Chavous v. Gornto

• Decision Date: 17 January 1925
• Parties: CHAVOUS v. GORNTO.
• Court: Florida Supreme Court

102 So. 754

89 Fla. 12

CHAVOUS v. GORNTO.

Florida Supreme Court, Division B.

January 17, 1925

Error to Circuit Court, Lafayette County; M. F. Horne, Judge.

Action by J. M. Gornto, receiver of the Citizens' Bank of Mayo Against W. P. Chavous. From judgment for plaintiff, defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Acquisition of bank stock implies assent of owner to statutory conditions as to liability of stockholders for obligations of bank under which corporation is organized. The staturoty liability of stockholders in a banking company for its obligations is primarily contractual in its nature, and any acquisition of such stock implies assent of the owner to the statutory conditions under which the corporation is organized.

Order of state comptroller, acting within authority, directing assessment against stockholders of insolvent banking company is conclusive of necessity thereof. The order of the state comptroller, acting within his authority, directing an assessment against stockholders of an insolvent banking company for the contracts and obligations of such bank, is conclusive of the necessity for such assessment, and cannot be controverted by a stockholder in an action to enforce such assessment.

Pleading should be stricken only in cases palpably requiring it. Striking a pleading is a severe remedy, and should be resorted to only in cases palpably requiring it in the proper administration of justice.

Pleas entirely destitute of merit and frivolous may be stricken. Pleas entirely destitute of merit, and which are plainly frivolous, may be stricken.

It is no objection to plea that it is contradicted by another plea filed by same party in same cause. Generally it is no objection to a plea that it is contradicted by another plea filed by the same party in the same cause.

COUNSEL

W. P. Chavous, of Cross City, for plaintiff in error.

Hal W Adams, of Mayo, for defendant in error.

OPINION

WEST J.

This action is by the receiver of a bank against a stockholder to enforce the statutory liability for the contracts, debts, and engagements of the bank.

The declaration alleges the bank's insolvency, the appointment of a receiver, an assessment by the state comptroller against the stockholders of the insolvent bank for the full amount of their respective liability under the statute, ownership by the defendant of a number of shares of stock, his liability to the plaintiff as receiver by virtue of the assessment in the sum demanded equal to the par value of his shares, and refusal to pay the same.

By pleas to the declaration, defenses were attempted to be set up that the bank was not at the time of the appointment of the receiver, nor at the time of the institution of the suit insolvent; that, on the contrary, it was upon the dates mentioned solvent, and had no outstanding obligations upon which it was in default, and therefore the appointment of the receiver was without authority of law, and a fraud upon stockholders of the bank. The fraud is alleged generally; the specific acts constituting it not being stated. Demurrers to these pleas were sustained.

The statute of this state fixing the liabilities of stockholders in banks, enacted in 1889, is as follows:

'Stockholders of every banking company shall be held individually responsible equally and ratably and not for one another for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares.' Section 4128, Rev. Gen. Stats.

The doctrine is settled that the liability of stockholders in a banking company for its obligations is primarily contractual, and any acquisition of the stock implies assent of the owner to the statutory conditions under which the corporation is organized. McNeill v. Pace, 69 Fla. 349, 68 So. 177; Bryan v. Bullock, 84 Fla. 179, 93 So. 182; Richmond v. Iron, 121 U.S. 27, 7 S.Ct. 788, 30 L.Ed. 864; Carrol v. Green, 92 U.S. 509, 23 L.Ed. 738; Aldrich v. McClaine, 106 F. 791, 45 C. C. A. 631; Howarth v. Angle, 162 N.Y. 179, 56 N.E. 489, 47 L. R. A. 725.

The statute of this state is substantially the same as the statute fixing the liability of shareholders in National Banking Associations, in effect since 1864. Section 5151, U.S. Rev. Stats. (Comp. St. U.S. § 9688). Under the federal statute it has been uniformly held that an order of the comptroller, acting within his authority, directing an assessment, is conclusive upon stockholders of the bank, and cannot be controverted by them in any defense to an action based upon such assessment. Aldrick v. Campbell, 97 F. 663, 38 C. C. A. 347; Deweese v. Smith, 106 F. 438, 45 C. C. A. 408, 66 L. R. A. 971, and note; Bushnell v. Leland, 164 U.S. 684, 17 S.Ct. 209, 41 L.Ed. 598; United States v. Knox, 102 U.S. 422, 26 L.Ed. 216; National Bank v. Case, 99 U.S. 628, 25 L.Ed. 448; Casey v. Galli, 94 U.S. 673, 24 L.Ed. 168; Kennedy v. Gibson, 8 Wall. 498, 19 L.Ed. 476.

In Kennedy v. Gibson, supra, the reason for this rule is stated as follows:

'The receiver is the instrument of the comptroller. He is appointed by the comptroller, and the power of appointment carries with it the power of removal. It is for the comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much, shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of suit by the receiver. The fact must be distinctly

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