Commercial Nat. Bank v. Connolly

176 F.2d 1004, 1949 U.S. App. LEXIS 3645

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 6, 1949
• Docket: No. 12329
• Status: Published

Opinions

WALLER, Circuit Judge.

The several opinions1 heretofore written render it unnecessary to restate the legal and factual issues involved or to engage in extended discussion. Consequently this opinion will merely undertake to set forth the following conclusions of the majority of the Court, en banc:²

A. The doctrine of the law of the case usually raises a disinclination on the part of an appellate court to re-examine its own prior legal pronouncements in a case, but the doctrine does not destroy its power to do so.³ Five judges of this Court, sitting en banc, have the power, and a majority has the inclination, under the special circumstances of this case, to reexamine questions decided-on a former appeal by a divided three-judge panel where several issues and much evidence appear in the second appeal that were not directly presented in the first.

B. The contract of December 3, 1932,⁴ between the Old Bank and the New was legal and binding in all of its aspects.

C. The provision in the contract whereby the New Bank -assumed all the liabilities of the Old in consideration of the transfer to the New Bank of an equal amount of Class A and B assets and the execution and delivery of a note for $1,-000,000, together with the right to receive six per cent on the daily balances of Class B assets after the reduction of such liabilities by the application of the cash assets as collected, was binding on the parties and their privies.

D. The Class A assets were accepted as cash and were immediately applied in reduction of the amount of the assumed liabilities so that throughout the period in which six per cent interest was charged on the daily balances of the Class B assets the liabilities assumed were in the exact amount of the Class B assets, and as -Class B assets were collected or transmuted into cash, the liabilities assumed were reduced accordingly so that the daily balances of Class B assets were constantly the exact equivalent of the daily balances of -the liabilities assumed and outstanding. There was, therefore, no financial difference in computing six per cent on the daily balance of Class B assets and in computing six per cent on t-he daily 'balance of assumed liabilities, and since equity should look at substance rather than form, the majority holds that the term “interest” as used in the contract was 'intended to be a charge of six per cent on the amount of the assumed and outstanding liabilities as compensation for assuming such liabilities, for servicing said accounts, for keeping the records, and for collecting and paying over to the Old Bank⁵ the rents, interest, and other revenue derived from the principal of the Class B securities, but that same, whether viewed as interest on debts assumed or as a service charge or as compensation, was not usurious.

In a consideration o-f this question it will at once appear obvious that since the New Bank was required to collect and pay to the Old Bank -the interest drawn by the Class B securities, it was essential that some arrangement be made in order for the New Bank to pay expenses and to operate without loss since over $9,000,000 of its assets were in Class B securities yielding to it no interest whatsoever other than the charge or discount of six per cent provided by the contract, and it should not be inferred, in view of the language of the contract and the construction placed on it ‘by the parties, that the New Bank would have assumed the liability, risk, and expense attendant upon fulfilling the contract without the right to retain the interest and revenue produced by the Class B securities, and with no interest or compensation whatsoever. Such a profitless operation would have impaired the New Bank’s capital very promptly, because the expense of serving thousands of depositors and their accounts totalling in excess of $9,000,000 the collection of notes, the paying of rent, taxes, and the like, cannot be met out of the fine asset of good will alone. No capable banker or sensible business man would assume $9,-000,000 of liabilities payable mainly on demand for the sole consideration of the transfer of $9,000,000 of noninterest bearing, slow-moving, unliquid securities. We take it that no security is liquid which cannot yield interest to the transferee.

The admission of counsel for the receiver in the first hearing and the final decree of the lower Court on its first hearing to the effect that there were no- legal grounds for denying the New Bank the right to receive six per cent on • the daily balances of the B assets wore correct.

E. The majority of the Court now sitting in the case is of the opinion that the A assets and the principal or body of ■the B assets, including the note of the Old Bank for $1,000,000 — totalling the exact amount of the liabilities of the Old Bank assumed by the New — were transferred to, and became the property of, the New Bank, subject to Paragraph VI of the contract as to any B assets remaining on hand after the assumed liabilities had been paid, and coupled with a right of substitution by the New Bank of any B asset for any C asset This conclusion -is the result of the following considerations:

(1) The idea of the New Bank merely becoming a gratuitous surety or guarantor for the Old Bank, whose capital was then impaired and which was then about to go into liquidation, seems entirely inconsistent with reason and sound banking practices; (2) the universal requisite for a bank to be solvent that it must own assets in an amount at least equal to its liabilities; (3) that the New Bank could not have opened for business with an assumed liability of some $14,000,000 unless it also owned assets of at least an equal value; (4) that it could not have continued in the business of handling for ¡another so large a portfolio -of assets and liabilities without interest or ¡compensation; (5) the plain wording of the contract; (6) the letters from the Chairman of the liquidating committee to the stockholders of the Old Bank; (7) reports to Comptroller of the Currency; (8) the resolution of the stockholders and directors of the Old Bank; (9) the testimony of the officials in the office of the Comptroller of the Currency; (10) the absence of any requirement in the contract that the New Bank should be required to report to the liquidators of the Old Bank as to collections made of the B assets; (11) ■the interpretations by the parties themselves; (12) the provision of the contract that Class A and B assets were to be carried on the general ledger where only assets owned by a 'bank outright are ever Carried; (13) and finally, the absence of any requirement for the New Bank to return Class A and B assets to the Old Bank except as this obligation was imposed by Par. VI of the contract on the New Bank, if unused.

These factors demonstrate conclusively that the considerations for the assumption of tho liabilities of the Old Bank by the New Bank were the transfer of the title to the Class A assets (which were the equivalent of ¡cash) and the Class B assets, with six per cent thereon but less the interest collected on the Gass B securities, and that the transaction insofar as Gass A and B assets were concerned was not merely a pledge of such assets. It was a transfer of a title absolute and unconditional as to Class A assets and defeasible under Par. VI of the contract as to- any of the B assets not consumed in discharging .the liabilities the New Bank had assumed.

F. Having reached the conclusion that the New Bank acquired the legal as well as the equitable title to Class A and Class B assets, together with the right of substitution of Class B assets for Class C, the New Bank was authorized and legally entitled to include in its capital' stock tax return to the State of Louisiana, and to take as deductions, the value of any real estate formerly belonging to the Old Bank that was included in, or substituted into a Class B asset, and rightfully carried on the general ledger account of the New Bank, and to the benefit of any savings that accrued by virtue of inclusion of said real estate, but, for .the reasons set out in Paragraph G 'below, it was not entitled to such savings on real estate in Class C held by it, and the New Bank should account to the receiver of the Old Bank for all such savings as accrued to it from the inclusion of any Class C real estate in its capital stock tax return.

G. The New Bank did not acquire, and could not acquire, under the contract, the equitable title to, Cla-ss € assets except by the substitution of Cla'ss B assets therefor as above mentioned. The contract expressly provided that these assets should not be carried on the general ledger of the New Bank. The equitable title to the Class C assets, together with the interest stipulated in the Class B and C securities, remained in the Old Bank, to which the stockholders of the Old Bank had to look for any recovery. From this it follows that Class A assets, the principal of Class B assets, and the $1,000,-000 note, so long as it was a Class B'asset or, that is, prior to such time as it became a Class C asset,⁶ were acquired by, and became the property of, the New Bank, as to which properties the contract Was one of acquisition and sale as distinguished from the agreement as to Class C assets, which was an agreement of liquidation and indemnity, and not one of purchase and sale. The contract, in respect to Class C assets, placed the New Bank in a relation of trust and confidence to the Old Bank, but such a relation inheres only collaterally, or incidentally, as to Class A and B, or only insofar as any right to indemnity out of Class C was concerned. It is obvious that if the New Bank acted fraudulently in the handling of a Class B asset so as to impair its oollectibility, any resort to Class C assets for indemnification would decrease the aggregate value of the Class C assets to be returned to the Old Bank.

We are of the opinion, from a construction of the entire contract and the purpose and intent of the parties, that Class C assets were merely pledged — subject to the right of substitution aforementioned — as indemnity or security to the New Bank against loss in the assumption of the liabilities and in payment of expenses, costs, and charges. In such a situation the law of Louisiana seems to he that a' relation of trust exists 'between the New Bank and the Old in reference to said C assets so pledged, and that the New Bank, as suoh pledgee or trustee, should use the fruits of the pledge only for the benefit of the pledgor or cestui que trust unless the contract or pledge otherwise provides. Hence it follows that such increments, fruits, or profits as derived from Class C real estate savings made in the capital stock taxes of the New Bank should have been credited to the Class C Assets Account.

H. The Court below found that the appointment of a receiver was unnecessary but that since an audit had been requested by both the New Bank and the liquidating committee of the Old Bank, and the appointment also, requested by the New Bank and the chairman of the liquidating committee of the Old Bank, the expenses of the receivership should be divided equally between the New Bank and the Old. This being a collateral attack upon, a receiver lawfully appointed by the Comptroller and recognized by the Court below and by this Court as the lawful plaintiff in this suit, we cannot accept the finding that a receivership was unnecessary, but on such collateral attack we must assume that the receivership was necessary. At least we must regard it as having been deemed reasonably necessary at the time of the appointment. If, however, we could accept those findings, we would still be unable ,to concur in the conclusion of the lower Court as to their resulting effect. We feel that the following features of this matter should not be overlooked.

1. The appointment of the receiver was made hy the Comptroller of the Currency upon the finding of a National Bank Examiner that the Old Bank was then insolvent.

2. There is no proof that the request for the appointment of a receiver, even though mistakenly made, was made in bad faith, and any assertions of ulterior purpose in requesting the appointment of a receiver are unsustained.

3. The receiver who brought the present suit, and who will recover for the stockholders and iuterveuors a substantial sum, at no time recommended that his appointment be vacated, and he is in no position to question or to repudiate his own appointment. The .intervenors who can intervene in a suit only in recognition of the propriety of the main proceedings likewise have never requested that the appointment of the receiver be vacated or, prior to the filing of their intervention in this suit, ever objected thereto, hut, on the contrary, are here now staunchly supporting and urging a recovery by the receiver whose tenure is still unattacked, and at whose suit they are to receive large recoveries.

4. The success of the receiver in collection, beyond expectation, of the assets of the estate entrusted to him is not an unfailing test by which the inadvisability of the appointment of a 'receiver should be measured, for neither the New Bank, the Old Bank, the Bank Examiner, nor the Comptroller would be expected to foretell that improved business conditions would occur and that delinquent debtors would pay off to a greater extent than conditions at the time of the appointment might have indicated. The salutary results achieved by a receivership are hardly conclusive proof of the lack of the necessity for the appointment of a receiver.

In the absence of convincing evidence that the appointment of a receiver was either collusive, capricious, venal, or in bad faith, the law docs not ordinarily contemplate that the expenses of the receivership will be charged other than against the fund administered by the receiver, even though the Courts are vested with a discretion in determining who should pay the costs and expenses of a receivership in unusual instances. But it seems quite incongruous to visit upon the defendant in this case the cost of the receivership on the theory that it was unnecessary when it appears that the chief industry of the receiver has been the prosecution of this suit, over a long period of time, against the defendant, out of which very substantial sums are to be recovered. The vigor with which this suit has been prosecuted against the New Bank gives little credence to the contention of the plaintiffs that the receiver was but a fool foisted on the Old Bank to do the bidding of the New. The large recovery in the first trial and in the second leave us considerably unimpressed by the collateral contentions that a receiver was needless. The majority finds that the expenses of the receivership should be paid out of the fund in the hands of the receiver.

However, we think the fact that the New Bank was one of the .moving spirits, if not the moving spirit, in securing the appointment of a receiver should be considered in connection with a determination of the expenses and compensation to 'be allowed the New Bank in connection with the liquidation of the C assets. We also think that such a request by the New Bank, even though joined in by the liquidating committee of the Old Bank, should be considered in the nature of an abandonment by the New Bank of its contractual right and obligation to liquidate such assets. This is not to say, however, that in law or in equity it would be estopped to claim compensation for its services in administering the Class C assets to. the date of the receivership. It is to say, though, that its failure to complete the liquidation, its request for the appointment of a receiver to do that which it had agreed to do, together with the large benefits and compensations that had accrued to it out of the arrangement between it and the Old Bank, considered in the light of the provision in the contract that compensation to the New Bank for liquidation of Class C assets should be reasonable, bring strongly up the question whether there is not sufficient basis for holding that all compensation, other than nominal, to the New Bank for its incomplete services in the liquidation of Class C assets be denied, and whether, while it is entitled to the actual, reasonable, and out-of-pocket expenses incurred by it in and about the liquidation of said Class C assets, the expense account allowable as to such assets should not be reexamined and redetermined.

1 . See Leslie v. Commercial Nat. Bank, D.C., 28 F.Supp. 927; Rawlings v. Commercial Nat. Bank in Shreveport, D.C., 44 F.Supp. 5; Commercial Nat. Bank in Shreveport v. Parsons, 5 Cir., 144 F.2d 231, rehearing denied, 5 Cir., 145 F.2d 191; Parsons v. Commercial Nat. Bank in Shreveport, D.C., 64 F.Supp. 888; Connolly v. Commercial Nat. Bank in Shreveport, D.C., 72 F.Supp. 961.

2 . Judge Lee, being disqualified, did not participate.

3 . Messinger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152; Texas Company v. Pensacola Maritime Corporation, 5 Cir., 292 F. 61; and Hotel Markham, Inc., et al. v. Ball, 5 Cir., 131 F.2d 424.

4 . See excellent statement as to provisions of contract in opinion by Judge Dawkins in 44 F.Supp. 5.

5 . Under the contract the New Bank was to receive six per cent straight on Class B accounts while the Old Bank was to receive whatever interest and revenue was collected from B as well as C assets. The $1,000,000 note was plaeed in Class B and drew six per cent, which was credited to the Old Bank, and since the New Bank also received six per cent on this note it entailed neither gain nor loss to either.

6 . We understand that the $1,000,000 note has been transferred to Q assets and that no liability either to the New Bank or to the Receiver of the Old- Bank attaches to it, but that it is in position to be canceled and not considered as an asset of the receivership.