Killen v. Barnes

106 Wis. 546 | Wis. | 1900

MaRsham,, J.

It is considered that the complaint and record disclose very clearly that the primary purpose of this action was to fully wind up the banking corporation by enforcing all liabilities of directors and stockholders which existed in its favor at the time it suspended business, and, as germane thereto, to enforce the personal liability of stockholders, statutory and otherwise, so far as the same can be enforced in an administrative action of this kind.

The purely personal wrong to plaintiff’s assignor, in that by false pretenses on the part of John W. Barnes as one of the directors of the bank, as to the safety of the institution, such assignor was induced to deposit his money therein to his damage, was not a proper subject for litigation in this case, though the findings cover that field. We apprehend that the pleader did not intend to join an action for deceit resulting in damage to plaintiff’s assignor, with an action in •equity to wind up the corporation and enforce, for the benefit of its creditors, the liabilities of stockholders and directors, which are the proper subjects of equity jurisdiction in such a proceeding, though the case seems to have drifted into that field. Obviously, the cause of action for deceit, if there were one, which accrued to Blake, was a purely personal right to damages to be enforced in an action at law. No other person had any interest in such cause of action. If persons other than Barnes were responsible for the deceit because they were joined with him in the administration of the bank affairs, he has no.right of action against them for contribution. So there is no reason whatever for bringing that into the administrative suit, the sole legitimate purpose •of which is to wind up the corporation and to enforce the liabilities of the defendants in which the creditors are entitled to participate on a basis of equality as a single class, or as ■classes upon a basis of equality between the members of each •class, and to adjust the equities between defendants who may be liable to respond for the benefit of such creditors.

Having reached the conclusion indicated,— that plaintiff did not purpose in this action to unite and enforce a cause of action for deceit, perpetrated upon Blake by Barnes or Barnes and his associate directors, with a cause of action in ■equity to remedy, for the benefit of the creditors, the wrongs to the corporation and enforce the liabilities of stockholders to creditors properly cognizable in such a proceeding, for the purpose referred to; and that no purely personal action can be enforced in this case,— we shall not enter upon any extended discussion of the subject of whether the evidence discloses the existence of the personal tort cause of action, or •express any opinion as to whether the decision of the trial court was right on that subject, except what may incidentally be said in separating the treatment of that cause of •action in the findings of the court and the arguments of counsel from the legitimate subjects of this action, and in -discussing those questions that pertain to such subjects.

Gores v. Day, 99 Wis. 276, and South Bend C. P. Co. v. George C. Crill Co. 97 Wis. 230, are cited as authority that a creditor may maintain such an action as this. They are in point so far as relates to what we say was the real purpose of the pleader here when the complaint was framed. Each of those cases was instituted to enforce wrongs to the corporation, and it was held that the right to maintain it, in the circumstances stated in the complaint, was expressly given by secs. 3237, 3239, N. S. 1878.

While, as indicated, if a cause of action accrued to Blake against Barnes, it has no proper place in this case and was only incidentally brought to the notice of the court by the evidentiary facts regarding the proper subjects of the equitable action, it is considered that the decision of the trial court was right, that it was a purely personal right of Blake and did not pass to plaintiff by the attempted assignment thereof.

The learned counsel for appellant refer to sec. 4258, Stats. 1898, to sustain their contention that the Blake claim, considered as sounding in tort for damages, was assignable, and refer in the same connection to secs. 3216, 3237,3239, and other sections of the statutes, none of which refer to the cause of action of a depositor in a bank against one or more of'its officers for deceit.

Sec. 4253 provides that “actions for damages done to real and personal estate” shall survive. It was construed in John V. Farwell Co. v. Wolf, 96 Wis. 10, and the decision there rendered was recently affirmed in Lane v. Frawley, 102 Wis. 373. As said in the Farwell Case, the statute was taken from Massachusetts, where, long prior to its adoption here, it was construed as referring to injuries to specific property in a physical sense only, that is, to an actual destruction or injury .to or loss of specific property, and not as including mere “ cheats and frauds resulting in pecuniary loss.” Such construction was a part of the statute when adopted here the same as if expressed therein in the most unmistakable language. Suck is the universal rule. Draper v. Emerson, 22 Wis. 147; Westcott v. Miller, 12 Wis. 454; Dutcher v. Dutcher, 39 Wis. 651; Pomeroy v. Pomeroy, 93 Wis. 262; State ex rel. Rogers v. Wheeler, 97 Wis. 96.

The wording of sec. 1253 is quite different from the Hew York statute, where actions for damages for conspiracies to defraud and for deceit are held to be assignable. Here “actions for damages done to real and personal estate ” survive; there, “actions for all wrongs done to the property, rights or interests of another ” survive. The latter language, we would say.independent of authority, clearly covers actions for deceit, and the Hew York court so held at an early day. Haight v. Hayt, 19 N. Y. 464.

The language of our statute was first construed in Massachusetts in 1827, in Holmes v. Moore, 5 Pick. 257, where it was said that it was adopted in that state from Stat. 1 Edw. III. ch. 7; that the construction given to it by the English courts was that it gives to the executor or administrator of an estate an action of trespass for goods owned by the deceased in his lifetime, carried away; and, by an equitable construction, for any wrong done to such property, notwithstanding it may not have been carried away; and that the statute is confined to injuries to personal estate in the sense held by the courts where it originated. Later, in 1837, in Read v. Hatch, 19 Pick. 47, an action for damages for inducing plaintiff, by fraudulent representations respecting the solvency of another, to sell property to such other — a case which, in its facts, presented the identical question here under consideration — the court, speaking by Chief Justice Shaw, said: “ It is contended that a false representation, by which one is induced to part with his property ... to an insolvent person, by means of which he is in danger of losing it, is a damage done to him in respect to his personal property. But we are of opinion that this would be a forced construction and not conformable to the intent of the statute. If this were the true construction, then every injury by which one should be prevented from pecuniary gain, or subjected to pecuniary loss, would, directly or indirectly, be a damage to his personal property. Rut we are of opinion that it must have a more limited construction, and be confined to damages done to some specific personal estate, of which one may be the owner. A mere fraud or cheat, by which one sustains a pecuniary loss, cannot be regarded as a damage done to personal estate.” Eor further authorities on the subject see Cutting v. Tower, 14 Gray, 183; Leggate v. Moulton, 115 Mass. 552; Cutter v. Hamlen, 147 Mass. 471; Whiteside v. Brawley, 152 Mass. 133; Warren v. Para R. S. Co. 166 Mass. 97; Houghton v. Butler, 166 Mass. 547.

The foregoing effectually disposes of the claim that John W. Barnes was liable to plaintiff for fraudulently holding out to the public that the State Rank of Manitowoc was safe, whereby Elake was induced to deposit his money therein. Whether he incurred a liability to the corporation for breach of official duty -which may be enforced in this action is quite another question and one that does.not appear to have been distinctly passed upon by the trial judge in his conclusions of law or definitely presented by counsel for appellant on this appeal sepai’ate from the claim that a liability accrued to Blake personally against Bcwnes, or Barnes and his associates, for damages for deceit. Obviously, official misconduct of Barnes to the injury of the corporation was primarily a wrong to it, which, if enforced at all, must be enforced in the right of the corporation. We find nothing in the learned judge’s conclusions of law about such liability, though the findings of fact called for a decision on that important subject. We should say that the learned counsel for appellant also, in their presentation of the appeal, failed to distinguish-bet ween injuries directly inflicted to a person dealing with a corporation, through the deceit of one or more of its officers, for which such person may sue such officer or officers at law for bis damages, but which right does not survive and is not assignable, and negligent or fraudulent conduct of officers of a corporation rendering them primarily liable to it for the loss thereby caused to such corporation. Authorities are cited, holding that the latter liability survives, to sustain the contention that the former is assignable. The one is a liability for misconduct in a fiduciary capacity, resulting, in a sense, in a destruction or loss of specific property of the principal, and is assignable as coming within the fair meaning of the survival statute in respect to an injury to personal estate. Warren v. Para R. S. Co. 166 Mass. 97. Consistent with that, such liabilities of cor-^-porate officers are deemed to be assets of the corporation and pass to its assignee or receiver, if one be appointed, in a general conveyance of the corporate assets to him. Hurlbut v. Marshall, 62 Wis. 590.

With what has been said we will pass the subject of whether the facts found disclose a wrong to the State Bank of Manitowoc for which Barnes and his associate officers are responsible and which the plaintiff may enforce in this action in the right of the corporation, till the other questions involved in this appeal are disposed of.

The foregoing covers the first three assignments of error, except in so far as they relate to the question reserved. Whatever Barnes did or neglected to do which was an actionable wrong to plaintifli’s assignor, in that he was thereby induced to deposit his money in the bank, constituted misrepresentations of material facts when he knew or ought to have known the truth, and actionable purely on the ground •of deceit. The following cases cited by the learned counsel are actions at law, by an injured party, directly against the wrongdoers to redress such wrongs: Seale v. Baker, 70 Tex. 289; Tate v. Bates, 118 N. C. 287; Stephens v. Overstolz, 43 Fed. Rep. 465; Gerner v. Mosher, 58 Neb. 135.

There are numerous cases where the distinction has not been clearly recognized, if at all, between a wrrong to a depositor of a bank committed by its officers, for which they are personally liable directly to such depositor on the ground of deceit, and a wrong by such officers to the corporation for which they are liable to such corporation and through it to the creditors. Delano v. Case, 121 Ill. 247, is a good specimen of such cases. It would take too much space to review such cases and to try to bring harmony out of the confusion that would be disclosed, though we venture to say that in most instances that proceed on the ground of negligence the purpose will be found to have been to enforce a liability in the right of the corporation. Such is Hodges v. New England S. Co. 1 R. I. 312, often found cited in the books. The confusion on this subject is quite well illustrated by the fact that the Hodges Case, a plain action to enforce the right of the corporation because its proper officers failed to do their duty in that regard, is cited in United Society of Shakers v. Underwood, 9 Bush, 609, and other authorities upon which the Delano Case is grounded, to support the decisions there made, that officers of a bank may be held liable directly to depositors for losses of the bank to the damage of depositors, on the ground of negligence and fraud in performance of their duties to the corporation. Other cases to support the direct action of a creditor against an officer for damages to the former, because of the fraud or negligence or other actionable wrong of the latter, are based on statutes, as, for instance, Stephens v. Overstolz, 43 Fed. Rep. 465.

The real principle upon which the eases are probably grounded, which hold that the creditors may sue directors to enforce a personal right against them, is that they are quasi trustees for such creditors under the trust-fund doctrine, so called, which, as will be hereafter shown, has no place in our system. The directors of a corporation are trustees for it and bear no other relation to its creditors than the agent of an individual to his creditors.

The fourth exception to the decision of the trial court is to the holding that John W. Barnes became the owner of the claims of creditors, other than Blake, by the purchase thereof, it being insisted by appellant that the transaction between Barnes and such creditors was a composition of their claims between them and the holder of the trust fund as such. We find nothing in the record to support such contention. The written proposition made by Barnes to the creditors was that he, individually, would purchase their claims. We find no indication in it that any party to the transaction did or could have supposed that a composition of claims for the benefit of the debtor, or the representative of the debtor, as holder of the trust fund, was contemplated. The proposition cohtained this language: “Subject to the conditions and at the times hereinafter stated, I will, in my individual capacity, pay, or cause to be paid, the following sums, being the costs and expenses incurred by the petitioning creditors in the proceedings hereinafter referred to; ” and “ To each creditor of said bank whose claim has been proved and admitted and who shall accept this proposition, a sum sufficient, with dividends, if any already received by him thereon, to make sixty-two per cent, of the amount proved and admitted. Upon making payment to any creditor as aforesaid, he shall assign his claim to me or to such person as I may direct.” The creditors were required to sign a paper agreeing to assign their claims to Barnes personally or to his appointee. It was stipulated that the sums payable under the proposition should be due and payable from Barnes, clearly indicating that the purchase of the claims was to be a purely personal affair. The form of the assignment of the claims, prepared and submitted as a part of the proposal to the creditors, showed that the claims were to be assigned to Barnes personally or to his appointee. True, the words “ compromise and settlement ” were used several times in the papers; but it seems clear that they were not "used in the sense of a composition and settlement of the claims as between the debtor and the creditors, or an ex-tinguishment of the claims as regards the trust fund, but in the sense of a settlement of such claims as the creditors had against Barnes personally; that is, in consideration of Barnes making the creditors good for their claims against the debtor to the amount of sixty-two per cent, thereof, they agreed to transfer such claims to him and release him from all personal liability. In no other sense can the language of the proposition, clearly suggesting a personal purchase of the claims, be harmonized with the words u settlement and compromise ” so as to give effect to all the language used-in the proposal papers, within the reasonable meaning thereof and consistent with the circumstances under which the-transaction occurred.

Oases cited to our attention, where a person acted as an agent for the debtor in buying up the claims against him, holding that the transaction extinguished the claims, such as Bowen v. Holly, 38 Vt. 574, do not apply to the facts found by the court and abundantly sustained by the evidence. It is essential to a composition that the arrangement should be between the debtor and the creditor, or him who stands for the debtor in the transaction. There must-be more than one creditor, for it is the mutual agreement between creditors to make concessions to the debtor that forms the consideration to uphold the composition contract. 6 Am. & Eng. Ency. of Law (2d ed.), 311, and cases cited. It will be readily seen that there was no mutual agreement here to make concessions to the debtor or to the trust fund, but a mutual agreement of creditors to sell their claims to Barnes in consideration of his personal promise to pay therefor, as indicated in his proposition.

"What has been said on the subject last treated might have been omitted from this opinion because of the conclusions reached on other branches of the case, but as it may be important in the final winding up of the assignment proceedings, it is thought best to pass upon the question presented.

The next assignment of error combines three propositions: (a) That the contribution of $2,000 made by Barnes to the trust fund should be considered as paid upon his liability to the corporation on his stock instead of on his stock liability to creditors; (b) that the proceedings in the assignment do not constitute an action pending to enforce the subscription liability, which should operate to abate this action subsequently commenced to enforce such liability; (c) that Barnes is liable in this action, either on his stock liability to the corporation or his stock liability to the creditors. The trial court decided in the negative as to each of such propositions, and as to the first and last of them, at least, we fail to discover any reasonable ground to say that such decision is wrong.

It is elementary that unpaid balances on subscriptions to the capital stock of a corporation are a part of its assets for the payment of its liabilities in winding up proceedings, the same as any other property possessed by it, and that a general assignment by such corporation for tbe benefit of its creditors vests the title to such unpaid balances in the as-signee, and the acceptance by him of the trust carries with it the duty to collect such balances so far as necessary to pay all the creditors of the corporation and the expenses of executing the trust. 5 Thomp. Corp. § 6469, and cases cited in the notes; Hatch v. Dana, 101 U. S. 205; Cook, Stock (3d ed.), § 208. It necessarily follows that creditors of a corporation that has made an assignment cannot obtain the benefit of its stockholders’ liabilities on unpaid subscriptions in any other way than by becoming parties to the assignment and working out their equities through the assignee.

As to whether the $2,000 contributed by Barnes to the trust fund should be applied on his stock liability to creditors and be held to extinguish such liability, none but an affirmative answer can be given, based on reason and sound legal principles. No other creditor had any right to an individual enforcement of such liability. They were all entitled to participate in the benefits of it in proportion to their claims against the corporation, in a proceeding adapted to that end. Coleman v. White, 14 Wis. 700; Gianella v. Bigelow, 96 Wis. 185; Booth v. Dear, 96 Wis. 516. Barnes paid into the trust fund all that could have been collected for the benefit of the creditors on account of his stock liability.' All creditors were parties to the assignment proceedings, and received the benefit of Barnes’s contribution to the trust fund in just the proportion they were entitled by law to participate in his stock liability. No court of equity could have done more for the creditors on account of such liability than Barnes did voluntarily and by their co-operation. However irregular the proceedings were by means of which the creditors received the benefit of Ba/rnes’s personal liability to them, the fact that they received and retained it precludes them from raising any question in a court of equity as to the means by which it reached their hands. The court cannot arbitrarily say, on an appeal to conscience, that money which Barnes paid into the trust fund for one purpose, which has been fully executed for the benefit of creditors, shall be applied to some other purpose. Nothing can be plainer than that.

In view of the foregoing, the question of whether the assignment proceedings constitute an action to recover Barnes’s subscription liability which is effectual to abate this action if it could otherwise be maintained, is not material, though upon what principle it can be so considered is not perceived. The assignment proceeding is not an action in any sense. The assignee could not enforce collection of a subscription liability in the assignment proceedings as the owner of it in trust for the creditors. He could enforce it only by action. Such liabilities are mere choses in action in the hands of the assignee, which must be collected, if at all, in adversary proceedings by a-n action of some sort.

Further complaint is made because the trial court decided that the liabilities created by secs. 1755, 1765, Stats. 1898, were not assignable. Ve are not able to discover that the court so decided as to sec. 1755. Such section requires stockholders in a corporation, who receive any refund of money paid in for the capital stock owned by them respectively, to return the same to the corporation for the payment to that extent of all debts owing by the corporation at the time the money was received by such stockholders. The court held that such section does not apply to this case because all of the indebtedness of the bank which was owing at the time the assessment notes were returned has been paid or conveyed to defendant Barnes, who makes no claim under it.

The court did hold that if the right of action accrued against Barnes in favor of Blake under sec. 1765, Stats. 1898,, by reason of Barnes being officially a party to the payment of a dividend, such liability was not assignable. That section renders directors who violate its provisions jointly and severally liable to all the creditors of the corporation then existing. The decision of the trial court was that a claim under such section is not assignable because the liability is penal. A right of action to recover a penalty does not survive at the common law. That is elementary, and certainly there is no statute covering the subject.

Now as to whether a liability under sec. 1765 is penal in its character, and whether the general rule that a right of action to enforce such a statute does not survive and therefore is not assignable, there is much conflict. Counsel for appellant cite cases to support the negative of the proposition (Fitzgerald v. Weidenbeck, 76 Fed. Rep. 695; Stephens v. Overstolz, 43 Fed. Rep. 465), while cases supporting the affirmative are cited by respondent. Stokes v. Stickney, 96 N. Y. 323; Carr v. Rischer, 119 N. Y. 117; Merchants’ Bank v. Bliss, 35 N. Y. 412; to which many others may be added. Wiles v. Suydam, 64 N. Y. 173; Easterly v. Barber, 65 N. Y. 252; Veeder v. Baker, 83 N. Y. 156; Victor W. P. & F. M. Mfg. Co. v. Beecher, 97 N. Y. 651.

We will not incumber this opinion with a discussion of the cases cited, and the many others that might be cited, touching the subject of whether such a statute as the one under consideration is penal', considered with reference to the assignability of claims under it. If we test the statute by the familiar rule, — that a statute which imposes a forfeiture or a'penalty for transgressing its provisions or doing a thing prohibited (Potter’s Dwarris, Stats. 74; 18 Am. & Eng. Ency. of Law, 270) is penal in character, and that if the penalty or forfeiture does not go to the public but to a person individually interested directly in the matter to some extent, the recovery for his benefit not being limited in any respect by the injury sustained by him, showing that the primary purpose of the statute is public, it is nevertheless penal,— we shall have no difficulty in reaching a right conclusion. i

Under the statute in question a violation of its provisions, resulting in damages to the creditors of the corporation in such a trifling amount as not to be appreciable, may nevertheless result in the guilty party being liable directly to such creditors for all of their claims.

The reasoning of the cases holding that such a statute is purely remedial in character, and that the liability under it is a property right that may pass by assignment, seems to overlook the fact that the primary purpose of the legislation is public and that the extraordinary liability visited upon /the transgressor, without regard to the actual damages suffered by the individuals either in their primary or secondary capacity, is punishment for the wrong done, pure and simple; that such being the primary purpose of the statute the mere fact that the punishment inures to the benefit of a particular class of individuals instead of to the state, does not make the statute remedial and the liability under it an indebtedness to the creditor, or' incident to an indebtedness of the corporation to him. What is the primary purpose of the statute ? That is the question. If that is .public, the liability of a person for violating it to be mulcted in a sum having no reference whatever to the loss caused to creditors thereby, cannot, it would seem, be reasonably said to be other than a penalty, merely because the beneficiaries of the liability are private persons. We recognize the fact that there is high authority against this rule, but it is in accordance ivith what we deem to be the weight of authority and the better reasoning.

Our conclusion is that the statute in question, sec. 1165, Stats. 1898, is penal in character, and that a liability under it is not assignable. That construction has no application whatever to the statutory liabilities of stockholders to creditors, which are contractual in character, or the statutory liability of officers of corporations for damages sustained by them by official misconduct of their officers and directors.

The principles here applied have heretofore received the sanction of this court. We could not reach a different conclusion as to the law under consideration without overruling Cotter v. Plumer, 72 Wis. 476. The law there considered was sec. 4269, E. S. 1878, fixing the measure of damages “in all actions to recover the possession or value of logs, timber or lumber wrongfully cut upon the land of the plaintiff or to recover damages for such trespass,” at “ the highest market value of such logs, timber or lumber, in whatsoever place, shape or condition, manufactured or unmanufactured, the same shall have been, at any time before the trial, while in the possession of the trespasser or any purchaser from him with notice.” It was held that the statutory rule of damages was penal in character, and that a claim to its benefits will not survive the death of the wrongdoer. The only element in the statute that led to such conclusion was that which gives to the injured party a sum far in excess of his actual damages attributable to the wrong. The primary purpose of the statute, however, manifestly was to discourage the wrongful cutting of timber by punishing the wrongdoer for the benefit of the injured party. •

There is left to be considered the question of whether the facts disclosed by the evidence show official misconduct of the officers of the State Bank of Manitowoc, to its injury, which may be redressed in this action. That branch of the case seems to have been considered by the trial court only in respect to direct injuries to creditors by corporate officers, remediable in an action in the right of the former as quasi cestuis que trustent of the latter. The court said there was a species of agency between the creditors of a corporation and its directors, the relationship between them being that of quasi trustees; that a violation of the duties of such relationship is the subject of a direct action by the creditors against the directors. There are some authorities that support that view. They prevail in jurisdictions that uphold the trust-fund doctrine, so called, as regards the property of a corporation, in that it is held in trust by the directors of the corporation or the corporation for the benefit of its creditors. That doctrine has very little, if any, place in our sy'stem.

The idea that officers of a corporation are in any sense trustees of its property for its creditors has been quite recently considered in this court and disapproved in Slack v. N. W. Nat. Bank, 103 Wis. 57, where the following language from the opinion of the court in Hollins v. Brierfield C. & I. Co. 150 U. S. 371, was quoted and approved as stating the correct rule On the subject: “The officers of a corporation act in a fiduciary capacity in respect to its property in their hands, and may be called to account for fraud, or sometimes even mere mismanagement, in respect thereto; but, as between itself and its creditors, the corporation is simply a debtor, and does not hold its property in trust .or subject to a lien in their favor in any other sense than does an individual debtor.” So if, by the negligence or fraud of the officers of the corporation, its assets to some extent were lost, the liabilities to make good such loss were assets of the corporation and passed by the assignment to Barnes for the benefit of its creditors. Thomp. Corp. §§ 4121, 4122; Movius v. Lee, 30 Fed. Rep. 298; Howe v. Barney, 45 Fed. Rep. 668. Nevertheless a creditor may maintain an action to enforce such liabilities m the right of the corporation or of the person in whom such right is vested, if the necessities of the case so regv,ire.

Sec. 3237, Stats. 1898, provides that the circuit court shall have jurisdiction over directors, managers, trustees, and other officers of corporations, to order and compel payment by them to the corporation whom they represent, and to its creditors, of all sums of money and of the value of all property which they may have acquired to themselves or transferred to others, or may have lost or wasted by any violation of their duties as such directors, managers, trustees, or other officers; and sec. 3239 provides that the jurisdiction conferred by sec. 3237 “ shall be exercised in an action prosecuted by the attorney general in the name of the state, or by any creditor of such corporation, or by any director, trustee, or officer thereof having a general superintendence of its concerns, as the case may require or as the court may direct.” It is plain that the creditor has not the absolute right to maintain such an action. "Where the title to the claim for damages is in an assignee for the benefit of creditors, he is the person who should invoke the jurisdiction of the court, and a creditor cannot take his place in the matter unless the necessities of the case so require or the court so direct; and the facts in that regard, according to the settled practice, must be made to appear on the face of the complaint. The right to maintain such an action was sustained in South Bend C. P. Co. v. George C. Cribb Co. 97 Wis. 230, and Gores v. Day, 99 Wis. 276; Gager v. Bank of Edgerton, 101 Wis. 593; Gager v. Marsden, 101 Wis. 598. The complaint in each case showed that the person in whom the title to the cause of action was vested was hostile to its enforcement, therefore the creditor was permitted to stand in the place of such hostile party and enforce the claim in his right. The same situation appears in this case.

So, though the plaintiff has no title to the cause of action to recover, of the officers of the corporation, damages caused to it by their official misconduct, if there be any actionable wrong in that regard he may properly stand in the place of the assignee, Barnes, who has such title, under sec. 3239, Stats. 1898.

Much labor was expended by the learned counsel for the appellant on the subject of the degree of care that the directors of a corporation are bound to exercise in the conduct of its affairs, at the peril of being responsible for loss to the ■corporation chargeable to their negligence. If the question were an open one in this state it would be profitable to consider it and discuss at some length the numerous authorities cited to our attention. It is by no means certain that the standard of care with which directors of banks should be charged is put too high in any of such cases. However, the standard for this state is deemed to be too firmly established to admit of discussion or to be changed by the action of the ■court alone. In Worth Hudson B. & L. Asso. v. Childs, 82 Wis. 460, the rule for this state, based in the main on Briggs v. Spaulding, 141 U. S. 132, was expressed thus: “As they [directors] render their services gratuitously, they are not to be held to the degree of responsibility of bailees for hire.” They are not, in the absence of any element of positive misfeasance, and solely on the ground of passive negligence, to be held liable, unless their negligence is gross or they are fairly subject to the imputation of want of good faith.” ■“ The degree of care they are bound to exercise is that which ■ordinarily diligent and prudent men would exercise under similar circumstances in respect to a like gratuitous employment, regard being had to the usages of business and the circumstances of each particular case; they are not liable, in the absence of fraud or intentional breach of trust, for negligence, mistakes of judgment, and bad management in making investments on doubtful or insufficient security. "Where they have not profited personally by their bad management, or appropriated any of the property of the corporation to their own use, courts of equity treat them with indulgence.” The learned counsel for appellant is quite justified in saying that that is as liberal a rule, at least, if not the most liberal, that can be found in the books. However, it is considered that the doctrine of stare decisis requires that such rule shall be adhered to. Therefore, by it the conduct of the respondent and his associates in this case must be tested; though it must be remembered that such rule has no application to that branch of this case regarding the charge that, by the fraudulent conduct of respondent and his associates, Blake was induced to deposit his money in the bank.

In view of what has been said we are unable to see wherein respondent was negligent to the injury of the corporation. There is no evidence of active, deliberate fraud on his part, no evidence of intentional breach of trust, no evidence that any loss accrued to the corporation through the making of loans from any other cause, at least, than mere bad judgment. We are now of course speaking, of what occurred after the formation of the new bank and have no reference whatever to the defalcations which occurred during the existence of the national bank and prior to the connection ■of Barnes therewith. In fact there is no evidence that any money was actually lost by the corporation by any loans that were not considered good, and properly so considered, when made, no evidence that any of the assets of the corporation were appropriated by the respondent or by any of his associate officers in the state bank, and no evidence that any of the infirmities which caused its final downfall could have been discovered by Barnes, by any examination which he could reasonably have made or that might have been made by the other officers, and remedied. If we say he should have discovered the fact that there.was a loss on the Howell paper of $38,00.0, covered by his brother’s note for that amount, there is no evidence to impeach the finding that such loss could not have been reasonably prevented after the formation of the new bank, or that the note of O. C. Barnes would reasonably have been considered a good asset prior to the suspension of such bank; or, if the fact were otherwise, that any greater sum could reasonably have been recovered of O. C. Barnes or any of the other stockholders on their stock subscription liability, which the loss on the Howell paper developed, than was collected or is now collectible. As to O. C. Barnes, it appears that his property was all turned over to the bank and that some $12,000 has been realized therefrom. As to the other two stockholders who were actively engaged in conducting the bank, it satisfactorily appears that they were insolvent so that nothing could have been collected from them. As to stockholder Pritchard, his liability was released as to the plaintiff’s claim, by plaintiff; and as to the other two stockholders, Barnes and Armsby, the interest of plaintiff in their stock subscription liability is trifling in amount and can be amply protected in the assignment proceedings. He has no sufficient equity to call for the maintenance of this action, to realize on his small interest in the stockholders’ liability of defendants Barnes and Armsby; and as there is no other creditor interested in- such maintenance, the trial court properly reached the conclusion that the bill should be dismissed.

There are some questions discussed in the able briefs of the learned counsel for appellant which do not require to be noticed in this opinion, in view of the conclusions reached upon the main points in the case. Each question in any way affecting the appeal, not specifically mentioned, has been the subject of careful study and investigation. The judgment appealed from must be affirmed.

By the Court.— So ordered.

Case Details

Case Name: Killen v. Barnes

Court Name: Wisconsin Supreme Court

Date Published: Apr 27, 1900

Citation: 106 Wis. 546

Court Abbreviation: Wis.