Eaton v. Pacific National Bank

10 N.E. 844, 144 Mass. 260, 1887 Mass. LEXIS 160

• Court: Massachusetts Supreme Judicial Court
• Decided: March 23, 1887
• Status: Published

Opinion

Field, J.

When this action was brought, the bank was not in the hands of a receiver, and the receiver afterwards appointed ¡has not formally intervened or appeared; but it was understood at the argument that the action was defended by him, and that he desired that it should be prosecuted for the purpose of determining the liability of the bank. See Bethel Bank v. Pahquioque Bank, 14 Wall. 383.

The case was reserved for the consideration of the full court, presumably under the Pub. Sts. c. 150, § 8. The facts have been found, and although the questions of law have not been stated in the report it is plainly the intention of the report to reserve the question of law whether, on the facts found, or such of them as are competent, judgment should be entered for the plaintiff or for the defendant. We are of opinion that the reservation is within the power conferred by this section of the statutes; and we consider the case as if it were reserved for judgment upon the facts found, which are in the nature of a special verdict. See Terry v. Brightman, 129 Mass. 535.

By the articles of association of the bank “ the capital may be increased according to the provisions of § 5142 of the Revised Statutes to any sum not exceeding ten hundred thousand dollars,” and the board of directors shall have power “ to provide for an increase of the capital of the association, and to regulate the manner in which such increase shall be made.” The vote of the directors of September 13, 1881, to increase the capital stock to $1,000,000, which was an increase of $500,000, and the subsequent vote of December 13, 1881, to increase the capital stock by $461,300, instead of $500,000, were therefore both within the power of the board.

The case raises a question which was suggested, but not decided, in Delano v. Butler, 118 U. S. 634. It was there said: “ It will be observed that, without waiting to see what the future action of the association and the comptroller of the currency might be on the question of the ultimate amount of the increased stock, the plaintiff in error paid for his shares and accepted his certificate. This he did, in legal contemplation, with knowledge of the law which authorized the association and the comptroller of the currency to reduce the amount of the proposed increase to a less sum than that fixed in the original proposal of the directors; and such payment and acceptance of the certificates in accordance therewith might amount, under such circumstances, on his part, to a waiver of the right to insist that he should not be bound unless the whole amount of the proposed increase should be subscribed for and paid in. But without insisting upon that point, or deciding it, we think that the subsequent conduct of the plaintiff in error amounts to a ratification.” 118 U. S. 650.

In the present case the plaintiff paid in her money, but did not accept a certificate of stock.

To make the increase of the capital stock valid, it must be authorized in accordance with the articles of the association; the whole amount of it must be paid in ; notice thereof must be transmitted to the comptroller, and he must certify “ that it has been duly paid in as part of the capital of such association,” and must approve of it. U. S. Rev. Sts. § 5142. The plaintiff therefore was compelled to pay in her money before the final action of the comptroller, in order to become entitled to'any part of the new stock. Within the maximum of the increase of capital stock provided for by the articles of association, the comptroller could not determine the amount of the increase except' by approving, or refusing to approve, the amount authorized by and paid into the bank. The united action of the bank or its directors, of the subscribers to the new stock, and of the comptroller, was required to effect an increase of the capital stock; and when the plaintiff paid in her money she ran the risk that the contemplated increase of 1500,000 might fail, either because it might not all be subscribed for and paid, or because the comptroller might refuse his approval; but she did not run the risk that, if it were all paid in, the comptroller might, without any further action of the bank or its directors, reduce the amount of the increase, because he had not the lawful power to do this. If the comptroller refused his approval, the plan failed. The directors by a new vote might authorize another and a different increase of the capital stock, which, if the amount was paid in, and the comptroller approved of it, would become an actual increase of capital stock. But this would be an abandonment of the first plan by the bank, and the adoption of another.

Upon the ordinary principles of contract, if the plaintiff paid in her money for forty shares of stock, on the condition that five thousand shares of stock should be created, she could not be bound to take the forty shares, if the condition was not performed. If there was such a condition, the plaintiff could not be required to take forty shares out of four thousand six hundred and thirteen shares, which the bank by a subsequent vote authorized, unless there is something in the facts which shows that the amount of stock to be created was immaterial, or unless she assented to the change, or her assent is to be implied, or unless, on grounds of public policy and the rights of creditors, she cannot be permitted to withdraw her money after the comptroller has certified that a certain amount has been paid in as an increase of the capital stock, which amount includes the sum she had paid.

Whether the plaintiff shall become the owner of forty out of five thousand shares of capital stock, or the owner of forty out of four thousand one hundred and sixty-three shares cannot be regarded as immaterial, particularly in a corporation where the stockholders are liable to an assessment to the amount of the stock held by each to supply a deficiency in the capital stock, (U. S. Rev. Sts. § 5205,) and are also held “ individually responsible, equally and ratably, and not one 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 in such shares.” U. S. Rev. Sts. § 5151.

Neither can we perceive any sound reason why, in legal contemplation, she must be held to have assented to the change whereby the amount of the contemplated increase was reduced to $461,300. She paid in her money under a vote whereby the capital stock was to be increased by $500,000. If this amount was not paid in, or the comptroller did not approve of this increase, there was an end of the proposition which had»been voted, and which she and the bank had in contemplation when she paid in her money. If the directors of the bank, after she paid in her money, abandoned their original vote, and passed another vote for an increase different in amount, it is difficult to see how she was bound by it. They were not her agents; the new vote was not passed in furtherance of the original proposition to make the increase $500,000; the vote was not a reduction of the capital stock of the bank, because the increase had not then been made; and the capital stock of a banking association can only be reduced by a vote of the shareholders. U. S. Rev. Sts. § 5143. To make the increase of the capital stock $461,300, instead of $500,000, was essentially a new proposition, authorized for the first time on December 13, 1881, nearly two months and a half after the plaintiff paid in her money.

On the facts found, the intention of the directors and of the comptroller is apparent. The bank failed on November 18,1881; and, before this, $461,300 had been paid into the bank for new stock, to be created under the vote passed on September 13, 1881. It was not likely that any more money would be paid in for this purpose after the failure of the bank. The bank had received this money, and had used and lost it. On its failure, a bank examiner took possession of the bank and its assets, and remained in possession until March 18, 1882. While its assets were in the possession of the bank examiner, it was decided to make this $461,300 a part of the capital stock of the bank; it would then cease to be a debt of the bank, and the creditors of this sum, having thus been made stockholders, would then be liable to an assessment to an equal amount to supply the deficiency of capital stock, and would also be liable to pay another equal amount to satisfy the debts of the bank. The directors accordingly passed the vote of December 13, 1881, which in form is a reduction of the capital stock by the sum of $38,700, but in fact is a vote authorizing the increase of the capital stock by $461,300; and they attempted to apply the money paid in under the previous vote to this new increase which they had voted, and then voted that the comptroller of the currency be notified that the capital had been increased by this sum, and that the whole amount had been paid in; and they requested the comptroller to issue his certificate.' The cashier on the same day sent to the comptroller a copy of the foregoing’ votes, and his certificate that the capital had been increased by the sum of $461,300, all of which had been paid in. The copy of the votes sent to the comptroller informed him that the attempt to obtain $500,000 for an increase of the capital stock had failed, and because it had failed that the directors had fixed the amount of the increase at $461,300, and had declared the money paid in under the previous vote as paid in for the new stock voted on December 13. The comptroller of the currency on December 16, 1881, issued the usual certificate approving of “ said increase of capital stock ” to the amount of $461,300, and on the same day sent to the bank a notice that its entire capital stock, including the increase he bad just then approved, having been lost, an assessment of one hundred per cent must be laid upon the shareholders, otherwise the bank must go into liquidation, or a receiver must be appointed according to U. S. Rev. Sts. § 5234.

It is argued that the certificate of the comptroller is conclusive on the plaintiff that the sum of $461,300 was actually paid in as an increase of capital stock, and that this includes the amount which she paid. Undoubtedly the public, in dealing with a bank, do rely to some extent upon the certificate by the comptroller of the amount of the increase in the capital stock of the bank, and that this amount has been actually paid in; and so long as the certificate remains unrevoked, it may be taken to establish the amount of the capital stock of the bank. If the certificate happens for any reason to be false, it is probable that an assessment may be laid upon the shareholders to make up the deficiency in the capital stock. But that the certificate of the comptroller makes any one a shareholder who is not one, or enables a bank to appropriate a debt it owes to a payment for stock, or to treat one of its creditors as a shareholder, is a proposition to which we cannot assent. The obligation of the plaintiff to take the new shares depends upon her contract with the bank. If we assume that immediately after the vote of December 13, 1881, the plaintiff could have treated the original vote as abandoned, and could have demanded her money, and brought and maintained an action to recover it, the action of the directors and of the comptroller in erroneously including the amount she had paid in the amount which had been paid in to increase the capital stock by $461,300 cannot affect her legal relations with the bank, unless she has assented to or ratified that action, or is estopped by her conduct, or has been guilty of loches. As she demanded repayment, on January 10, 1882, of the money she had paid, she is not guilty of loches. It is not contended that there is any estoppel; and it is plain that there is no evidence of actual assent or ratification.

The defendant denies that it was the contract between it and the plaintiff that she should receive forty shares out of five thousand shares of new stock, and says that the contract was that she should receive forty shares of new stock, and that there was no condition attached to the contract that the capital stock should be increased by §500,000. This objection is fundamental. The plaintiff did not subscribe for stock, but paid in her money in pursuance of the vote of September 13, 1881, and she took a receipt. There is no express condition; but, construing the receipt in connection with the vote, it is plain that she paid in her money for forty shares of the new stock voted on September 13.

In Warwick Railroad v. Cady, 11 R. I. 131, 137, it is said: “ If the charter had provided for a definite capital, or if by general law provision had been made that the enterprise should not be commenced until some definite proportion or amount should be subscribed, .... or if before subscription the capital had been fixed by vote or agreement, then it might well be held that the raising the whole amount was a condition of the subscription. And so, also, if the amount was named in the paper subscribed.” This statement of the law is supported by our own decisions and by many others. Salem Mill-Dam Corporation v. Ropes, 6 Pick. 23; and 9 Pick. 187. Central Turnpike v. Valentine, 10 Pick. 142. Cabot & West Springfield Bridge v. Chapin, 6 Cush. 50. Atlantic Cotton Mills v. Abbott, 9 Cush. 423. People’s Ferry Co. v. Balch, 8 Gray, 303. Troy & Greenfield Railroad v. Newton, 8 Gray, 596. Katama Land Co. v. Jernegan, 126 Mass. 155. Read v. Memphis Gas Co. 9 Heisk. 545. Santa Cruz Railroad v. Schwartz, 53 Cal. 106. Hughes v. Antietam Manuf. Co. 34 Md. 316. Ridgefield & New York Railroad v. Brush, 43 Conn. 86. Ticonic Water Power Co. v. Lang, 63 Maine, 480. Lewey's Island Railroad v. Bolton, 48 Maine, 451. Allman v. Havana, Rantoul, & Eastern Railroad, 88 Ill. 521. Memphis Branch Railroad v. Sullivan, 57 Ga. 240. Peoria & Rock Island Railroad v. Preston, 35 Iowa, 115. Contoocook Valley Railroad v. Barker, 32 N. H. 363. Norwich & Lowestoft Nav. Co. v. Theobald, M. & M. 151. Pitchford v. Davis, 5 M. & W. 2. Peirce v. Jersey Waterworks Co. L. R. 5 Ex. 209.

If, however, the amount of the capital stock is left indefinite, or the maximum and minimum of the amount only are defined, with the right in the corporators or directors subsequently to determine the amount, a subscription to stock must be deemed absolute, unless there is an express condition inserted in the subscription, or unless a sufficient amount is not subscribed to enable the corporation legally to organize. Penobscot & Kennebec Railroad v. Bartlett, 12 Gray, 244. Boston, Barre, & Gardner Railroad v. Wellington, 113 Mass. 79. Boston Albany Railroad v. Pearson, 128 Mass. 445.

A subscription to an increase of capital stock manifestly differs from a subscription to the original stock in this, that the subscriber is dealing with a corporation already organized and doing business, and it has been said that there is no implied condition that the whole number of the new shares created should be subscribed for or issued. But whether there is an implied condition attached to a subscription for new stock depends upon the contract of subscription, construed with reference to the law and the facts under which it is made, and this is to be determined in the same manner, and upon the same principles, in subscriptions for new stock as in subscriptions for original stock. See Charleston v. People’s National Bank, 5 S. Car. 103. In the common case of a corporation authorized to create new stock by a vote of its stockholders or directors, the stock is created by the vote. In the absence of any statute prescribing how it shall be disposed of, it may be allotted among the stockholders, or it may be sold from time to time as the corporation needs money. It may be sold by subscription, and the stockholders may be entitled to a preference in subscribing, and they may sell their rights. If the law requires that the new stock be paid for at par before it is issued, this must of course be done; but unless a statute or a by-law requires that the new stock shall all be subscribed for before it is created or issued, there is no implied condition that all the stock created shall be subscribed for or issued. The increase of the capital stock is fixed by the vote, and the corporation is left to dispose of the new stock as it can, according to law. Nutter v. Lexington West Cambridge Railroad, 6 Gray, 85.

But, in the case at bar, the provisions of the statutes of the United States relating to an increase of the capital stock are even more strict than those relating to the original stock. An association may be authorized to commence business when fifty per cent of the capital stock has been paid in; U. S. Rev. Sts. § 5140; but there can be no increase in the capital stock until the whole amount of the increase has been paid in. § 5142. The vote of the directors of September 13, 1881, was, we think, in the nature of a proposal to the stockholders to subscribe for five thousand shares of new stock, and to pay in for it $500,000. It was necessary that the stock should all be taken and the money all paid in before the new stock could be created. It was a condition precedent to the issue of the new stock under this vote, that both these things.should be done, and that the comptroller should certify that they had been done, and approve of the increase. We think that the plaintiff paid in her money upon the implied condition that she should not be entitled to new stock unless $500,000 was paid in and the comptroller approved of the increase, and also upon the implied condition that she should not be required to take new stock unless the amount proposed was created.

The result is, that the plaintiff is entitled to judgment for $4000, with interest from January 10, 1882, the date of her demand. So ordered.