198 Wis. 306 | Wis. | 1929
Lead Opinion
The following opinion was filed March 5, 1929:
A number of propositions were argued here in briefs and upon the oral argument which in the view we take of the case it will not be necessary for us to discuss or consider although they were properly argued and presented. Sec. 221.42 provides:
“Such liability [double liability] shall continue for six months after any transfer of stock, as to the affairs of the bank at the time and prior to the date of the transfer.”
Sec. 221.43 provides:
“The shares of stock of an incorporated bank shall be deemed personal property, and shall be transferred on the books of the bank in such manner as the by-laws thereof may direct, and no transfer of stock shall be valid while the bank is under notice to make good the impairment of its capital, as provided in section 220.07, nor until such impairment shall have been made good.”
It appears that one P. Hovden was cashier of the bank and the defendant undertook to sell and dispose of his stock to the said Hovden. The stock was duly transferred to Hovden by indorsing the certificates and delivering them to Hovden more than six months prior to the time when the banking commissioner took possession of the bank. In payment for the $2,000 stock Hovden gave his note for $500 to the defendant and was to pay the outstanding assessment.
Conceding that the transfer was in good faith and although the stock had not in fact been surrendered and a new certificate issued but nevertheless the transaction was complete under the rule laid down in Cousins v. Flertzheim, 182 Wis. 275, 196 N. W. 250, we come to the more serious
“That the assessment of one Joseph Day, who owned ten shares of stock in said bank on August 24, 1926, was paid by a charge of $1,000 against his savings account which was credited to the capital stock account by P. Hovden on October 16, 1926, without any express authority from said Joseph Day to make such charge. That said' Joseph Day did not learn of said charge until a day or two after July 5, 1927. That after learning of said charge, so made for the purpose of paying his portion of said assessment, he took no action with reference thereto until some time in September, 1927, when he filed a claim in the receivership proceedings at the suggestion of the plaintiff, for the full amount shown to his credit on his pass-book on October 16, 1926, to wit, $1,469.60.”
It appears from the testimony of Day, who was a witness upon the trial, that he had no knowledge or notice of the making of the assessment of August, 1926, until after the commissioner took over the bank, and, as found by the court, he never authorized the cashier to charge his account with the amount of the assessment.
The defendant makes the following claims respecting this transaction: (1st) that the Wheeler State Rank was authorized to charge its depositors any sum due and owing to it, under the general rule that a bank may charge against an
“It [the bank] reserves to itself the right to deduct from deposits credited in this book any counterclaims which it may hold against the original depositor or the owner of the book.”
(3d) That Day’s failure more promptly to repudiate the transaction amounted to an acceptance of it on his part or at least to an affirmance or ratification of the act of the cashier. If the liability of Day under sec. 220.07 is that of a debtor to a creditor, defendant’s contention would undoubtedly be sound. The provisions of that section, which are set out in the margin, are peculiar.
We had occasion to consider this statute in Bank of Prentice v. Beyer, 189 Wis. 253, 207 N. W. 144, and this court there held upon the authority of Finney v. Guy, 106 Wis. 256, 82 N. W. 595, decided nearly thirty years ago, that the liability under this section of the statute was not personal and that the sole liability of the stockholder was that of having his stock sold away from him. It is not a question of remedy, but a question of the nature of the stockholder’s liability.
While it is true that Finney v. Guy, supra, does not deal with the precise question dealt with here, the principles discussed and laid down in that case are controlling in cases of this class and have been generally so regarded. No change in the statute has ever been sought and we feel obliged to adhere to our prior decision. Such being the case, there was no liability of the stockholder, Day, upon which the defunct bank could have brought an action. The relation of creditor
The conclusion we have reached upon this branch of the case makes it unnecessary for us to consider and determine whether or not the other assessments were paid, questions involved in much doubt and uncertainty.
By the Court. — The judgment appealed from is reversed, and cause remanded with directions to enter judgment for the plaintiff as prayed in the complaint.
The following opinion was filed April 30, 1929:
“Section 220.07. Whenever the commissioner of banking shall become satisfied that the capital of any bank is impaired or reduced below the amount required by law or the articles of incorporation, or below the amount certified to the commissioner of banking as paid in, he shall have the power to require such bank under his hand and seal of office to make good such impairment or deficiency within sixty days after the date of such requisition. In any case, where the capital of a bank shall have become impaired or reduced below the amount required by law or the articles of incorporation, the board of directors of such bank shall have the power to make a pro rata assessment upon all of the stock of said bank to make good such deficiency, and may provide that the amount of such deficiency shall be due and payable at a time to be fixed by such board of directors, which time shall be not less than ten days after notice of said assessment; provided, that notice to stockholders residing in another state shall be given by registered mail and a return receipt demanded. If any stockholder shall fail or neglect to pay the amount of the assessment against his stock for ten days after the same shall have become so due and payable, the directors of such bank may offer said stock for sale, and sell the same at public sale upon ten days’ notice to be given by posting copies of such notice of sale in five public places in the town, village or city where such bank is located. Upon such sale, the purchaser shall forthwith pay the amount of the assessment against said stock. The amount received from the sale of said stock, less the cost and expenses of such sale, shall be paid to the original owner of such stock.”
Rehearing
On rehearing.
The defendant upon this motion complains because all of the questions argued in the case were not disposed of in the opinion, and to some extent it may be said that this complaint is justified. We are again urged to hold that under the rule laid down in Cousins v. Flertzheim, 182
Sec. 221.43, referred to but not quoted, provides:
“No transfer of stock shall be valid while the bank is under notice to make good the impairment of its capital, as provided in section 220.07, nor until such impairment shall have been made good.”
The court was of the view that having held that the impairment of the capital .had not been made good, no valid transfer of the stock could be made however complete the transaction; that as.to the statute, no stockholder could rely as against creditors upon statements made by the officers of the bank to the effect that such impairment had been made good. The statute would be of little value if it might be in effect set aside or held inapplicable because of statements made by corrupt and designing officers.
Motion for rehearing denied, without costs.