16 S.W.2d 739 | Mo. Ct. App. | 1929
The defendants filed an amended special demurrer setting up (1) that the cause of action accrued more than five years before the filing of the petition and was, therefore, barred by the five-year Statute of Limitations (Sec. 1317, Revised Statutes of Missouri, 1919) and (2) that the cause of action accrued more than three years before the filing of the petition and that it is barred by the three-year Statute of Limitations (Sec. 1318, Revised Statutes of Missouri, 1919).
The demurrer was sustained and the plaintiff, declining to amend her petition or plead further, judgment was entered in favor of the defendants.
Plaintiff here contends that the petition shows on its face that it is not barred by the limitations of either section 1317 or section 1318 of the Revised Statutes of Missouri, 1919; that the liability created by the provision of section 27, article 12 of the Constitution, and sections 11763 and 11764 of the Revised Statutes of Missouri, 1919, is a contractual one, and, therefore, the applicable limitation is that fixed by section 1315, Revised Statutes of Missouri, 1919.
Is the liability created as aforesaid a penal or contractual one?
In the case of Eads v. Orcutt,
"But when the statute imposes a liability on the corporation officer which was not his, as a consequence of his doing a forbidden act, it is a penalty (in a local sense) notwithstanding it may afford a remedy to the party complaining. It would be so held by the Supreme Court. [Guerney v. Moore,
In the case of Ivie v. Bailey (Mo.), 5 S.W.2d l.c. 53, the court has this to say with reference to the above constitutional provision: *756
"The latter portion of the section in considering its nature and the purpose of its adoption should be construed as creating a civil liability."
We think there can be no question of the soundness of the conclusion reached in the above cases. Under the constitutional provision and statutes involved here the liability is not directed against all stockholders alike but is directed against certain persons, some of whom may not be stockholders, so that, in the singling out of the persons named in those provisions, it seems clear that the statute is a penal one, enforceable as a civil action. The usual statutory provisions fixing double liability upon stockholders (as in the cases relied upon by the appellant) apply to all stockholders and could not and do not apply to nonstockholders.
The appellant argues, however, that the use of the word "debts" in our constitutional provision and statutes shows an intention to create an obligation contractual in character. A reading of the constitutional provision and the sections of the statute discloses, however, that there are two subjects treated of; in the constitutional provision it is stated that if the persons named shall "assent to the reception of deposits. or creation of debts" and subsequently provides that the persons named "shall be individually responsible for such deposits so received and all such debts so created with his assent." These same provisions, in substantially the same words, appear in the two sections of the statutes referred to. The word "debt" is not used to describe deposits, but an obligation of the bank other than a deposit. Nor does it refer to such obligation as one owing by the director, or other officer, but is descriptive of the obligation assumed by the bank with the assent of the director or other officer. In no wise can they be said to indicate an intention to declare the punishment prescribed as being in any wise a contractual obligation so far as the offenders are concerned.
In the case of Diversey v. Smith,
"In short, there the debts for which the stockholders were held liable were contracted pursuant to law, while here those for which they are sought to be held liable were contracted in violation of law. . . . Here, the statute in effect says the thing shall not be done, and if it is done, the trustees and corporators shall be liable, etc. In all the cases referred to the statute says the thing may be done, and the stockholders, etc., shall be liable, either absolutely or until some subsequent thing shall be done. In the one case the liability is in consequence of violating the law, or suffering it to be violated; *757 in the other the liability is incurred in strict compliance with the law — in short, in the one case the liability is for a wrong done — a tort; in the other it is upon contract."
The appellant next insists, in effect, that notwithstanding the constitutional provision and sections of the statute may be penal in their nature, that the two sections of the Statute of Limitations relied upon by the defendant are not conclusive because they are limited by the provisions of the opening section of our Statute of Limitations which is as follows:
"Sec. 1315. Period of limitation prescribed. — Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; Provided, that for the purposes of this article, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered and full and complete relief obtained."
Finding as we have that the provisions are in character penal but enforceable as civil liability, we think there can be no question that sections 1317 and 1318 are subject to the proviso forming part of section 1315. Yet we do not see how this can aid the plaintiff in the present action. The plaintiff would have us construe section 1315 as if it provided in the instant case that the limitation should not begin to operate until the actual loss, after liquidation, is found. We are bound to ascertain and give effect to the intention of the Legislature as expressed in the statute, and where the language used is plain, it must be given effect by the courts. [Lincoln University v. Hackmann, 295 Mo. l.c. 125,
Nor are we convinced that the respondents are correct in their theory in asserting that the statute began to run upon the making of the deposit in the alleged insolvent bank.
The language of the statute is that the cause of action shall not be deemed to accrue when the wrong is done, or the technical breach of contract or duty occurs (as respondents contend) "but when the damages resulting therefrom is sustained and is capable of ascertainment." It is necessary, therefore, to the operation of the statute against a claim that the damage resulting from the breach is both sustained and capable of ascertainment. According to our view the proper construction of the section depends upon the word "ascertainment." That word has been held to mean. "To make certain by examination; to find out." The word "ascertain" is held to *758 have two meanings: (1) known — (2) made certain. [L.R. 2 P. D. 365.]
In the case of Brown v. Lyddy (N.Y.), 11 Hun, 451, 456, that word is held to mean "to make sure or certain; to fix; to establish; to determine; to settle."
It seems to us, therefore, that the time when the statute begins to operate against a claim under the constitutional and statutory provisions aforesaid, is the date when it has been discovered or made known to the public that the officers or agents have violated the provisions denouncing the reception of deposits when the bank is in a failing condition or insolvent.
The allegations of the petition are that on or about August 31, 1922, the doors of said bank were closed because of the insolvency of the bank and the affairs were then taken over by the Finance Department of the State for the purpose of liquidation. It was then that the damage resulting from violation of the prohibition was sustained and was capable of ascertainment or discovery and it was at that time that the Statute of Limitations, section 1318, began to run against the claim, while this suit was not instituted until August 29, 1928.
It seems clear that by the constitutional provision and the sections of the statutes involved, it was intended to make the directors liable for the whole amount of deposits received in violation of those provisions, and that the depositors are entitled to maintain an action for any balance due them on such deposits (White v. Poole (Mo. App.), 272 S.W. l.c. 1028) immediately upon the determination of ascertainment of the fact of the insolvency.
The judgment of the circuit court is affirmed. Becker andNipper, JJ., concur.
REPORTER'S NOTE: — Certiorari issued in the foregoing cause by the Supreme Court, on hearing, was quashed, December 11, 1929. See