Wilson v. Merchants' Loan & Trust Co. of Chicago, 98 F. 688

Wilson v. Merchants' Loan & Trust Co. of Chicago

98 F. 688 | 7th Cir. | 1900

WOODS, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

It is urged by the defendant in error that the specifications of error call for an inquii’y into issues of fact, and present no question *691for review. Tlie response for the plaintiff in error is that the agreed statement of facts is to be treated as a special finding, on which the question arises whether the facts stated are sufficient to sustain the judgment rendered. It is well enough settled that an agreed statement of facts, on which judgment has been rendered, will be taken as the equivalent of a special finding. Supervisors v. Kinniott, 103 U. S. 554, 26 L. Ed. 486; Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; St. Louis v. Telegraph Co., 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380. “But, manifestly,” as we said in Burnham v. Railway Co., 48 U. S. App. 670, 23 C. C. A. 677, 78 Fed. 101, “it is necessary that the ultimate facts be stated, and not evidence, merely, from which the facts to be established may be in-ferable.” See, also, Mutual Reserve Fund Life Ass’n v. Curtis’ Adm’r, 56 U. S. App. 586, 29 C. C. A. 354, 85 Fed. 586. The agreement before us, to a large extent, contains a statement of ultimate facts, — • sufficient, the plaintiff in error insists, to justify a judgment in his favor, — but: it consists in part of letters written by or to the defendant in error, which, in so far as their contents are pertinent to the issues, are not conclusive, but only evidentiary.

The decisions of the supreme court touching the liability of shareholders for assessments upon the stock of national banks were reviewed, and the principles deducible from them comprehensively stated, in the recent opinion of that court in Pauly v. Loan & Trust Co., 165 U. S. 606, 17 Sup. Ct. 465, 41 L. Ed. 844, While the rule is well established “that the real owner of the shares of the stock of a national banking association may in every case be treated as a shareholder, within the meaning of section 5151” of the Revised Statutes, it is also true, as there stated, and as was decided in Anderson v. Warehouse Co., 111 U. S. 479, 4 Sup. Ct. 525, 28 L. Ed. 478, “that if one receives shares of the stock of a national banking association as collateral security to bin) for a debt due from the owner, with power of attorney authorizing him to transfer the same on the books of the association, and, being unwilling to incur the responsibilities of a shareholder as prescribed by 'the statute, causes the shares to be transferred on such books to another, under an agreement that they are to be held as security for the debt due from the real owner to his creditor, — the latter acting in good faith, and for the purpose only of securing the payment of that debt without incurring the responsibility of a slmreholder, — he (the creditor) will not, although the real owner may, be treated as a slmreh older, within the meaning of section 5151.” The facts in Anderson v. Warehouse Co. differ but little from the facts disclosed in thin record, and this case is governed by that, unless the one distinction insisted upon by the plaintiff in error must be recognized, namely, lliafc the turning of the shares in the Helena National Bank into shares of the First National Bank of Helena was effected without the consent or authority of Ashby, the pledgor, and therefore was a wrongful conversion, which made the trust company the absolute owner of the stock, and liable for the assessment upon it, notwithstanding its being taken in the name of Peterson. This proposition is subject to more 1han one objection. In the first place, if the change was made *692without Ashby’s consent or authority, it was nevertheless a matter of election on his part whether he would ratify it; and, in the second place, it is not shown by the statement of facts that the consolidation and the substitution of one stock for the other were not effected by his authority, or were not afterwards ratified by him, nor that they were not effected by the authority of, or afterwards ratified by, his assignee, Ford. Neither is it shown that the assignee, under the law, and by order of the court, and by the consent of Ashby, did not have authority to consent to the substitution. The letters show that the trust company desired Ashby’s consent, and that Edgerton did not think it likely that he would give it, but that does not prove that it was not in fact obtained. It is fairly infer-able from the letters of the assignee that before hearing from the trust company, and presumably from the beginning, he knew of the scheme of consolidation; and it may well be supposed that he approved it. The fact of subsequent consent and ratification by him is quite clear. It was alleged in the declaration, and the plaintiff in error therefore had the burden of proof, that the trust company “purchased and became the owner of 120 shares of the capital stock of the said First National Bank of Helena.” To establish that averment it was necessary to show that the original shares, confessedly held as collateral, were wrongfully converted into the new stock without the consent of the pledgor; but the fact is not so stated in the agreement, the letters and other circumstances all indicate the contrary, and the general finding of the court is conclusive of the question. The judgment below is affirmed.