Briley v. Crouch

• Decision Date: 12 November 1940
• Docket Number: No. 4694.,4694.
• Citation: 115 F.2d 443
• Parties: BRILEY v. CROUCH.
• Court: U.S. Court of Appeals — Fourth Circuit

115 F.2d 443 (1940)

BRILEY v. CROUCH.

No. 4694.

Circuit Court of Appeals, Fourth Circuit.

November 12, 1940.

C. H. Dearman, of Statesville, N. C., for appellant.

J. H. Burke, of Taylorsville, N. C. (H. D. Burke, of Taylorsville, N. C., on the brief), for appellee.

Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal by a receiver of a failed national bank from a judgment for defendant in an action instituted to recover the balance due on a stock assessment. The facts are not disputed and judgment was rendered on the pleadings. Defendant was the owner of ten shares of stock in the bank of the par value of $100 each. On January 22, 1934, the Comptroller of the Currency entered an assessment against the shareholders in the amount of the full par value of the shares held by them to be paid on or before March 1, 1934, the assessment against defendant amounting to $1,000. At various times between April 23, 1935, and July 27, 1937, defendant made payments to the receiver aggregating $700, the sum of $200 being paid on the date last mentioned. This action was commenced on May 1, 1940; and the defendant pleaded the North Carolina three year statute of limitations, being section 441 of the Consolidated Statutes of North Carolina, in bar of recovery. The judge, being of opinion that the statute was applicable and that the running thereof was not tolled by the partial payments made, entered judgment on the pleadings for the defendant, and the receiver has appealed.

It is conceded that there is no federal statute of limitations applicable to cases of this character and that the state statute must be applied. The pertinent sections of the limitation statute relied on, sec. 441 of the Consolidated Statutes of North Carolina, are as follows:

"441. Three years. Within three years an action —

"1. Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in the preceding sections.

"2. Upon a liability created by statute, other than a penalty or forfeiture, unless some other time is mentioned in the statute creating it."

We think that there can be no question but that the provision applicable is subsection 2 above quoted. While it is true, as this Court said in Chisholm v. Gilmer, 4 Cir., 81 F.2d 120, that the original liability of a stockholder of a national bank is contractual in nature, being based upon his original stock subscription, it is clear that his liability under a stock assessment fixing the amount of the liability is statutory and not contractual in nature. The contract of the stockholder, it is true, furnishes the basis upon which the statute operates; but it is the statute that fixes the liability, and it is action by the comptroller under the statute that fixes the amount thereof. Directly in point is McClaine v. Rankin 197 U.S. 154, 25 S.Ct. 410, 412, 49 L.Ed. 702, 3 Ann.Cas. 500. That case involved a suit on an assessment of stock in a national bank. The statute of limitations was pleaded, and the question was whether the section applicable was section 4800 of the Washington Statutes, which provided a limitation period of three years for an action upon contract, or section 4805, which provided a limitation period of two years for actions not otherwise provided for including statutory liability. In holding that the latter was the section applicable, the Court said: "Some statutes imposing individual liability are merely in affirmation of the common law, while others impose an individual liability other than that at common law. If § 5151 had provided that subscribing to stock or taking shares of stock amounted to a promise directly to every creditor, then that liability would have been a liability by contract. But the words of § 5151 do not mean that the stockholder promises the creditor, as surety for the debts of the corporation, but merely impose a liability on him as secondary to those debts, which debts remain distinct, and to which the stockholder is not a party. The liability is a consequence of the breach by the corporation of its contract to pay, and is collateral and statutory. * * * It is true that in particular cases the liability has been held to be, in its nature, contractual, yet, it is nevertheless conditional, and enforceable only according to the Federal statute, independent of which the cause of action does not exist; so that the remedy at law in effect given by that statute is subject to the limitations imposed by the state statute on such actions. * * * But here the right to sue did not obtain until the Comptroller of the Currency had acted, and his order was the basis of the suit. The statute of limitations did not commence to run until assessment made, and then it ran as against an action to enforce the statutory...