163 P. 1151 | Mont. | 1917
delivered the opinion of the court.
The plaintiff, as a trading corporation whose office and principal place of business is at Billings, in Yellowstone county, through Albert S. Hanson, as its president, and from March 30, 1914, to April 7, inclusive, drew checks upon its deposit account in the defendant bank to the order of various persons to whom it was indebted, and delivered them in payment of amounts due thereon. On April 8 these several checks were presented for payment, but payment was refused and they were returned to the plaintiff. On April 11, with the apparent purpose of closing up the account with defendant and transferring it to some other institution, Hanson drew a check payable to “currency” for the whole balance claimed to be due less the amount of checks theretofore drawn, and presented it in person for payment. The defendant refused to pay this also. Plaintiff thereupon brought this action to recover the amount of the several checks and for damages, alleging wrongful refusal to pay them. Each check is made the subject of a separate cause of action; plaintiff alleging that when it was drawn and presented there was deposited with defendant, subject to check, an amount more than sufficient to pay it. Defendant, admitting that all the checks were drawn and presented for payment as alleged, denied that plaintiff had upon deposit, subject to check, a sum sufficient to pay them, or any sum whatever. A trial to a jury resulted in a verdict and judgment for defendant. Plaintiff has appealed from the judgment and an order denying its motion for a new trial.
The inquiry at the trial was whether the deposit account had been exhausted before the checks were presented. Counsel for plaintiff contend that there is no evidence to justify the finding
He and the other members of the board of directors cannot use their position for the purpose of enriching themselves at the expense of the other stockholders. They occupy a fiduciary relation to the stockholders. This imposes upon them the obligation to serve the purpose of their trust with fidelity, and forbids the doing of any act by them, or any one of them, by which the assets of the corporation are diverted to any use other than such as will serve the purpose of its organization.
In Barnes v. Smith, 48 Mont. 309, 137 Pac. 541, this court said: “There are exceptional cases in which the courts refuse to recognize the corporate entity, as distinguished from the stockholders, if the refusal of such recognition is necessary in order to get at the truth. This statement applies especially to eases in which the corporation is used as a cloak for fraud, or to enable the owner of the stock to evade personal liability or the performance of a public duty. It has application also to cases in which circuity of action would otherwise be necessary to reach an adjustment of the rights of the parties.” In that ease the plaintiff had become the owner of all the capital stock of a corporation, but continued its business through the agency of dummies selected to act according to his directions. A debt contracted in the name of the company by the dummies for the payment of which they had become sureties during the course of business was held to be in legal effect the debt of the owner of the stock, so that he could not hold his dummies for the am onot. of it though he had paid it. This case is not directly in point in its facts, but is authority for the proposition that, whenever it is necessary, the courts will look beneath the particular transaction in order to prevent the perpetration of a
If the foregoing conclusion is correct, Hanson’s authority to Price to apply the deposit as he did amounted to nothing more nor less than a payment of his personal obligation with moneys belonging to him. His verbal direction to the defendant gave it plenary authority to apply the deposit, and the contention by counsel for plaintiff that defendant must have had authority in writing is without merit.
Counsel have assigned error upon several rulings of the court in excluding evidence. We have considered the argument made in support of each of them. The rulings were correct.
Though special exceptions were taken to the giving of certain instructions and the refusal to give others, counsel have not argued them in their brief. We therefore do not deem it necessary to notice them.
The judgment and order are affirmed.
'Affirmed.
Rehearing denied April 3, 1917.