Reese v. Bank of Montgomery County

31 Pa. 78, 1855 Pa. LEXIS 246

• Court: Supreme Court of Pennsylvania
• Decided: May 17, 1855
• Status: Published

Opinion

The opinion of the court was delivered by

Lowrie, J.

The law instituting this bank contemplates that it may, at its start, not have the whole of its capital stock subscribed ; and the governor is authorized, on a certain portion of it being subscribed and paid, to issue the letters patent of incorporation in favor of the then subscribers, and of “ all those who shall afterwards subscribe,” so far as to make up the full capital. It was not at all the purpose of this provision to define the persons who should be entitled, after the issuing of the charter, to subscribe ; but only to say that the corporate franchise should belong to the persons who might then be, and who thereafter should become stockholders.

Is the plaintiff entitled to a remedy for being excluded from subscribing for the new stock? We think he is. Since the acts of incorporation do not declare how the untaken stock shall be disposed of, it stood like all the other corporate franchises, and belonged to the corporators, and they had a right to all the profits that could be derived from it — the bank held the right in trust for its members. The directors might order it to be sold, and then the profits would be shared among the members at the next dividend ; or they might allow each member to subscribe for his proportion of the new stock as nearly as it could be fixed in integral shares. This right is easily calculated, and it could not be given to one without being given to all; and to deprive the plaintiff of his share was a legal injury — a violation of his personal right, for which he is entitled to compensation.

Can he sue in assumpsit? We think he can; though there was no contract, expressed or intended, to give him his proportion. The violation of his right was a tort, but not simply a tort; for the corporation stood to him in a special relation, out of which arose a special duty correlative to his right. The law usually imputes a contract when it imposes a duty; and it does this whenever a position is intentionally assumed, out of which the duty naturally arises. In such cases, and for the purpose of accommodating the case to the form of action, the law allows the waiver of the tort and the implication of the assumpsit. The existence of this duty is a sufficient ground for the averment of the promise which the form of action requires.

May the plaintiff pass by the directors and sue the bank ? We think he may. The directors had no power to affect his rights except as agents of the bank. It did the wrong in the only way it could, by the agency of its functionaries. And to compel it to redress the injury, is not to visit the sins of the guilty on the innocent, any more than is common in cases of associated interests. It is one of the necessary risks of all associations. We cannot help it that this makes new stockholders liable for old injuries, unless we say that the bank was legally different after the new subscriptions from what it was before. Besides this, the new subscribers participated in the act of the directors by taking stock under their unjust resolution.

It requires no jurist to say that an ex post facto resolution, for the forfeiture of the plaintiff’s interest, as a penalty for being in arrear, is void. Even the legislature has no power to perpetrate such injustice.

Since the stock of the bank might be affected by the increase of its amount, its market value after the new stock was subscribed, is the proper measure of damages for depriving the plaintiff of his right.

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Judgment reversed and new trial awarded.

See 2 Casey 149.