206 F. 452 | 2d Cir. | 1913
Briefly stated the facts are these: In May, 1908, plaintiff bought these shares from the bank, upon representations made to him by its officers with reference to its financial condition, the amount of its surplus earnings, and other material matters concerning its affairs. It is averred that these representations were false, and known to be false by the bank officers when made; that they were made with intent to deceive complainant and to induce him to purchase: that he was ignorant of the affairs of the bank, and bought the shares because he believed the false representations and relied upon them; that the stock was represented to be stock not yet originally issued, but was in fact stock then owned by the vice president of the bank.
The bank suspended business in March, 1911, a.receiver was appointed in April, 1911, and on September 11, 1911, an assessment of $100 a share upon its capital stock was levied by the Comptroller of the Currency. The receiver brought an action against complainant to recover his proportion of such assessment. In that action the latter sought to raise the issues of fraud herein alleged as a defense; but, since the federal practice does not allow equitable defenses in actions at law, judgment was entered against him. One of the prayers for relief is that all further proceedings to collect said judgment be perpetually enjoined.
Since no opinion was filed in, the District Court, we are unable to determine upon what theory it was that the demurrer to the whole bill was sustained and judgment thereon entered against complainant. So far as wé can see, the allegations of the amended bill are sufficiently specific, positive, and clear to make out a case of sale induced by false representations of the agents of the bank to which complainant paid his money and from which he received the stock. Upon proof of the facts alleged he would ordinarily be entitled to rescind the contract of purchase, to return his stock, and demand the purchase price or actual damages. The circumstance that the bank failed and went into the hands of a receiver before- complainant discovered the fraudj is no reason why such suit may not be brought against the hank, although it makes it necessary to add the receiver as a party defendant. The Supreme Court has expressly held that the only way in which a person, situated as complainant is, “could effectually raise the question of liability as a shareholder, arising from frauds committed by the bank or its officers before its suspension whereby he was induced to become a shareholder, is by a suit -in equity against the bank and the receiver.” Lantry v. Wallace, 182 U. S. 549, 21 Sup. Ct. 883, 45 L. Ed. 1218.
Something is said in the appellee’s brief about complainant’s laches and estoppel, hut those are matters which can best be considered when the facts are all proved. It seems to us, therefore, that the demurrer should have been overruled. In thus deciding, however, we are not to be understood as intimating any opinion as to whether complainant could be discharged from his liability as a shareholder if the facts stated in his'bill were fully proved. The Supreme Court expressly reserv
The decree is reversed, with directions to overrule the demurrer with leave to answer.
