100 F. 676 | U.S. Circuit Court for the District of New Hampshire | 1900
Sitting as judge and jury in this case, I first make my findings of fact, and then rule upon questions of law:
I find, as a matter of fact, that the defendant on June 9, 1894, owned 100 shares, of the par value of §50 each, in the Western 'Investment, Loan & Trust Company, a Kansas corporation; that on that day the trust company, as a matter of fact, was insolvent; and that the defendant, suspecting the financial condition of the trust company was unsound, and apprehending litigation, and having in mind the stockholder’s statutory liability, without consideration transferred the stock to Frederick E. Kingsbury, his grandson, who was a young man, but not responsible, in the sense of having any considerable, if any, attachable property. And, so far as it is a question of fact, I find that the transfer was not such a bona fide transfer as to relieve the defendant from his individual liability as a stockholder, if he were otherwise liable. 1 also find that a new certificate was issued to Kingsbury, and that the transfer of such stock was noted on the stub of the certificate book, but that such transfer was not noted on the transfer book provided by the company for such purpose, and that the neglect to so enter it was the neglect of the bank officers, and not of the defendant. I find, as a matter of fact, upon the evidence contained in the record, and upon the arguments, that Ward’s claim against the trust company was upon a guaranty, given upon a valuable consideration, of the payment of certain promissory notes from one third party to another, and was not a guaranty of the payment of securities negotiated by the company. I find that the plaintiff brought an action at law in the district court of Smith county, in the state of Kansas, against the trust company, on December 2d, 1892, on these guaranties, by a writ served upon the president of said corporation, and on March, 1893, recovered judgment thereon against the 'company for §9,787.50, with interest at 12 per cent.; and, as shown in the record, on December 11, 1893, 84,924.75 was paid thereon, and on September 14, 1896, an execution issued for the balance, and was returned wholly unsatisfied, as shown by the officer’s return printed in the record. I also find that the trust company was not a railway, religious, or charitable corporation, and the business which the corporation was authorized to do was "to buy and sell personal property, including stocks, bonds, bills, notes, real and chattel mortgages, and dioses in action of every kind and description, and to transact the business of a loan and trust company”; that some time after the organization of the company, and before the defendant became a stockholder, the directors thereof resolved "that the president and secretary of the company be, and they hereby are, authorized to guaranty the payment of all securities negotiated by the company, by indorsing upon any such security one of the following forms of a guaranty,” — and the resolution of the corporation and the forms of guar
. Upon the findings as to the transfer, I rule that it was not such a bona fide and complete transfer as to relieve the stockholder from his individual contractual liability, and the defendant excepts. Still, upon all the foregoing findings, I order judgment for the defendant. The relations of the parties are contractual, and the term "dues,” in the Kansas constitution, ought to be accepted as applying only to claims resulting from the legitimate and contemplated business of the corporation or company, such as arise in respect to transactions within, the reasonable scope of the business contemplated; and, as between. the creditor and the stockholder, they should not be extended to claims which arise from the transaction of unauthorized business. While, under paragraph 1192 of the General Statutes of Kansas, providing the remedy, a judgment against the corporation may be accepted, under proper limitations, as conclusive, in a proceeding against the stockholder as to the amount and the liability of the company upon claims in respect to transactions within the contemplation of the constitution and of the parties to the contract, it should not be accepted as conclusive upon the question of the nature and character, of the, claims, for the reason that paragraph 1392 is only intended to give a remedy .to the creditor in respect to the kind of claims contemplated by the constitution. The judgment on this ground is accepted as,conclusive, because it relates to a corporate affair, and because the stockholder’s interests are supposed to be represented by the officers of. the bank in respect to affairs within the scope of its contemplated, legitimate, and authorized transactions. It would be going too far to say that the stockholder should be concluded as to the question whether the foundation and nature of the claim were within the fair ■intendment of the constitutional provision and the contract between the parties, upon the ground pf representation, for the reason that such a question is not one which, in the natural and usual course of litigation between the bank and the creditor, would be presented or adjudicated.. The contract, under the constitution, is between the creditor and the stockholder, and the bank, in a proceeding against it