Parsons v. Treadwell

50 N.H. 356 | N.H. | 1870

Poster, J.

I. The plaintiffs claim to recover interest on the sum of $282.86, the same being that portion of the liabilities of the bank spe-. cifically enumerated in the contract as due to Jenness and Hatch at the date of the contract. This sum stood upon the books of the bank as a deposit account, and the money was used by the bank, as in the case of the money of other depositors.

At the date of the contract the situation of this sum of money was known and understood by all the parties, and it was specifically named in the contract among the liabilities of the bank. No agreement was incorporated in the contract, nor is any extraneous agreement suggested whereby this liability is placed upon any other footing than that of an ordinary deposit, subject at any time to the draft of the depositors. We suppose it to be well understood that, unless by reason of some special agreement, banks do not pay interest on ordinary deposits. As soon as the money deposited is entered to the credit of the depositor, it is subject to his call or order at any time. Such deposits then become immediately the property of the bank, and are mingled with the other funds and property of the bank. Morse on Banks and Banking 26, and notes. It was at the option of the depositors to withdraw the deposit at any time, or to stipulate for interest if they should allow it to remain; and the fact that they have made no express'stipulation contrary to the usage and custom of banks, either before or at the time of the execution of the contract, is a very clear indication that no unusual provision was contemplated by either party with relation to this deposit. We are therefore of the opinion that this claim for interest should be disallowed.

II.- With regard to the other collections of money due to the bank at the date of the contract, but not included in the estimate of assets incorporated in the contract, a different rule prevails. By the terms of the contract, the plaintiffs’ proportion of these collections, deducting expenses, was to be paid by the defendants “ forthwith.” They were paid to the defendants without the knowledge of the plaintiffs (except in the case of the amount thus paid by Jenness), and were placed to the credit of the plaintiffs as an ordinary deposit. But the defendants could not make the plaintiffs involuntary depositors, so to speak, in this manner. It was their duty, since by the terms of the contract this money was to be paid “ forthwith,” to notify the plaintiffs of its receipt, in order that they might avail themselves of the money or the use of it. Instead of this, they mingled it with their common funds, and derived a profit from its use for which they are liable as trustees, like administrators, guardians, and other agents, to account by payment of the usual rate of interest accruing and received by them. Dodge v. Perkins, 9 Pick. 368; Griswold v. Chandler, 5 N. H. 497; Stearns v. Brown, 1 Pick. 531; Wendell v. French, 19 N. H. 213; Stark v. Gamble, 43 N. H. 468; Peirce v. Rowe, 1 N. H. 182.

III. But these considerations do not apply to the sums of money, whatever they may be, collected by Jenness himself and by him paid to the defendants, with regard to which, he having full notice and opportunity to demand and control his proportion, the ordinary rule governing bank deposits must apply.

IV. The plaintiffs also claim to recover of the defendants their respective shares of the interest accrued upon the sums of $72,117.00 left in the hands of the defendants to redeem the circulation, and of $79,389.06 left in their hands to pay depositors, from the date of the contract up to the time when the money was actually paid out for these purposes; and also to recover their proportion of the amount of the bills remaining not redeemed on the 27th June, 1869, at which time the defendants finally wound up the affairs of the bank, including the bills reissued, which were never returned.

The defendants admit their- liability to pay the plaintiffs’ share of the bills never redeemed, with interest', except those reissued and not subsequently redeemed, but deny their obligation to pay any other interest claimed by the plaintiffs.

The claim of the plaintiffs is founded upon the following provision of the contract: “And the parties of the second part do further promise and agree, to and with the parties of the first part, that if hereafter it shall appear, at or before the expiration of the charter of said bank and the winding up of the same, that a less amount than $79,389.06 shall be demanded and paid to persons now depositors in said bank, for or on- account of their existing deposits, or if the amount of bills of said bank hereafter, and up to the time when by law the liability of the corporation to pay the same shall cease, presented fo,r payment and actually paid by said bank, together with the bills now on hand, shall be less than the aforesaid sum of $103,064.00 [the total amount of bills issued], then, at the time when the liability of said bank to pay such liabilities shall have ceased and ended, or within • thirty days thereafter, the parties of the second part will pay to the parties of the first part, or their representatives severally, their share of the difference between the amount of said deposits and of said bills in circulation as above estimated and stated, and the amounts which shall be found due and be actually paid to depositors and bill holders, in the proportion of the number of the respective shares of the parties of the first part, so that the parties of the first part will receive precisely the same proportion of said difference as if they had continued to be holders of their said several shares of said stock, with interest from the date hereof.”

The plaintiffs, on the 2d May, 1864, undertook to sell out all their interest in the “ Mechanics and Traders Bank,” and to retire from all participation in the management of the affairs of the concern, and to dispose of and relinquish all their interest in its subsequent profits or losses.

The precise value of the interests which they desired thus to dispose of was not then capable of ascertainment, on account of the uncertainty of the amount which would be finally due to bill holders and depositors, and which could only be ascertained upon and at the time of the final closing up of all the accounts and affairs of the institution* The object of the written contract then was, as expressed in its preamble, to enable the plaintiff’s to sell and the defendants to purchase the capital stock of the plaintiffs “ at a price as nearly equal as may be to the just value of said stock if the said bank were this day closed and the affairs thereof wound up and settled, leaving the party of the second part [the defendants] henceforth to carry on and manage said bank at their own discretion.”

This preamble is the key to the interpretation of the whole contract. And applying this test to the interpretation of the clause in the agreement now under consideration, we regard the expressions — “ if it shall appear, at or before the expiration of the charter of the bank,”&c., “ that a less amount than $79,389.06 shall be demanded and paid to persons now depositors; ” and “ if the amount of bills of said bank, hereafter and up to the time when by law the liability of the corporation to pay the same shall cease” shall be less than the specified sum, “ then at the time when the liability of said bank to pay such liabilities shall have ceased and ended,” &c., the defendants will pay, — as meaning this (in connection with the remainder of the clause, which need not be repeated), — that whenever, either at the expiration of the time limited by the charter for winding up the affairs of the bank, or at any earlier period that should be ascertained, which at the date of the contract was incapable of ascertainment, then the plaintiffs should be entitled to “ their share of the difference,” &c., just as if that share had been ascertained on the 2d May, 1864, the date of the contract and sale, with interest upon that sum from that time.

This whole provision is plainly inserted solely because it was impossible to ascertain, on the 2d May, 1864, what was the true value of the plaintiffs’ stock. If it had been capable of ascertainment, it is quite clear that instead of this provision the contract would have provided that the defendants should pay a certain specified sum, being the plaintiffs’ share of “ the difference between the amount of said deposits and of said bills,” and the amounts which are now (not “ shall be” “found”), “ due to depositors and bill holders,” with interest from the date of the contract, upon a sum then ascertained and specified.

Such is the amount to which the plaintiffs were entitled at the date of the contract. The only difficulty was, that the amount was not and could not be then ascertained. Being ascertained subsequently, the plaintiffs, by the reception of interest from the 2d May, 1864, upon that subsequently ascertained sum, do, according to the terms of the contract, “ receive precisely the same proportion of said difference as if they had continued to be holders of their said several shares of said stock.”

The language of this part of the contract, without any aid, even, from the key of interpretation provided by the preamble, would seem to be too clear for any serious questioning. It is not interest upon the gross amount of all the sums remaining in the defendants hands, subject to the call of bill holders and depositors, that the plaintiffs are entitled to demand, but their share of the difference between the amount of deposits and bills in circulation, and the amount which they would ultimately be required to pay in order to discharge the liabilities of the bank, on account thereof; and the words “ as if they had continued holders of the stock” have reference, by the express terms of the contract, to the “ difference,” and not the gross amount.

The plaintiffs suggest that equity requires the adoption of their construction of the contract in this particular. We do not so regard the matter. The plaintiffs complain that they have not realized all the profits which they might have gained from the business of the bank if they had not sold out. But we cannot lose sight of the fact that they did sell out on the 2d May, 1864, and the only reason that everything was not then concluded and paid between the parties was the difficulty about the unascertained value, not at a future time, but then, of the plaintiffs’ stock ; that the object of all parties was to wind up the plaintiffs’ connection .with and interest in the bank then, upon a basis then existing, definite and certain, but unascertained. When the plaintiffs sold their stock and relinquished their part in the management of the concerns of the bank, they parted likewise with their interest in all its subsequent profits and losses. It could not have been contemplated by the purchasers that, as a result of the arrangement on the 2nd May, 1864, the plaintiffs were to be relieved of all participation thenceforth in the expenses, responsibility, risks, and labor of the management of the concern, while the purchasers were to assume all those risks, expenses, labors, and responsibilities, and also divide all the profits with the plaintiffs. The plaintiffs, by the contract, were to receive the full value of the stoele and the interest which they sold, and it is to be presumed that that value was ascertained with reference to the then existing and not the subsequent fortune or misfortune, loss or profit, of the concern from which the plaintiffs withdrew. A party who, without being deceived, has sold out his interest in a partnership or other business relation, should not be heard to lament that he has lost the profits which his successors have made.

This seems to us the obvious and natural view of the rights, obligations, and general situation of the parties under the contract. If the plaintiffs’ construction had been intended, the contract “ drawn with some nicety” (as the plaintiffs contend), should have more clearly expressed the plaintiffs’ understanding of its provisions.

Y. The plaintiffs also claim to- recover their proportion of “ the sum of about $256.00 — the larger part of which is due to said Hatch as clerk of the U. S. Court, and all which is still due to depositors living in Portsmouth.”

This claim, with interest, the plaintiffs are entitled to recover. The legal liability of the defendants to the original depositors of this money having ceased by the limitation of four years from the expiration of their charter, as provided by § 3, chap. 37 of the Act of June 28,1843, this sum is a portion of the profits contemplated by the parties in their contract, to be ascertained upon the final winding up of the affairs of the bank, and as such is due to these plaintiffs under the contract.

YI. The plaintiffs claim to recover their proportion of the amount remaining unpaid of the bills reissued by the defendants, after their first redemption, with interest.

This claim cannot be sustained. These bills, being once redeemed, became the property of the defendants, and were reissued by them as the property and upon the credit of the bank, in the ordinary course of its business. So far, and so far only, as they can be distinguished from new issues with which they may have been mingled by the defendants, they are not subject to the plaintiffs’ claim.

YII. It appears from the case that “ about the first of July, 1869,” the plaintiffs made a demand on the defendants of payment of the «urns due the plaintiffs under the contract, and they claim interest from that date upon all sums then due.

Upon such sums as the plaintiffs are entitled to recover, in accordance with the foregoing considerations, interest should be computed and allowed from the date of their demand. McIlvaine v. Wilkins, 12 N. H. 474, and cases there cited.

An auditor may be appointed to ascertain the amount due the several plaintiffs, upon the basis of this decision.