115 F. 770 | 9th Cir. | 1902
In this action, commenced March 26, 1898, the plaintiff seeks to recover from the defendant Wade, and other directors of the Portland Savings Bank of Portland, Or., the sum of $9,718.33, alleged by plaintiff to have been deposited by him in that bank on May 10, 1894. The action is based upon a statute of Oregon, which, so far as necessary to be here quoted, is as follows :
“Sec. 3231. If the directors of a corporation declare and pay dividends when the corporation is insolvent, or which renders it insolvent, or diminishes the amount of its capital stock, such directors shall be jointly and severally liable for the debts of the corporation then existing or incurred while they remain in office. * * *” 2 Hill’s Ann. Laws Or. p. 1433.
The complaint, in addition to other matters, which need not be referred to, alleges that on March 13, 1893, the defendants, while acting as a board of directors of the Portland Savings Bank of Oregon, declared a dividend of 2 per cent, on its capital stock; that this dividend was paid April 1, 1893; and that the bank was insolvent when this dividend was declared, and also when it was paid. The defendant Wade was the only one of the defendants served with process. In the answer filed by him he put in issue many of the averments of the complaint, and also pleaded, as an affirmative defense, that the action is barred by the statute of limitations, for the reason that the same did not accrue to the plaintiff within three years next prior to its commencement; and in this connection it is alleged in the answer that plaintiff deposited with the Portland Savings Bank, on February 11, 1890, the sum ®f $10,000, for which the bank issued its certificate of deposit, payable in one year from its date, with interest at the rate of 6 per cent, per annum; that the interest on this certificate was paid, and on March 12, 1891, the plaintiff surrendered the certificate to the bank, taking a new certificate in place of the one surrendered, and for the same amount; that the indebtedness created by the original deposit was thus renewed from year to year; that the fourth certificate issued to plaintiff for that purpose was dated on March 22, 1893, and was for the sum of $10,-000, payable February 11, 1894, “with like interest as the other certificates and for the same time”; that on April 19, 1894, $1,000 was paid on the certificate issued March 22, 1893, and on May 10, 1894, this last-named certificate was surrendered by plaintiff, and he received
1. The action is one to recover a statutory penalty. Patterson v. Thompson (C. C.) 86 Fed. 85; Bank v. Bliss, 35 N. Y. 412; Gregory, v. Bank, 3 Colo. 332, 25 Am. Rep. 760; Wiles v. Suydam, 64 N. Y. 173. An action upon a statute for a penalty or forfeiture must, under the law of Oregon, be brought within three years after the cause of action accrues. 1 Hill’s Ann. Laws Or. p. 136. In order, therefore, to pass upon the question which is presented by the ruling of the circuit court, denying plaintiff’s motion to strike out that part of the answer to which reference has been made, it becomes necessary—
The statute provides that directors of a corporation who declare and pay dividends when the corporation is insolvent “shall be jointly and severally liable for the debts of the corporation then existing or incurred while they remain in office.” It will be observed that the statute does not say, in express terms, whether the action it gives shall accrue when the illegal dividends are paid, or only upon the maturity of the creditor’s debt, if such debt is not then due; but we think the reasonable construction of its language is that the creditor’s cause of action thereunder accrues upon the maturity of his debt. The directors who participate in the payment of an illegal dividend are simply made jointly and severally liable for the debts of the corporation then existing or incurred while they remain in office; that is to say, liable to the same extent as if they had been parties to the contracts by which the debts of the corporation were incurred. They are thus made directly liable for the performance of such contracts of the corporation, and, as the time when performance is to be made is an essential part of the obligation of a contract, the directors cannot, under the statute, be called upon to perform before the time when performance can be required from the corporation. Now, as we have seen, it was alleged in that part of the answer which the court refused to strike out that upon April i, 1893, the date when the illegal dividends were paid, the Portland Savings Bank was indebted to the plaintiff on account of the deposit made by him February 11, 1890; that such indebtedness was at that time evidenced by a certificate of deposit for the sum of $10,000, dated March 22, 1893, payable on February 11, 1894; and it was further alleged that the certificate sued on was issued to plaintiff upon the surrender of the one of March 22, 1893, and for the balance due upon such certificate. Upon this state of facts, under the construction which we have placed upon the statute, plaintiff’s cause of action against the defendant accrued on February xi, 1894, the date when the indebtedness of the Portland Savings Bank to him, existing on April 1, 1893, became due, unless in giving the certificate sued on the bank incurred a new indebtedness to the plaintiff, and that it did not is, we think, clear upon principle and established by decided cases. Iron Co. v. Walker, 76 N. Y. 521; Patterson v. Thompson (C. C.) 86 Fed. 85; Lee v. Hollister (D. C.) 5 Fed. 752. The indebtedness which this certificate represents is none other than the balance due to the plaintiff from the bank on account of the deposit made by him on February 11, 1890, and the certificate when delivered was in legal effect a promise to pay that indebtedness upon the date therein named, and its delivery to plaintiff was not the creation of a new debt. As was said in Iron Co. v. Walker, 76 N. Y. 521:
“The giving up of one promise to pay on taking another from the same party is but a continuation of the promse, and the giving of further time to perform it. As the first did not pay the debt, the other does not redeem the promise of the first, nor itself pay the debt.”
“Tlie statute operates upon the remedy, and the omission of the creditor to pursue it cannot stop its running. The liability of the trustee was imposed by statute, and the benefit and suit therefor are limited to the creditor as the one aggrieved. In such a case, when the statute of limitations begins to run, nothing subsequent will stop it.”
Our conclusion is that the circuit court did not err in denying plaintiff’s motion to strike out the averments of the answer showing that the certificate sued on was not issued on account of any indebtedness incurred at its date, but in fact for the balance then due on account of the deposit made by plaintiff February 11, 1890. These facts were properly set out in the answer in support of the defendant’s plea of the statute of limitations.
2. The circuit court did not err in granting defendant’s motion to strike out that part of plaintiff’s reply to which we have already referred. The allegation therein that plaintiff had no knowledge of the facts constituting his cause of action until on or about March 25, 1898, was immaterial. The same also may be said of the further averment that plaintiff on May 10, 1894, deposited with the Portland Savings Bank the certificate of March 22, 1893, “and that said bank then and there received,” and said plaintiff “then and there so deposited, said certificate as a new deposit, together with the sum of $7:18.33, and that said deposits were new deposits, * * * and that said bank then and there acknowledged in writing said deposit, and did then and there issue in writing its certificate of deposit therefor, as alleged in plaintiff’s complaint.” This cannot be construed as a direct and specific reply to any of the new matter contained in the
3. The defendant’s motion for judgment upon the pleadings was properly granted. Section 94, 1 Hill’s Ann. Haws Or., provides:
“Every material allegation of the complaint, not specifically controverted by the answer, and every material allegation of new matter in the answer, not specifically controverted by the reply, shall, for the purpose of the action, be taken as true. * * *”
4. We do not deem it necessary to discuss the other assignments of error in relation to the refusal of the court to strike out that part of the answer setting out an agreement alleged to have been made by plaintiff with the Portland Savings Bank, on April 10, 1894, concerning the payment of the amount which the bank then owed on account of the deposit of February 11, 1890, and the action of the court in striking from the reply allegations in relation to this same agreement, and tending to show fraud and deceit upon the part of the defendants. The judgment does not depend upon the correctness of the rulings of the court in respect to these matters.
The judgment is right, and must be affirmed, because the plaintiff did not in his reply specifically controvert the facts alleged in the answer, showing that his cause of action is barred by the statute of limitations. Judgment affirmed.