256 F. 277 | 5th Cir. | 1919
The appellant, a citizen of North Carolina, filed his bill in equity in the District Court of the United States for the Northern District of Georgia against the appellee, which was a national banking corporation, doing business at Rome, Ga. The purpose of the bill was to enforce against the defendant bank the right given a stockholder in a national bank, upon the amendment of the charter of the bank,, to withdraw from membership and compel the bank to liquidate his shares at an appraised value, provided he gives notice of his intention to withdraw within 30 days from the date of the approval of the amendment to the bank’s charter by the Comptroller of the Currency.
In the meantime, application for the renewal of the bank’s charter was filed, pursuant to the resolution of its hoard of directors, and a certificate of renewal was approved by the Comptroller of the Currency on August 14, 1917, which was the date of expiration of the old charter. The certificate of renewal, at the suggestion of the Comptroller, but not as a legal requirement, was published in a local newspaper at Rome for a period of 30 days. On September 14th the officers of the defendant bank received a letter addressed to “First Nat’l Rank, Rome, Ga.,” signed by the appellant, giving the bank notice of his desire to withdraw from the bank his 122 shares of stock, and, upon appraisal of their value, to be paid by the bank the amount thereof. The letter also inquired as to the date of expiration of the bank’s charter, and whether application had been made for its renewal to the Comptroller. The letter was dated September 12th, and mailed in Atlanta September 13th, but not delivered to the defendant bank at Rome until September 14th. To this letter, Mr. Reynolds, the bank’s president, for it, replied, acknowledging receipt of the notice, and ad
Some time in July, 1917, the appellant contended that the president of the defendant bank had stated to one Goodrum, a stockbroker, who bought the stock for him, and who, as appellant contended, still remained his agent to effect its withdrawal, that the time for giving notice of withdrawal was September 15th; that this statement was communicated by Goodrum to appellant, who acted upon it in refraining to give notice until after September 13th, and that the bank was estopped by its president’s statement from claiming that the notice was not timely. Reynolds denied giving Goodrum any misinformation as to the date of expiration, and denied that he knew that Goodrum had any connection with appellant with reference to the stock, on the occasion of the conversation between Goodrum and himself in which Goodrum testified the wrong information was given him by Reynolds. The District Judge, after hearing the evidence, dismissed the bill upon the merits, and from this decree the appeal is taken.
First. The pertinent part of section 5 of the Act of July 12, 1882, chapter 290 (22 Stat. 162), the act which authorizes the renewal of the charters of national banks and the withdrawal of nonassenting stockholders, reads as follows:
“Wlien any national banking association has amended its articles of association as provided in this act, and the Comptroller has granted his certificate of approval, any shareholder not assenting to such amendment may give notice in writing to the directors, within thirty days '¡rom the date of the certificate of approval of his desire to withdraw from said association.”
Section 5 then provides that he shall* be entitled to receive from the association the value of the shares held by him, to be ascertained by an appraisal made by a committee of three persons, one to be selected by the shareholder, one by the directors, and the third by the first two. It provides, further, for an appeal to the Comptroller by the shareholder, but not by the bank, and that the shares appraised and surrendered by the withdrawing stockholder shall, after due notice, be sold by the bank at public sale within 30 days after the final appraisal.
The correspondence between the appellant and Reynolds, the president of the bank, that occurred in July, was insufficient to constitute a statutory notice of withdrawal by appellant, because: (1) It was
(1) The act provides for written notice to the directors. It provides that the directors shall select one appraiser. This is enough to show' that notice to the president, unless shown to have been communicated to the directors, is insufficient. No such showing is made in the record. The resolution of June 6th authorized the president or cashier, merely following the language of the act, “to apply to the Comptroller of the Currency to have this amendment approved.” It did not authorize the president to do anything else, and therefore did not authorize him to either receive or waive notice for them. The important duty of selecting the appraiser is vested in the directors, and not in the president. It is a duty which the directors could not delegate to the president. It is a duly which the directors could exercise only after personal receipt of the notice of withdrawal. We conclude that the directors were the only officers of the bank who could receive the statutory notice, and that the president could neither receive nor waive it for them.
The appellant acquired no standing, predicated on the July correspondence.
Nor dqes it appear from the evidence of Goodrum that Reynolds assumed to act for the bank in reference to the conversation between them. Goodrum’s evidence also shows that, whatever the real fact may have been, and it does not seem to have been to the contrary, Reynolds had no reason to believe, at the time of the conversation, that he was talking to an agent of the appellant, or that the information given was intended to be communicated to appellant by Goodrum when it was disclosed by Reynolds. Reynolds, therefore, had no reason to believe it was to be relied upon or acted upon by appellant, when he made the statement, and, for that reason, Reynolds himself would not be estopped to thereafter dispute it — much less, the defendant bank. The District Judge may also well have found from the evidence that no erroneous statement was made by Reynolds to Goodrum.
The appellant contends that the order upon the motion to dismiss the bill of complaint as amended fixes the law of the case, except as to the sufficiency of a notice mailed on the thirtieth day but not reaching the bank till the thirty-first day, in favor of the appellant. The amended bill asserts the' full authority of Reynolds, as president of the bank, to act for the bank in all matters affecting the renewal of the charter, which would include .the withdrawal of nonassenting stockholders. The decree dismissing the bill on the merits, in other respects than the sufficiency of the notice of September 13th, was based upon the failure of the proof to establish such, authority, and to satisfy the court of the acts and conduct of the president relied upon by the appellant to constitute an estoppel.
The decree appealed from is affirmed, with costs.
Affirmed.