247 Mass. 334 | Mass. | 1924
This is a suit in equity by the commissioner of banks, in possession under authority of the statutes on and since September 25, 1920, of the property and business of the Cosmopolitan Trust Company, against that corporation and numerous persons alleged to be holders of stock therein. The allegations of the bill are in brief that judgment was obtained against the trust company on July 5, 1921, for a large sum, that execution issued therein on which demand of payment was made on the trust company, that it neglected for thirty days thereafter to pay the amount due thereon or to exhibit real or personal property subject to be taken on execution sufficient to satisfy the same, and that the execution was returned unsatisfied on May 23,1922, that the commissioner of banks on October 31, 1921, determined that it was necessary to enforce the individual liability of the stockholders of the trust company under G. L. c. 172, § 24, to the full amount, in order to pay the liabilities of the trust company, and that such necessity still exists. Then follows an allegation that on September 25, 1920, and also on the date of the beginning of the action in which the judgment was obtained, the persons set forth in a schedule were stockholders in the trust company and owners of the number of shares of stock set against their respective names. The prayers are for an assessment and order for payment against the shareholders, and for general relief.
Demurrers have been filed by several of the defendants. Without stating in detail their grounds, they will appear as they are discussed.
2. It is not necessary that the commissioner of banks in bringing this suit allege that it is brought “ in behalf of himself and all other- creditors.” G. L. c. 158, § 49. That averment is inapplicable in the circumstances here disclosed. The commissioner is not a creditor himself but acts in behalf of the creditors entitled to share in the proceeds of the suit. The allegations are adapted to his duties and the liabilities which he may enforce. The distribution of the amounts recovered must be in accordance with the statutes.
3. The bill is not defective because not alleging that it is brought against “ all persons who were stockholders ... at the time of the commencement of the suit in which such judgment was recovered.” See G. L. c. 158, § 49. Manifestly suit need not be brought against stockholders who have already paid without suit. The commissioner of banks is enforcing liability under the power conferred by G. L. c. 167, § 24, and not as a creditor. The allegations are sufficient in this particular. There is no defect of parties.
4. The bill sets forth sufficient facts to warrant the enforcement of stockholders’ liability. The allegation in this particular is that the commissioner of banks has determined that “ it is necessary to enforce the individual liability of the stockholders as described in the first sentence of Section 24 of Chapter 172 of the General Laws ” to the full amount “ in order to pay the liabilities of said trust company.” Fairly construed, this allegation means that he has determined to enforce the kind of liability established by the statute for the
The liability of stockholders for all “ contracts, debts and engagements ” of the trust company under G. L. c. 172, § 24, is not restricted further by the words of G. L. c. 167, § 24, whereby the commissioner of banks in possession of a trust company is empowered to enforce the stockholders’ liability “ if necessary to pay the debts of any such trust company.” In other connections the word “ debts ” has a more constricted significance. Kilbourne Co. v. Standard Stamp Affixer Co. 216 Mass. 118. But it is used in G. L. c. 167, § 24, as a generic word to include every kind of liability of stockholders established under G. L. c. 172, § 24. Lathrop v. Reed, 13 Allen, 294, 296.
5. It is not essential that the bill set out with excessive accuracy of detail every preliminary step taken or conclusion reached by the plaintiff before deciding to bring suit to enforce stockholders’ liability. While an allegation that the trust company was insolvent and that its assets were insufficient to pay its obligations would not have been out of place, it was by no means essential. A determination that it is necessary to enforce the individual liability of stockholders under G. L. c. 172, § 24, imports inevitably a previous ascertainment of the fact that other assets of the trust company are insufficient to meet its contracts, debts and engagements as and when they ought to be met. The existence of
6. The allegation that the determination of the necessity to enforce the liability of stockholders under the statute was made by the commissioner of banks on a date prior to the
7. The. bill alleges a sufficient compliance with the requirements of G. L. c. 158, §§ 46, 49, as to recovery of judgment, demand on execution and failure to pay or to exhibit sufficient property subject to be taken on execution to pay the same. The trust company remains in existence as a corporate entity even though the commissioner of banks has taken possession of its property and business. It is subject to actions and suits. American Express Co. v. Cosmopolitan Trust Co. 239 Mass. 249. Beecher v. Cosmopolitan Trust Co. 239 Mass. 48.
It is not necessary to aver that the judgment in the action of the American Express Company against the trust company was recovered upon a cause of action for which a stockholder would be hable. The only requirement of G. L. c. 158, § 46, is that a judgment shall be recovered. The pleading need not go beyond the statute.
The averment as to demand and return of the execution is adequate. The commissioner of banks need not delay until the return day of the execution before bringing suit to enforce stockholders’ liability. The words of said § 46, requiring that “ the execution has been returned unsatisfied,” do not mean that such return cannot take place until sixty days after its date, which is the common return day of executions. That is not the effect of G. L. c. 235, § 23. The execution may be returned before that time. Chesebro v. Barme, 163 Mass. 79, where Niles v. Field, 2 Met. 327, and like cases are distinguished. Treasurer of the City of Boston v. Schapero, 217 Mass. 71, 75.
The allegation as to demand on the execution is that such demand was made on the corporation and on a person named as its assistant treasurer. That is sufficient.
Another argument of defendants in substance is that, because the judgment against the trust company could not
8. The approval of this court is not necessary as prerequisite to the bringing of this suit by the commissioner of banks in possession of the property and business of the trust company.
9. That the bill is not multifarious is too plain to require discussion.
10. The conclusions here reached in the main are supported by Commissioner of Banks v. Prudential Trust Co. 242 Mass. 78, and Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128, and the numerous decisions cited and reviewed in those judgments.
11. It becomes unnecessary to consider St. 1922, c. 488, because the averments of the bill are sufficient without reference to it.
12. It is stated in one of the briefs for defendants: “ These defendants raise the following federal questions; to wit: That the rights and powers contended for by the commissioner under his bill are violative of those articles of the Constitution of the United States which provide against the impairment of obligations, and against assumption of judicial authority by an administrative officer, and against proceedings and decrees without due process of law; and they pray that their rights to such federal questions be saved.” Nothing further is said about that matter. Of course, that is not an argument. It is the settled practice of this court to treat as waived all points not argued. It is not enough for parties to say that a point is not waived although not argued. The court does not ordinarily consider questions in support of which parties do not present any argument. Such conduct is the equivalent of waiver. Commonwealth v. Dyer, 243 Mass. 472, 508, and cases there collected. Attorney General v. Pelletier, 240 Mass. 264, 298. Commonwealth v. Dascalakis, 246 Mass. 12.
Order overruling demurrers affirmed.