91 Mo. 196 | Mo. | 1886
Plaintiff brought this action against Joseph Brown, assignee of the Warrensburg Savings
On January 17, 1880, a majority of the board of directors of said bank met in regular session, and upon motion duly seconded, resolved that they believed it to be to the interest of all concerned that Joseph Brown be appointed assignee to settle up the business of the bank, and that William Calhoun, president, and Amos Markee, cashier, be authorized and directed to execute and deliver to said Brown, as assignee, a deed of assignment, in form of law, conveying to him all the property owned by the bank, to be held for the benefit of all its creditors according to the laws of this state.
Afterwards, on the twenty-sixth day of January, 1880, a deed of assignment was, under authority of said resolution, executed, acknowledged, and delivered to said Brown, who caused the same to be recorded, in the office of the recorder of deeds for Johnson county, Missouri, on the twenty-sixth day of January, A. D., 1880, and immediately thereafter, and in pursuance and by virtue of said instrument, took possession of all the
The above facts, except as to the successorship of said Wood (which appears by said stipulation, filed in this court) appear from the petition in this case, which further avers, in substance, that the said majority of said board of directors adopted, and caused to be entered upon the records of the proceedings of said board, the said resolution of January 17, 1880, without authority from, or notice to, the owners and holders of the shares of the capital stock of said corporation, and without notice, assent, or knowledge, and against the desire, of plaintiff, and that the said deed of assignment, having been executed without the assent or knowledge of the said several shareholders, is void, and of no binding force, as against them; that the specified directors, constituting a majority of the board, have conspired to and with defendant, Brown, and are aiding and abetting him to claim possession of the property and effects of said corporation, under the said instrument, and refuse to bring this suit in the name of the corporation against said Brown, for the relief of the shareholders, and that plaintiff, therefore, brings the same, on his own behalf, and in behalf of all other shareholders in said corporation, similarly situated.
Defendants interposed a demurrer to the petition, assigning as the grounds therefor that the same does not state facts sufficient to constitute a cause of action; that there is a defect of parties plaintiff, and that if plaintiff ever had a right of action, as claimed, he is, by his own showing, estopped from now asserting it. This demurrer was sustained by the court, and the propriety of its ac
The resolution, in itself, does not purport the insolvency of the bank, but only, perhaps, failing circumstances, and present inability to convert its assets into cash, and to pay its debts on demand. But, as against the jleader, so failing to allege the solvency of the bank, or iis ability, ultimately, with proper management, to meet it¡ liabilities, taken in connection with the actual assignment by said deed for the benefit of creditors, we think the case presented is one solely as to the power'of a board of directors of an insolvent banking corporation, acthg in good faith, to make an assignment of all its
The single remark of the learned judge in the course of that opinion, to the effect that the assignment, by the directors, was ultra vires and void, as to stockholders, if they did not consent thereto, is a mere dictum, as is apparent from the above statement of the actual question before the court for decision. The dictum is expressly based upon the authority of the case of Abbot v. The Hard Rubber Co., 33 Barb. 578, which decides, we think, a very different question from the one at bar, as is apparent from the language employed in the opinion of Sutherland, J., at page 584', where it is said, “the sale and transfer in question was not, and dil not purport to be, a sale of the property of the corporation for the benefit of its creditors.” In that case, four of tie seven directors, after passing a resolution to that effect, perfected an absolute sale, in gross, of all the stock, consisting of articles composed of India rubber; belonging to the corporation, and of .all the dies, tools, etc.,
Section 157, Field on Corporations, also referred to in Eppright v. Nickerson, supra, in this connection, is to the same general effect as the Abbot case, which is cited in the note. The instances mentioned in said section, of acts not within the power of the directors, belong to this class of attempted sales and alienation of property, essential and necessary to the transaction of the business of the corporation, and to the prosecution of the purposes of its creation, and to application by them for legislative changes or enlargement of corporate powers, or to acts destructible of its corporate existence.
In the recent case of Chew v. Ellingwood, 86 Mo. 260, at page 273, this dictum of the Eppright-Nickerson case, supra, is expressly ruled otherwise by this court; where it is said that, “ the point made by appellants’ counsel, that the assignment, made by the directors, is void, must be ruled against them. The right of the directors of a bank, in failing circumstances, to make an assignment for the benefit of creditors, where there is nothing in the charter or general laws - forbidding it,
In Chew v. Ellingwood, supra, this court further say, that “ many of the authorities cited go to the extent of saying- that, under such circumstances, the directors not only have the right, but that, in justice, they ought to make an assignment, so that creditors might share equally in its assets. Indeed, under constitution and laws which make it a felony for directors and officers of a bank to receive deposits, knowing it to be in failing-circumstances, it would seem to leave them no other alternative but to close its doors.” We think we may,
And, further, we think, it may well be questioned whether the plaintiff, upon his own showing, has seasonably begun his action in this behalf. At the date of the institution of the suit, the assignee had been in charge of the property for about four years, during which time he must be presumed to have been engaged, as the law requires, in execution of his trust, making exhibits of accounts, auditing and allowing the same, incurring costs and expenses, such as are incident to the execution of such trusts, and, perhaps, in paying dividends on the claims of creditors. Nothing is alleged, by way of disability or want of knowledge in the premises, or otherwise, showing excuse for so much delay, and, as plaintiff is a creditor, protected as such, equally with all others, under said assignment, we cannot see that his attitude as stockholder, not consenting thereto, and invoking the doctrine of ultra vires, after the lapse of so much time, is a meritorious one.
We are, also, earnestly asked to review our ruling, in Eppright v. Nickerson, 78 Mo. 482, as to the sufficiency of the signing and acknowledgment of the said deed of assignment; but we see no good reason to change the views, in that behalf, expressed in that case, and in the case of the City of Kansas v. Railroad, 77 Mo. 180, to which reference is there made.
Por these reasons the judgment of the trial court, which Avas for the defendants, should be, and is, hereby affirmed.