Sparling v. General Discount & Mortgage Corp.

50 P.2d 1023, 184 Wash. 387, 1935 Wash. LEXIS 805

• Court: Washington Supreme Court
• Decided: November 13, 1935
• Docket: No. 24835. En Banc.
• Status: Published

Opinions

On Behearing.

Geraghty, J.

Subsequent to the rendition of the Departmental opinion herein (178 Wash. 663, 35 P. (2d) 60), a petition for rehearing En Banc was filed by the appellant. En Banc rehearing having been granted, the cause is now before us for disposition.

In the Departmental opinion, page 667, it is said:

“It appears that, in the years 1929, 1930 and 1931, the securities company advanced to the discount company the sum of $196,856.30. During the same years, the discount company repaid the securities company $163,615.70. On July 7, 1931, when the crisis came in the Pierces’ enterprises, the books of both companies showed a balance due of $52,740.70 on account of such advances. It is apparent, therefore, that, of the $163,615.70 paid by the discount company to the securities company, $19,500.10 was on account of interest. ’ ’

Appellant, in his petition, contends that the sums actually repaid by the discount company to the securities company during the years 1929, 1930 and 1931 aggregated $144,636.37, rather than the amount stated in the Departmental opinion, the discrepancy arising from the improper inclusion of sums paid in 1928. The correction of this discrepancy, with one or two other minor discrepancies to which attention is called, would require, upon the theory of the Departmental opinion, the finding of a net balance due the appellant, from the discount company, of $15, 708.71. A recheck of the record verifies the contention of appellant as to these discrepancies.

If the conclusion reached in the Departmental opinion upon the issue of. the discount company’s liability for repayment of the sums advanced and paid on account of its administrative expenses by the securities company is adhered to, it follows that the appellant should have judgment for the balance stated. A majority of the court, however, has reached a different conclusion upon this issue, and is of the opinion that the appellant is not entitled to any recovery under his second and fourth causes of action.

In his second cause of action, the appellant seeks the recovery of $22,154.89, paid the discount company to cover its administrative expenses for the years 1929 and 1930, and in his fourth cause, he seeks recovery of $29,183 on account of like expenses paid by the securities company directly. The Departmental opinion allowed appellant credit for the $22,154.80 ad vanced to the discount company for expenses, as claimed in the second cause of action, and $3,270.72 on account of expenses directly paid by the securities company, as claimed in the fourth cause of action.

It is the contention of appellant that he is entitled to repayment of the sums paid or advanced by the securities company toward the administrative expenses of the discount company. The discount company contends that it is under no liability for the repayment of these administrative expenses, since they were paid in fulfillment of an understanding had at the time of its organization, by the Pierces, as a subsidiary of the securities company, and in furtherance of its purposes. The securities company owned all of the common stock of the discount company, for which it paid only a nominal consideration, and the latter company contends that the understanding that its administrative expenses were to be borne by the securities company was part consideration for its common stock.

The trial court found:

“The plan and arrangement initiated and promulgated at the time of the organization of the General Discount & Mortgage Corporation was that all operating expenses of the General Discount & Mortgage Corporation, including salaries, office rentals, telephone, telegraph, legal and miscellaneous operating expenses, should be borne and paid by the Washington Loan & Securities Co. Plaintiff’s fourth cause of action is for the recovery thereof. The checks of February 6, 1930, for $10,321.64, and of January 14, 1931, for $11,833.25, the aggregate amount whereof plaintiff seeks to recover under his second cause of action, were given to the General Discount & Mortgage Corporation in accordance with said plan and arrangement to reimburse the latter for expenses already paid by it. None of the items in plaintiff’s second or fourth causes of action appear upon the books of either the Washington Loan & Securities Company or the General Discount & Mort gage Corporation, kept by agents of the former, as charges against the latter corporation.”

This finding of the trial court is amply supported by the record. The discount company was organized by the Pierces ten years after the formation of the securities company as a subsidiary of the latter company, which subscribed for, and held for the purpose of control, all of its common stock. It was intended to be employed as an adjunct to, and an instrument of, the older company.

The original understanding that the administrative expenses of the discount company were to be borne by the securities company was substantially followed until the collapse of the two companies. The books of the securities company exhibited no charge made against the discount company for the expenses. At the beginning, the expenses of the discount company would of necessity have to be borne by the securities company, by reason of the fact that the latter paid only a nominal sum for the common stock of the former, leaving it without working capital or the means of paying its own expenses. The obligation of the older company to bear the expenses of the discount company inhered in the original relation of the two companies and was consistently followed throughout.

Concurring in the view expressed in the Departmental opinion that neither company should profit at the expense of the other, we are, nevertheless, of the opinion that to require repayment by the discount company of the administrative expenses would be imposing upon the preferred stockholders of that company a burden they should not in equity be required to bear. From this conclusion, it follows that, even with the correction of the discrepancies called to our attention by the appellant’s petition for rehearing, there would still be a balance dne tbe discount company, for which, however, it is seeking no affirmative relief.

The judgment of the trial court will be affirmed.

Millard, C. J., Beals, Tolman, and Holcomb, JJ., concur.