Hampton & Branchville R. R. & Lumber Co. v. Bank of Charleston

48 S.C. 120 | S.C. | 1897

Lead Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

Both parties, plaintiff and defendant, are corporations, and the object of plaintiff’s action is that the defendant may be adjudged to deliver to the plaintiff the 200 shares of the capital stock in such plaintiff corporation, which has been pledged to snch defendant, corporation illegally. The history of the whole matter, as .briefly stated, is as follows: On the 3d day of January, 1893, the plaintiff, contemplating the completion of its railroad from Hampton C. H. to Branchville, both points being located in this State, deemed it necessary for this purpose that a bonded indebtedness should be created to the extent of $10,000 a mile from Hampton to Branchville. An agreement on that day was executed by the plaintiff of the first part- to and with the National Land Improvement and Manufacturing Company (which latter was a corporation created under the laws of this State) of the second part, wherein it was provided: “The party of che first part agrees to transfer $50,000 of the capital stock of the Hampton and Branchville Railroad and Lumber Company, the capital stock having been increased to $100,000, to the party of the second part, and deliver to them for sale immediately the first mortgage six per’ cent, bonds on all the road bed and properties of the said company now acquired, or to be acquired hereafter, on the proposed line of railroad from Hampton, S. C., to Branchville, S. C., to the extent of $10,000 per mile. Such bonds to be immediately engraved and gotten up in such style as the party of the second part may direct, and as the party of the first part may approve, and secured by a trust deed on all the property and franchises now or hereafter to be acquired, as is usual in railroad mortgages. (2) It is further agreed, that the party of the first part will furnish the right of way, with specifications of the manner of construction, together with a profile of the road, and such estimates and certificates as may be necessary in filling the contract for and in the construction of said road. (3) That the party of the second part, in consideration of the delivery to them of the securities above named, agree to negotiate and dispose of the said bonds to the best advantage possible, subject to a price to be approved by the party of the first part; and from the proceeds of the said securities, to build and equip the railroad from Hampton, S. C., to Branchville, S. C., in such manner and under the specifications furnished by the engineer of the party of the first part; the equipment to consist of locomotives and cars and such other equipments as may be reasonably necessary for the proper conduct of the business. (4) It is further agreed and stipulated, that the party of the second part proceed with the work as rapidly as possible, and consistent with the funds they may have in hand from the negotiations of the said bonds. It is also agreed, that in the fulfillment of their contract, they shall have the use of that part of the road now laid, together with the equipment, and the right to exchange as much of the old rail and equipment for new as cannot be used to an advantage for sidings and other purposes. (5) It is further agreed and stipulated by the respective parties, that in order that the party of the first part may make immediate extension of about six miles of their road, that the party of the second part agree to accept and pay drafts drawn at ninety days from time to time, as may be needed for the payment of materials, labor, and supplies, the gross amount of such advances not to exceed $25,000. The said amount as advanced by the party of the second part to be paid back to said advancers by the sale of the aforesaid bonds, and in the absence of the sale of the said bonds, as contemplated by their agreement, then the said amount is to be paid.by the party of the first part; and in the meantime the party of the second part shall hold the first mortgage bonds as aforesaid, as collateral security for said acceptances; and it is further agreed and stipulated, that should others be deemed advisable by the respective parties to these presents, they may be effected from time to time, as may be agreed rum on the terms aforesaid. (6) It is further agreed by the party of the second part, that on failure to negotiate or sell said bonds within twelve months in sufficient sums for the completion of the road, that they will, after ninety days notice by the party of the first part, return to them the said stock and bonds, as agreed in section 5 of this agreement.”

According to the first clause in said agreement, the plaintiff, on the 3d day of January, 1893, did issue to the said National Rand Improvement and Manufacturing Company $50,000 of its capital stock, by delivering 500 shares thereof at $100 per share. According to the fifth clause of said agreement, the plaintiff did make drafts, at ninety days, upon the National Land Improvement and Manufacturing Company, as follows: March 1, 1893, for $3,000; March 2, 1893, for $1,438.17; March 15, 1893, for $1,687.82; April 4, 1893, for $2,000, and April 15, 1893, for $875.70, aggregating $9,001.69, all of which were accepted, but none ever paid. Not a dollar of the proposed bonds were ever prepared or sold; nor was there even the slightest compliance by this National Land Improvement and Manufacturing Company with the agreement, except the acceptance of drafts, which it never paid.

On the 15th of May, 1893, the National Land Improvement and Manufacturing Company carried 200 shares of the capital stock of the plaintiff corporation, represented by scrip Nos. 13 and 17, each for 100 shares of the same, to the defendant, the Bank of Charleston, National Banking Association, and offered them as collateral to secure its note for $8,000. The offer was accepted, the note discounted, the 200 shares assigned as security. On the same day the note was discounted, one John C. Mallonee, as its general manager, checked out every dollar that was realized by the loan in payment of the paper of the said National Land Improvement and Manufacturing Company due to said bank, except about $2,500, which was applied to two obligations to said bank, in which the National &c. Company had no concern whatever. Soon afterwards, this National &c. Company made an assignment of its whole property for the benefit of its creditors, being wholly insolvent. But before its failure, Wm. H. Mauldin, as president.of the plaintiff, made demand upon John C. Mallonee, as general manager for said National &c. Company, for a surrender of the 500 shares of the capital stock of said plaintiff corporation, as provided for in clause 6 of agreement. While Mallonee did not refuse to do so, he certainly did not so- surrender. The plaintiff corporation, hearing of the offer and intention of the defendant bank to sell the 200 shares of its stock pledged to it by the National &c. Company, commenced this action against defendant bank for the recovery of said 200 shares of stock, reciting the foregoing facts as the basis for such relief. The answer of defendant bank controverted this right, alleging that it held such 200 shares of stock under the assignment of one of its customers, National &c. Company, without any notice of any claim thereto or lien thereon by the plaintiff railroad company, and, therefore, as an innocent holder without notice, for full value. All issues of law and fact were referred to G. H. Sass, Esq., as master, who heard the testimony offered by both sides. In his report to the Court, he found all the facts and law against the plaintiff, and recommended that the complaint be dismissed, but that defendant was entitled to a judgment against the plaintiff by which the plaintiff would be ordered to issue 200 shares of its capital stock to the defendant bank, upon the defendant’s surrender of the 200 shares pledged to the bank by the National Nand Improvement &c. Company. The plaintiff now appeals to this Court. Net the report of the master, the Circuit Judge’s decree, and the exceptions thereto appear in the report of the case. We will now consider these exceptions.

1 So far as the first exception is concerned, it is unquestionably true that the proceeds of the $8,000 note, when discounted for the Nationál Nand Improvement and Manufacturing Company by the defendant bank, were not all applied to the notes of the former with the latter, for such proceeds were applied to the Steinmeyer Number Company note for $447.34, and to the note of Mallonee & Co. for $2,000, and the testimony in the case fails to disclose any connection of the National Nand Improvement and Manufacturing Company with either one of these notes. This was an erroneous finding of fact both by the master and the Circuit Judge, but the materiality of this error as to a fact may or may not be important.

2 The tenth exception is well taken. When the master recommended, and the Circuit Judge decreed, that the plaintiff should issue to the defendant 200 shares of the capital stock of the former, they each went outside of the issues necessarily involved in the action; they, in fact, granted an affirmative relief to which the plaintiff had a right to object; for, as was well observed in the argument of the appellant, the plaintiff may possess some good defense against such issue which, under the pleadings, it was not invited to make.

3 The fourth exception is not well taken. The legislature of this State, in its charter granted to the National Land Improvement and Manufacturing Company, expressly conferred the power upon such company to hold stock in other corporations. 20 Statutes at Large, 829, sec. 7.

4 The remaining exceptions we will consider as a whole, for really here is the turning point in this action. Is the defendant bank entitled to the defense of an innocent purchase for full value without notice? Shares of the capital stock of a corporation are non-negotiable securities, and the usual incident to such non negotiable securities is, that all subsequent holders are required to take them, with all the equities subsisting in favor of the maker against the first holder; but commerce and the widely diversified channels of the business of corporations in this country, as well as in many others, have caused courts to recognize some salutary rule by which this sternness of the law has been greatly mitigated. This doctrine of equity and good conscience of an innocent holder for value without notice is a good illustration. The cases in our own State of State Bank v. Cox & Con 11 Rich. Eq., 344; Fraser v. City Council, 11 S. C., 486, are directly in point here. M3' difficulty has not arisen from any opposition to this beneficent rule of equity. At one time I had determined that the equities of all parties here would be harmonized by a denial to the defendant bank of its right to hold these 200 shares of the capital stock of the plaintiff, so far as the Steinmeyer Lumber Company note for $447.34 and so far as the Mallonee & Co. note for $2,000 were concerned, but allow the defendant’s right to hold said shares to' protect the balance of the $8,000 for which these 200 shares were pledged, upon the ground that the Steinmeyer Lumber Company note and the Mallonee & Co. note were no part of the National Land Improvement and Manufacturing Company’s obligations, as established by the proofs in this case, and that, therefore, to that extent, the bank had failed to show that it was an innocent holder for full value without notice; but subsequent reflection has tended to convince me that it might be that this would not be measuring to the plaintiff the full protection of the law. It is admitted that the plaintiff has not received as much as a farthing for these 200 shares of its capital stock, but it deliberately issued the same to the first holder, signed and sealed, and thereby put it in the power of the first holder to hold themselves out to the world as the true owners thereof; and this view seemed at first to be controlling in making the plaintiff liable to have its equity on the stock postponed to that of the bank, for it is nowhere contended that actual notice of these equities of the plaintiff reached the defendant bank. But, unfortunately for the bank, there is another principle of law which the plaintiff claims, and that is, constructive notice; that it being developed by the scrip itself that it purported to evidence shares in the capital stock of a company incorporated under an act of the General Assembly of this State, it became the duty of the bank to look to this source of power with a view of knowing what powers, limitations, and restrictions were impressed upon the plaintiff railroad company by such act in its issue of stock, as well as the liability of the holders of the same. Herein I think the distinction exists between the present and many other cases. In most cases no mention is made, in the act of government creating the same, as to the lien of the corporation itself upon the shares issued to stockholders to secure the subscription. Usually questions are raised of an entirely different kind as to the rights of holders of stock. But in the case at bar it arises as to the payment of the subscription for the stock* and the matter is expressly provided for in the act of the General Assembly of this State. Section 9 of the act to charter the Hampton and Branchville Railroad and Lumber Company, 20 Stat. at Large, 1171. Section 9. * * * “Any purchaser of said stock shall be subject to the same rules and regulations as the original owner, and no sales of the original owner of the stock or his assigns shall relieve the original owner from his obligations to the company to pay the whole of his subscription.” As before remarked, this act is made a public act, and this being so, this provision became incorporated by law in the contract evidenced by the issue of scrip as much so as if especially set out in the same. The bank was bound with notice of these provisions, and this being so, the defense that it is an innocent holder for value without notice cannot be sustained. It follows, therefore, that the judgment of the Circuit Court was erroneous in not giving to the plaintiff the judgment prayed for.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court, with directions to formulate a decree therein affording the plaintiff the relief prayed for in the complaint.

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Concurrence Opinion

Mr. Justice Gary.

The plaintiff and the National Land Improvement and Manufacturing Company, of Charleston, S. C., entered into an agreement in January, 1893, whereby the plaintiff agreed to transfer $50,000 of its stock to said National Land Improvement and Manufacturing Company, and to deliver to it for sale certain first mortgage bonds on plaintiff’s road. The said National Land Improvement and Manufacturing Company agreed in consideration thereof to negotiate and dispose of said bonds to the best advantage, and from the proceeds of sale to build and equip a part of said road, also to accept and pay drafts from time to time, to an amount not to exceed $25,000, for material, labor, &c. These advances were to be repaid from the sales of the bonds, which were to be held as collateral security for said advances. The National Land Improvement and Mánufacturing Company also agreed that, on failure to negotiate or sell said bonds in twelve months, in sufficient sums for the completion of the road, the bonds and stock should be returned to plaintiff after ninety days notice. 500 shares of the par value of $100 each were delivered to the National Land Improvement and Manufacturing Company under said agreement. Drafts were made and accepted but were not paid. The bonds were not sold, and demand was made for a return of the stock.

On the 15th of May, 1893, the defendant discounted, for the National Land Improvement and Manufacturing Company, a note made by said National Land Improvement and Manufacturing Company, dated 13th May, 1893, payable thirty days after date to J. H. Steinmeyer or order, for the sum of $8,000, with interest - after maturity at the rate of eight per cent, per annum. The note was executed by J. H. Steinmeyer, as president, and by J. N. Mallonee, as secretary and treasurer of the National Land Improvement and Manufacturing Company, and was endorsed by J. H. Steinmeyer. The note was secured by two scripts, Nos. 13 and 17, for 100'shares each of the stock of said railroad company, which were delivered to the defendant when the note was discounted. The certificates of stock are sealed with the company’s seal, signed by Wm. H. Mauldin, president and treasurer, and each certifies that the National Land Improvement and Manufacturing Company is entitled to 100 shares in the capital stock of the Hampton and Branchville Railroad and Lumber Company. The certificates are both endorsed by the company. The proceeds of the discount were placed to the credit of the National Rand Improvement and Manufacturing Company upon the books of the defendant, and were checked against at once. The amount placed to the credit of the National Rand Improvement and Manufacturing Company, with about $1,900 of exchange sold, went to pay checks of the National Rand Improvement and Manufacturing Company for $1,717.62, notes of said company for $5,812.87, a note of Steinmeyer Number Company for $447.34, and a note of Mallonee & Co. for $2,000, all of which notes so taken up were held by the defendant. The National Rand Improvement and Manufacturing Company is insolvent, and is now in the hands of a receiver.

The Circuit Judge held that the defendant was an “innocent bona fide holder for value without notice,” of the said stock, and ordered that the plaintiff do transfer upon its books to the said defendant the said 200 shares of stock,, arid that the complaint be dismissed.

The plaintiff appeals upon several exceptions, which,, however, will not be considered separately, as they raise practically but the single question, whether the defendant was an “innocent bona fide holder for value without notice.”

Certificates of stock are not negotiable. Maybin v. Kirby, 4 Rich. Eq., 105; Hammond v. Hastings, 134 U. S., 401; 10 S. C. R., 727; Union Bank v. Laird, 2 Wheat., 390.

Although they are not negotiable, a bo7ia fide vendee for valuable consideration without notice will be protected. State Bank v. Cox & Co., 11 Rich. Eq., 344; Fraser & Dill v. Charleston, 11 S. C., 486. We do not question the principles announced in these cases, but they are not applicable to this case.

The act chartering the plaintiff (20 Statutes, 1169,) is a public act, and, therefore, all persons are chargeable with notice of its provisions. 23 Am. & Eng. Enc., 696; Hammond v. Hastings, 134 U. S., 401. Section 8 of said act provides: “That the stock of said company may be transferred in such manner and form as may be directed by the by-laws of said company,” &c. It seems that a man of ordinary prudence, having notice of such provision, would have made inquiry as to the manner and form in which the by-laws directed that transfers of stock should be made. Section 9 of said act provides: “No subscription to capital stock of this company shall be valid unless the sum of $10 per share be paid thereon at the time of subscribing; and that if any stockholder shall fail to pay the instalment required of him, on his share or shares, by the president and the majority of the stockholders, within one month after the call for same, it shall be lawful for said president and directors to sell at public auction, and convey to the purchaser, the share or shares of said stockholder so failing or refusing, giving fifteen days notice of time and place of sale. Any purchaser of said stock shall be subject to the same rules and regulations as the original owner, and no sales by the original owner of the stock or his assigns shall relieve the original owner from his obligations to the company to pa}' the whole of his subscription.” If the defendant, having notice of these provisions, had made inquiry, it would also have had notice that the National Land Improvement and Manufacturing Company did not have the right to make the transfer of the certificates of stock as aforesaid. As there certainly was enough to have put the defendant on inquiry, it is chargeable with notice of such facts, as the inquiry, if pursued with due diligence, would have disclosed. Black v. Childs, 14 S. C., 312; Aultman v. Utsey, 34 S. C., 561. Lhe defendant is, therefore, not a bona fide holder without notice.

For these reasons, I concur in the opinion of Mr. Justice Pope.

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Dissenting Opinion

Mr. Chief Justice McIvek,

dissenting. I dissent, but will not delay the filing of this opinion by taking the time necessary to write out my views.