73 F. 136 | 5th Cir. | 1896
Joel W. Foster, receiver of the Cheyenne National Bank of Wyoming, brought suit in the district
Rev. St. U. S. § 5139: “The capital stock of each association shall be divided into shares of one hundred dollars each, and bo deemed personal property, and transferable, oil the books oi: the association, in such manner as may be prescribed in tiie by-laws, or articles of the association. Every person becoming a shareholder, by such transfer, shall in proportion to his shares succeed to all the rights and liabilities of the prior holder of such shares, and no change shall be made in the articles of association by which the rights, temedles or security of the existing creditors of the association shall be impaired.”
Rev. St. U. S. § 5151: “The shareholders of every national banking association shall be held individually responsible equally and ratably, and not for another, for all contracts, debts and engagements of such association to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested therein. * * *” (Remainder of the article omitted as it has no bearing on the questions raised by the assignments.)
In addition to said sections of law we quote the following section:? of the said bank’s by-laws:
“Sec. 17. The stock of the bank shall be assignable and transferable only on the books of the bank, subject to the restrictions and provisions of the hanking laws, and a transfer book shall be provided, in which all assignments and transfers of stock shall be made.
“Sec. 18. The transfer of stock shall not be suspended preparatory to the declara lion of dividends, and, unless an agreement to the contrary shall be expressed in the assignment, dividends shall be paid equally to tbe stockholders in whose name the stock shall stand at the date of the declaration of dividends.
“See. 19. Certificates of stock assigned by the president and cashier may be issued to a shareholder, and the certificate shall state upon the face thereof that the stock is transferable only upon the books of the bank, in person, or by attorney; and when tbe stock is transferred the certificate thereof shall be relumed to the bank, and canceled, and new certificate issued.”
The evidence shows the order of the United States comptroller directing the said assessment, etc., on the shares of all stockholders of the bank; that Snyder’s name appears in the hank’s book showing the names of the stockholders. Aside from the bank’s books, and the sections of the laws, etc., quoted supra, the only oral testimony offered was by Snyder for himself, if being admitted that the cashier, Collins, and the president of the bank, are dead. Plaintiff in error’s testimony shows substantially as follows: That Snyder, in order to obtain money to pay for the 50 shares subscribed to the bank, borrowed §5,000 on November 19, 1885, from Collins, then the cashier of the said bank; that Snyder sold his said share of stock to Collins individually, on July 6, 1886, for $5,378.83; that he had collected no dividends thereon; that at the time Snyder became the owner of said shares he indorsed the certificate over to Collins, and left it with him as collateral security for the $5,000 which he borrowed from Collins; that when Snyder sold his shares of stock to Collins he and Collins were both in the bank’s office, find Collins at the time was the cashier as well as a director of the bank; that Snyder’s
On this trial, all the evidence having been submitted to the jury, the court directed a verdict for the plaintiff. In aid of his bills of exception, the plaintiff in error has attached thereto all of said evidence. The assignments of error — such of them as we have not included in our ruling herein adversely — are as to the refusal of tlie court to give certain instructions to the jury. Such refused requests for charges are set out in the following assignments:
Eighth assignment of error: “Said district court erred in not giving the following special charge aslced by this plaintiff in error: ‘That because the defendant’s name may appear as a stockholder in the bank on the stock book, or transfer book of stock, does not make him absolutely liable in this case, because there are circumstances which, if existing, and you believe from the evidence that they do exist, would excuse him from liability. So I charge you that if you believe from all the evidence before you that J. W. Snyder, the defendant, owned the stock in controversy, and before the failure of the hank, in good faith, honestly, and for value, did sell to J. W. Collins said stock, aud did. in connection therewith, execute to said J. W. Collins an assignment of said stock in words as set forth on the back of the certificates of stock in use by said bank, a copy of which has been read in evidence before you, and that he, in connection with said assignment, did what he could, and what a reasonably cautious and prudent business man would, do, or would have done, under all the circumstances of the case in evidence, to have said sale (if made) entered on the book of transfer, to relieve himself from all future liability, because of the once ownership of said stock, then defendant would not be liable in this ease, and you will find a verdict for defendant.’ ”
Ninth assignment of error: “Said district court erred in not giving the following charge, asked by plaintiff in error: ‘If the jury believe from all the facts and circumstances in evidence that defendant, J. W. Snyder, was the owner of certificate of stock No. 20 for 50 shares of stock for $100 each in the Cheyenne National Bank, and that on the 6th day of July, 1SS0, he. iu good faith, bona fide, for value, sold said stock to W. J. Collins, and that he, defendant Snyder, did all that a reasonably prudent man would do or would have done, under all the facts and circumstances before you, to have said sale re*139 corded or carried into the stock transfer hook, then he would not be and is not liable in this case, and you will find a verdict for defendant.’ ”
Tenth assignment of error: “Said district court erred in refusing to give the following instructions, asked by the plaintiff in error: ‘If the jury believe from all the evidence In this case that the defendant, J. W. Snyder, did all that a reasonably cautious and prudent man would do to have the transfer or certificate of stock No. 20 in the Cheyenne National Bank from him to J. W. Collins (if he made a sale thereof) to have the transfer thereof noted and perpetuated on the book of stock transfer, then you will find a verdict for defendant.’ ”
The defendant, in error contends that the facts shown in the record bring the case under the rule laid down in Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788, from which we quote as follows:
“As to the 50 shares.of stock sold by Comstock to Holmes, September 23,1873, we think the conclusion cannot be resisted that the transaction was made in. contemplation of the insolvency of the bank, and, although both parties may have believed that the bank would ultimately be able to pay all of its debts notwithstanding this transaction, we think that, as against creditors, it was fraudulent in law, and to that extent Comstoc-li is chargeable as a shareholder. The sale of 50 shares in February, 1873, and of the other 50 shares in June, 3873, there is no reason to suppose were not made in entire good faith, and without any expectation on the part of the parties of the insolvency of the bank. Notwithstanding that, Comstock continued to be, upon the books oí the bank, the owner of these shares until September 23d and September 24th, when they were respectively transferred. By section 5.139 of the Revised Statutes those persons only have the rights and liabilities of stockholders who appear to be such as are registered on the books ox the association, the stock being transferable only in that way. No pt'rson becomes a shareholder, subject to such liabilities, and succeeding to such rights, except by such transfer. Until such transfer, the prior holder Is the stockholder for all purposes of the lax?. It follows, therefore, that Charles Comstock, in respect to the shares sold by him in February and June, 1873, was the statutory owner on the 23(1 day of September, 1873. His liability as such stockholder is the same as if he had that day sold and transferred the stock to Ira Holmes; but such a salo and transfer could only have been made that day by Comstock, who was himself a director, in contemplation and actual knowledge of tlio suspension of the bank. It would operate as a fraud on the creditors. — an effect which the law will not permit. The case is not within the rule laid down in Whitney v. Butler, 118 U. S. 655, 7 Sup. Ct. 61. Here there is no proof, as there was in that case, of the delivery of the certificates to the bank, and the power of attorney authorizing its transfer, with a request to do so, made at the time of the transaction. The delivery was to Holmes, not as president, but as vendee. We are therefore constrained to hold that the decree below, in charging Comstock with liability as the owner of 150 shares, was not erroneous.”
The plaintiff in error urges us to apply the rule of law announced in Whitney v. Butler, 118 U. S. 655, 7 Sup. Ct. 61:
“But it will be found, upon careful examination, that in no oik; of the eases upon which these general principles have been announced, as between creditors and shareholders, does it appear that the precaution was taken, after the sale of the stock, to surrender (he certificates therefor to the bank itself, accompanied (whore such surrender was not made by the shareholder in person) by a. power of attorney, which would enable its officers to make the transfer on the register. The position of the seller in such a case is analogous to that oil a grantor of a deed deposited in the proper office to be recorded. The general rule is that the deed Is considered as recorded from the time of such deposit. 2 Washb. Real Prop. bk. 3, c. 4, par. 52. Where the seller delivers the stock certificate; and power of attorney to the buyer, relying upon the promise of the latter to have the necessary transfer made, or where the certificate and power of attorney are delivered to the bank without communicating to its officers the name of the buyer, the seller may well be hold liable as a shareholder until, at least, he shall have done all that he reasonably can do to effect a tains*140 fer on the stock register. In the case before us, the personal presence of the defendants at the bank was not required, in order to secure their release from liability as shareholders. Besides, the certificates of stock authorized them to act by attorney. Through their agents, the brokers who sold the stock, and through whom they received the money paid for it, they surrendered the certificates and power of attorney to the president of th'e hank; he receiving them with knowledge not only that defendants had parted with all title to the stock, and had been paid for it, but also that it had, been purchased at public auction by Eager. He knew equally well that the surrender of the certificates and the delivery of the power of attorney'and the certificate from the probate court ■could only have been for the purpose ot having it appear, by means of a transfer on the hooks of the hank, that Whitney’s executors were no longer shareholders. The right to have the transfer made, and thereby secure exemption from further responsibility, was secured to the defendants, both by the statute and by the by-laws' of the bank. They did all that was required by either as preliminary to such transfer. Nothing remained to he* done except for some officer of the hank to make the’necessary formal entries on its hooks. If, when the agents of defendants delivered' the certificates and power of attorney to the president of the hank, the latter had given an intimation of a purpose not to make the transfer promptly, or had avowed an intention to postpone action until a sufficient amount of stock was obtained to fill Coburn’s order, it may be that the failure of the defendants to take legal steps to compel a transfer would, in favor of the creditors of the bank, have been deemed a waiver of the right to an immediate transfer on the stock, register. But no such intimation was given; no such avowal was made. No objection was made to the power of attorney, or to the discharge of the defendants from liability. So far as the record shows, nothing was said or done by the bank’s officers to raise a doubt in the minds of the defendant’s agents that the transfer would not be made at once. It was suggested in argument that the defendants should have seen that the transfer was made. But we are not told precisely what ought to have been done to this end that was not done by them and their agents. Had anything occurred that would have justified the defendants in believing, or even in suspecting, that the transfer had not been promiitly made on the hooks of the hank, they would, perhaps, have been wanting in due diligence had they not, by inspection of the bank’s stock register, ascertained whether the proper transfer had in fact been made. But there was nothing to justify such a belief or to excite such a suspicion. Their conduct was, under all the circumstances, that of careful, prudent business men, and it would be a harsh interpretation of their acts to hold (in the language of some of the cases, when considering the general question under a different state of facts) that they allowed or permitted the name of Whitney to remain on the stock register as a shareholder. We are of opinion that, within a reasonable construction of that statute, and for all the objects intended to be accomplished by the provision imposing liability upon- shareholders for the debts of national hanks, the responsibility of the defendants must be held to have ceased upon the surrender df the certificates to the bank, and the delivery to its president of a power of attorney sufficient to effect, as that officer knew, a transfer of the stock on the hooks of the association to the purchaser.”
There seems to be no conflict in the legal principles announced in the two said cases. They are distinguishable only in their facts. It was conceded by counsel in argument that one or the other of these rules should be determinative of the facts in the pending- case. We are not advised as to the line of reasoning upon which the learned judge below directed a verdict for the defendant in error, though it appears that he applied the rule of law in Richmond v. Irons, rather than the rule laid down in Whitney v. Butler, to the facts in the pending suit. The fact which shows Snyder’s name, with his stock not transferred, on the bank books, appears to have been a sufficient foundation, in the view of the receiver, for bringing suit in this cáse, as well-as it did in the two suits cited; but neither .of the
First. The direct evidence shows: That Snyder, November 19, 1885, borrowed $5,000 from Collins with which he paid for the 50 shares held by him in said hank. .That, having indorsed over his certificate for said shares to Collins, he left the same;, so indorsed, with Collins, as security for the loan. That July 6, 188(5, in order to pay Collins the said borrowed money, Snyder sold his said shares to Collins for the same sum, with interest added. The evidence shows the said sale was made to Collins, individually, in the; bank's office, where Collins was the cashier, and one of the directors; that no fraud is even intimated against Snyder, and all of his relations as a stockholder and director in the” hank ceased with said transaction; rhat his bank book shows an entry of said sum, made therein on the day of the said sale.
Second. The direct evidence shows that while the by-laws provide that the stock of the bank shall be assignable only on the hank’s books, etc., they also declare that dividends shall be paid to the stockholders in whose mimes the stock was standing at the time the dividends were declared; and section 19 of the by-laws makes it the duty of the cashier to issue certificates to the stockholders, which shall foe transferable only on tlie books, etc., and when the stock is transferred the certificate thereof shall be returned to the bank, canceled, and new certificates issued. The evidence shows no fraud on Snyder’s part. On the contrary, it shows good faith in him at every step of his in all of his transactions with Collins and the bank. It shows that the bank, in 188(5, when Collins bought Snyder’s stock, was solvent, and remained so for nearly five years thereafter; that Snyder ceased to be a director when Collins bought his said stock, and all the dividends shown ever to have been declared on Snyder’s said shares were collected by Collins, for himself, under the said bylaws; and that Snyder, having moved into Texas, had no knowledge
At the moment when the sale by Snyder to Collins was made it appears that the said certificate was already indorsed over to Collins, presumably in keeping with the form of the certificates of the bank for such indorsements. ' It is true, the certificate, at the time of the sale, was in his hands as an individual, but it was also in his hands as the bank’s cashier, whose official duty it was, under such a state of case, to make the transfer, or cause it to be made, upon the hooks of the bank. If Snyder’s said several transactions, including the sale of the stock, had been had with the porter of the bank, instead of with Collins, who was the cashier, and all of the said several transactions had taken place in the bank’s office, obviously the law would not have imputed notice to the bank, through lhe porter, of the transaction. But suppose, in a given case, A. had sold his shares of stock in a bank to B., and the sale had taken place in the bank’s office, in the presence of the cashier, who at the time, to the knowledge of both A. and B., had in his hands and kept A.’s certificate, indorsed as it was over to B.; then add to that supposition the further facts that at the time of the said transaction the bank was solvent',and remained so for five yeard thereafter,and that the cashier is dead, and the bank, five years after said sale to B., became insolvent, and the name of A. is found in the books by the receiver thereof remaining as a stockholder of the bank’s books, — would such a state of case not fairly be controlled by the rule in the Whitney v. Butler case? Tire receiver herein is vested only with the rights of the bank against Hnyder. The law, in his interest, will not impose an absolute liability in Bnyder merely because he may have been such a stockholder at one time, or because the receiver, as in this case, found Ms name remaining in the list of stockholders in the-bank’s books. If Snyder is liable at all in this suit, it is because at the time he was sued herein he should, under the facts and law applicable thereto, be held, in the interest of the insolvent bank’s beneficiaries, as a shareholder in the said national banking association. An analysis of the facts in the pending case shows that Snyder in good faith became the owner of said shares in said bank, and that in such faith he certainly intended to cease his relations thereto as such stockholder; that Collins intended by his purchase of said stock to become the holder and owner of Snyder's said shares; that at the time of said sale to said Collins individually the said certificate Ao. 20, presumably being properly indorsed for transfer to Collins, was in and remained in the hands of the bank’s cashier, with the consent and in the knowledge of the seller, purchaser, and the bank’s
We think the transcript shows issues of fact which ought to have been submitted to the jury, and there was error in the court below in directing a verdict for the defendant in error; therefore the judgment of the district court is reversed, and a new trial granted.