32 Mo. App. 330 | Mo. Ct. App. | 1888
delivered the opinion of the court.
The questions arising in this case are similar to those discussed and decided at the present term in the case of Schierenberg v. Stephens, ante, p. 314. The pleadings herein are substantially the same as in that case, except that it is not averred in defendant’s answer, that the advertisements by the bank stating that its capital stock had been increased were made with the plaintiff’s knowledge and consent. The defendant’s answer was not demurred to as in the Schierenterg case, but the
The case was tried as a proceeding in equity and the court upon the hearing, rendered judgment against the receiver.
It is needless to set out the evidence in detail, since it is conceded by counsel for the receiver that the allegations of plaintiff’s petition have been, substantiated by proof, and that unless the facts set up by way of affirmative defense are legally sufficient to debar plaintiff’s recovery he is entitled to judgment. We have held in the Schierenberg case that the affirmative plea was insufficient in law, which of itself disposes of this appeal in respondent’s favor.
There was nothing in the proof adduced to enlarge the claim made in the receiver’s answer, or to give any additional strength to the claim of an equitable estoppel on plaintiff’s part. On the contrary it appeared affirmatively that the plaintiff was never recognized as a stockholder by the bank. The bank kept an account of the aggregate amounts, paid on account of the proposed increase of stock under the heading “ Trust Fund, Increase of Capital,” and kept a detailed account in a separate book under the heading, “ Subscription paid, Increase of Capital Stock.” It affirmatively appeared that although the bank reported from time to time the amounts paid in on those subscriptions to the comptroller of the currency, it never reported its capital stock as exceeding three hundred .thousand dollars, but reported the excess as “paid in and not certified to.” It was not shown that the plaintiff knew anything of the advertisements and circulars of the bank which stated that the capital stock had been increased, and it appeared affirmatively that the comptroller of the currency took no action touching the actual increase and never issued any certificate approving it, but in his last official report preceding the suspension of the bank stated its capital stock to be three hundred thousand dollars only.
It will be thus seen that the judgment of the trial court herein was warranted regardless even of the fact
Judgment affirmed.
