and collaterally, whether for the breach of the obligation of the directors, the corporation or its assignee may file a bill to compel the directors to account and respond, and a different rule will prevail in the two different cases. There are many cases cited to us from New York and other states which hold that a bill in equity may be brought by a stockholder, and a few cases which incline to the opinion that a bill may be filed by the bank
The liability of directors of banking corporations, whether savings banks or banks of deposit and discount, for the loss of their deposits, must be, and always is, predicated either on the violation of some statute, or on a misconduct, negligent or willful, of the officer. Damages which come to corporations or depositors by reason of a violation of restrictive legislative acts, or by some of the several sorts of misfeasance, or possibly, nonfeasance, give rise to a cause of action. With the latter inquiry we have nothing to do. It is wholly unnecessary, therefore, to consider whether what the directors did, was done in good or bad faith, or the degree of care which trustees or directors must exercise in the discharge of their duty. We are relieved from the necessity to enter the much discussed field whether the trustees are liable for crassa negligentia, which accurately interpreted means gross negligence, or whether they are liable when they have simply omitted that care which a man of ordinary and common prudence exhibits in the management of his own affairs. This is a wide field and many authorities have been cited by counsel to the point. If we had reached it and been compelled to decide it much skill and labor would have been necessary to correctly resolve it and reconcile the various judicial expressions on the subject in the books. The lack of any allegations charging the directors with such misconduct we think wholly re
There is undoubtedly a very wide distinction between savings banks and banks of discount and deposit, ordinarily termed commercial institutions. A very large branch of the appellants’ argument has been devoted to the discussion of the relation of the bank to its depositors, and argument to the point that the directors are trustees and the depositors cestuis que trust. The whole discussion and all the authorities directly applicable are really those where the banks were savings banks pure and simple. We are free to admit that if such was the condition of this' bank and such its nature, it might well be contended the directors did hold to the depositors a relation of confidence and trust because that is the condition where the bank is not a commercial one. As we look at it, the Colorado Savings Bank had a title which was in one sense a misnomer. We do not find any enactment which provides for the creation and establishment of savings banks. The savings banks of Colorado, organized under the statute are not institutions for the sole conduct of the business ordinarily done by such organizations. That such banks exist in this country is clearly shown by various cases and the rules and principles which the courts have laid down in discussing the liability of directors of institutions of that class are in unison, but neither the principles nor'the arguments by which they are supported are applicable in other cases. Under our statute, savings banks so-called, can only be organized as concerns with a capital stock of not less than $25,000 or more as the organizers may determine. When they comply in all other respects with the act they are entitled to receive deposits. When a deposit is made the depositor does not thereby become entitled to all the accretions of the business. The assets and property, the gains and profits are not his. His deposit is made subject to the right to receive such interest as the directors may agree to pay.
With this premise we now proceed to consider the pivotal proposition, whether the acts charged were violations of the statute, or whether thereunder it is clear the directors had' the right to make the loans or the investments on the securities in the form and in the shape in which the various loans and discounts which are supposed to constitute the cause of action were made. It will be more convenient to cite the authorities supporting the position which the court takes prior to the discussion. Jennings v. Davis, 31 Conn. 134; Shoemaker, Auditor, etc., v. Smith, 37 Ind. 122; Gee v. The Alabama Life Ins. & Trust Co., 13 Ala. 579; Williams, Receiver, etc., v. McKay et al., 46 N. J. Equity, 25; Duncan v. The Maryland Savings Institution, 10 Gill & Johnson, 299; Scott v. Depeyster, 1 Edwards’ Chancery, 612.
Much learning has been expended in the discussion of the question of the proper interpretation of the statute which in general is : “ The board of directors or trustees may invest one half of the deposits on personal security, on bonds and stocks of the state or the United States, bonds of any city,
The judgment of the court below is in harmony with our views and will accordingly be affirmed.
Affirmed.