74 Colo. 484 | Colo. | 1924
delivered the opinion of the court.
Before the bank was closed some of the shareholders did, and others did not, pay the assessment. On November 8, plaintiff, who owned forty shares of the capital stock of the par value of $4,000, acting upon the. mistaken belief that the board of directors was vested with the power to make the assessment, complied therewith by giving his note to the bank in the sum of $3440, and thereupon the bank,
The parties are in accord, and the federal courts hold, that, under section 5205 R. S. U. S., which provides for the levying of an assessment upon shareholders of a national bank to replace worthless with good assets, or to make good an impairment of its capital, under which this purported assessment was levied, no assessment is valid unless sanctioned by its shareholders. Commercial National Bank v. Weinhard, 192 U. S. 243, 24 Sup. Ct. 253, 48 L. Ed. 425. In that case the action was by a shareholder against
A review of some of the cases bearing on this question will be helpful. In In Re Hulitt, 96 Fed. 785, it was held .that where shareholders of a national bank in good faith paid an invalid assessment to make good an impairment of the bank’s capital, on its insolvency and the accompanying liquidation of its affairs by a receiver, such paying stockholders are to be considered creditors as against nonpaying shareholders and should be repaid the amount so paid by them, after all outside or general creditors are paid, and before distribution of the remaining assets, if any, among all the stockholders. The court, on page 789, said: “When, therefore, the claims of the creditors are all satisfied, then the receiver, or an agent selected by the shareholders, will be required to distribute the remainder of the proceeds of the assets of the bank in accordance with the provisions of the statute.” That means a distribution ratably. The plaintiff says that the words: “When, therefore, the claims of the creditors are all satisfied,” are dicta, because the question of a preference was not before the
To the point that the payment here' was involuntary, plaintiff cites Brown v. Tillinghast, 84 Fed. 71, where, on page 72, the Circuit Judge said on this point: “I hold that a payment is not a voluntary payment if made under an erroneous belief on the part of the payor as to a liability to pay, which in fact did not exist, and that money paid under a mistake as to the facts affecting a supposed liability may be recovered back.” And to this the learned judge cited United States v. Barlow, 132 U. S. 271, 10 Sup. Ct. 77, L. Ed. 346. It is to be observed that the quotation, though possibly ambiguous, might permit a recovery if the same was made by the payor under a mistaken belief that the law, upon admitted facts, imposed a liability. In other words, that if a payment is made as the result of a mistake, consisting of an erroneous belief as to the applicable law, its recovery may be had. The citation to the Barlow Case does not bear out the conclusion of the Circuit Judge in the Brown Case. The Supreme Court of the United States, in the syllabus of the Barlow Case accurately shows what that tribunal decided. “Money paid by the Post-Office Depart
To the facts of this case let us apply the principle. The plaintiff knew that the shareholders did not levy this assessment. As a shareholder in a national bank, and because of his relation thereto, he is charged with knowledge of the law as declared by the Supreme Court of the United States in the Weinhard Case, supra, that an assessment under section 5205 could not be legally made without the sanction or approval of the shareholders. Plaintiff was a shareholder himself, and must have known as a fact that this assessment was not levied by him and other share'holders. Whether the attempt was made by the board of directors or by the comptroller to make the levy is immaterial. No others than the shareholders could make it. Plaintiff’s mistake was not one of fact. His action in making the payment was because of his erroneous belief or judgment that an assessment made by the board of directors was valid. It would seem unnecessary to discuss the proposition that a shareholder of a national bank is charged with knowledge of the law that only the shareholders can make a valid assessment under this section. That
The Hulitt Case cites with approval Winters v. Armstrong, 37 Fed. 508, which concerned the claim of a shareholder on a deposit which he had made on a subscription to the capital stock of the association. There the court said that where such a deposit is intended to be used and applied towards the furtherance or accomplishment of the scheme, and it is so applied, the subscriber may not be able to recover upon the failure of the enterprise, though under-the facts the recovery might have been had if the scheme had been successful. It would seem that the same principle applies here, though the case before us is not precisely the same in its facts, because the payment of money by the plaintiff and other shareholders was made for the purpose of securing the privilege of continuing the business of the bank of which they were the equitable owners, and the bank conducted that business as the result of such payments, and the money so paid was not only paid for the purpose of, but was actually used and applied toward, the furtherance and accomplishment of the scheme of business for which the bank was organized, and, although the enterprise failed, and insolvency followed, the equities of the general creditors are superior to the equities of paying shareholders.
True, as the plaintiff contends, a receiver takes the assets of an insolvent bank as a mere trustee of the creditors, and, in the absence of a statute to the contrary, subject to all claims and defenses that might have been interposed as against the insolvent corporation. 7 C. J. p. 843, § 820, note 85 [a]. Plaintiff presses with vigor the argument based upon this statement of the law as a premise, and says that if the bank had not become insolvent, and was prosecuting its regular business by its officers, he could recover the amount of this illegal assessment. That, also, may be true. Nevertheless, as the payment by him and other shareholders was made for the purpose of preventing, and secured an exemption from involuntary liquidation, if the rights of the general creditors are injuriously affected, they are not to be sacrificed to the interests of the shareholders, for whose benefit the bank was permitted to do business, during which time and before the plaintiff sought relief, the rights of the creditors attached.
As we read the able opinion of Mr. Justice Matthews in Delano v. Butler, 118 U. S. 634, 7 Sup. Ct. 39, 30 L. Ed. 260, it is applicable to this case, and decisive against the plaintiff’s contention. In the opinion there two cases, consolidated for hearing as one case, were disposed of. One was an action at law by the receiver of a national bank to enforce the liability of a shareholder under section 5151 for an amount of 100 per cent of the par value of his stock levied by the comptroller for the benefit of creditors. The
“His payment was voluntary; it was made either with actual knowledge of the facts, or with such opportunity and*494 means of knowledge as, by the exercise of common diligence would have made him acquainted with the facts, and the payment made by him in conjunction with his co-stockholders was made upon a distinct consideration, whereby the bank in which he was interested was enabled to undertake anew its regular active business. Such a course of action on his part must be construed to constitute a complete acquiescence in and ratification of the previous action of the association, and the Comptroller of the Currency, in reference to the increase of the capital stock.”
The court, after saying that the conclusion reached was not weakened by the suggestion that the affairs of the bank were, more or less, under the supervision of the Comptroller of the Currency acting through the bank examiner, thus proceeded:
“Nor is the conclusion affected by the other consideration, also urged in argument, that the attempt to revive the business of the bank by means of the assessment proved unsuccessful and abortive. The association, through its directors and stockholders, undertook the task, and entered upon its accomplishment, and in doing so materially changed its relations to its creditors. The failure to prosecute its business successfully certainly cannot have the operation now claimed for it, of making illegal all that was done in the prosecution of the experiment. The hazard of failure must be presumed to have been in the contemplation of the stockholders when they consented to the risk, and the consequences of failure cannot now be shifted from themselves to their creditors.”
In the Delano Case one object of the shareholder in his suit was to set off as against his liability under section 5151, which was for the benefit of creditors, the previous payment which he had made, under section 5205, which was made for the purpose of restoring loss of capital, and as a consideration for the privilege of continuing to do business. But the court there said that could not be done. The plaintiff here concedes this was rightly decided, but says the ruling does not apply to the present case, because
In the Delano Case, as here, the shareholder vigorously contended that his equity rested upon the fact that the money paid by him under the assessment was, in fact, applied to the satisfaction of the debts of the bank, and that' he paid it in the belief that it would exonerate him from further liability as a stockholder. The court to this contention said, if the assessment was applied by the bank to the satisfaction of the debts, there was nothing to show that it had done so ratably as required by section 5151. The assessment there, as here, was not paid for the purpose of effecting a liquidation of the affairs of the bank, but it was understood to be the price paid for the privilege of continuing its business, in the hope of saving the investment of the shareholders. In that case, as here, and it -is controlling, any mistaken supposition by a shareholder in
It seems to us, under the authority of the Delano Case, there can be no recovery by plaintiff in this action as against the receiver, as the representative of the creditors, except out of assets remaining after all the general creditors are paid, and then the plaintiff and other paying shareholders should be preferred as to the remaining assets as against nonpaying shareholders; and we so hold. But let it be assumed, but not decided, that the payment by the plaintiff of the invalid assessment was involuntary in the legal sense. In Duke v. Force, 120 Wash. 599, 208 Pac. 67, 23 A. L. R. 1354, only the statutes of Washington were construed, but they are, in all substantial respects, so like sections 5205 and 5151 R. S. U. S., the controlling statutes here, that we think the Washington decision is authority for our conclusion that plaintiff’s claim may not be established as a preferred claim against the assets of the Sterling bank in the hands of the receiver. It may be true, at least in part, as plaintiff says, that the Washington decision was based upon an estoppel in pais, or upon a principle in the nature of an estoppel. No estoppel Was pleaded in this case. The general rule is that an estoppel in pais must be specially pleaded. This court has so decided in several cases. Yet, it has also decided (Field v. Kincaid, 67 Colo. 20, 25, 184 Pac. 832), though not commending the practice, that a party may avail himself of an estoppel, though not specially pleaded as such, if the facts constituting it are pleaded and proved by either party. In Gilette v. Young, 45 Colo. 562, 566, 101 Pac. 766, evidence furnished by a party may estop him though the estoppel is not pleaded. Therefore, if the facts set forth in these pleadings and admitted by the motion for judgment on the pleadings, constitute an estoppel, defendants may avail themselves thereof, though not specially pleaded as such.
In the Duke Case the Supreme Court of Washington, after adverting to the fact that different courts differ as to
Plaintiff further contends that the citation made from the Washington Case is not applicable or pertinent here, because the material facts upon which the decision there rested appeared from the pleadings, and such, or a similar state of facts do not appear in these pleadings. Plaintiff says that there are no facts in this record, either in the pleadings or elsewhere, that new rights accrued or different relations were established, or that new creditors came into existence, or that old • creditors changed their status. Not so. We think it is a fair inference, from the admitted facts in this case, that after the Sterling bank was permitted by the comptroller to continue in business after the early days of November, as the result of payments by shareholders of an invalid assessment made by its board of directors, deposits were received, new creditors came into existence, the status of old ones changed, and this must necessarily be so. In the absence of evidence to the contrary, we are justified in presuming that such conditions existed in the present case as were stated by that court. During this period the bank transacted its regular business just as it did before; depositors put money into the bank and drew money out; notes were given; notes were paid; the bank received payments on its loans and
For still another reason we think the judgment is wrong. Assuming with plaintiff that, if the money paid upon this illegal assessment came into the possession of the receiver and to that extent augmented or increased the assets of the insolvent estate, plaintiff might be entitled to the appropriate judgment. It is not necessary under the established rule in this jurisdiction that money may not be traced as a trust fund, although it has no earmarks. If the money which plaintiff paid on the illegal assessment to the Sterling bank had been commingled with its funds generally, and afterwards, thus commingled, had come into the hands of the receiver, if, in other respects, this constituted a trust fund which plaintiff is entitled to recover, the fact that the identical money was not in the hands of the receiver is not important. In this case it is alleged in the answer, and admitted by plaintiff, that when this money was paid by the plaintiff to the Sterling bank for the purpose indicated, it was at once transmitted to the National Park Bank and applied upon the indebtedness of the Sterling to the New York bank. This was not a payment
The application for supersedeas is denied and the judgment of the district court must be, and hereby is, reversed and the cause remanded with instructions to vacate the same and, in lieu thereof, to enter a judgment against the bank awarding plaintiff the amount of his claim, to be paid by the receiver, if at all, only out of the remaining assets, if any, after the general creditors, including the depositors, are paid in full, and ratably out of such remaining assets with other paying stockholders of such assessment, if any, as against the non-paying shareholders.