Crawford v. Gamble, 5971.
| Decision Date | 18 March 1932 |
| Docket Number | No. 5971.,5971. |
| Citation | 57 F.2d 15 |
| Parties | CRAWFORD v. GAMBLE. |
| Court | U.S. Court of Appeals — Sixth Circuit |
B. P. Wootton, of Frankfort, Ky., and W. E. Faulkner, of Hazard, Ky. (Faulkner & Faulkner and Wootton, Helm & Wooton, all of Hazard, Ky., on the brief), for appellant.
W. W. Reeves, of Hazard, Ky., for appellees.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
Appellee, as receiver of the First National Bank of Hazard, Ky., hereafter called the Old Bank, brought this action to recover an assessment of 100 per cent. upon the shares of stock owned by appellant. The bill averred that the bank was organized under the National Banking Act (12 USCA); that it had been declared insolvent by the Comptroller of the Currency on March 18, 1930; that appellee was the receiver by virtue of appointment by the Comptroller; that the assessment was necessary in order to pay the debts of the bank, and that, although it had been demanded of appellant, he had failed to pay it. The bill set up a copy of the assessment as Exhibit A.
In his answer and counterclaim appellant admitted that the assessment had been made, but denied that the bank was either insolvent or that it was necessary to enforce the assessment. He averred that on October 18, 1928, certain directors and shareholders of the Old Bank, together with certain other persons, organized the First National Bank in Hazard, hereafter called the New Bank; that its organization was in furtherance of a scheme to transfer the assets of the Old Bank to the New Bank without the knowledge or consent of appellant and other stockholders in the Old Bank, and not only thus to deprive appellant and other stockholders of the value of their stock, but to subject them to liability for assessments thereon; that following up this scheme the officers and directors of the Old Bank, by written contract, sold and transferred to the New Bank the banking house and all other physical properties for $50,000, together with certain other assets called "the acceptable assets"; that to secure the New Bank against loss on account of the acceptable assets the Old Bank executed to the New Bank its note for $100,000; that it was agreed that the New Bank should convert these assets into cash, and if the proceeds should not, in the aggregate, equal the amount of the note, the Old Bank would pay the balance, but that "the unacceptable assets" should be held in trust by a committee and when converted into cash should be credited upon the note, and that the note should be further secured by the statutory liability of the stockholders of the Old Bank for assessments. Appellant avers that the contract and note were neither authorized nor ratified by the stockholders of the Old Bank, and that both were invalid obligations.
Appellant averred, in the alternative, that, if the note were a valid obligation of the Old Bank, yet the Old Bank had sold its physical properties for $50,000 when they were worth $125,000 and had transferred its good will worth $50,000 for no consideration whatever, and that the New Bank should be required to account to appellee for the true value of said properties and good will and that upon such accounting the note would be satisfied and all reason for an assessment would disappear. Appellant seeks to have the New Bank made a defendant for the purpose of having the contract and note declared void, or, in the alternative, for an accounting.
Appellee moved to strike the answer upon the ground that it failed to set forth facts sufficient to constitute a defense. The court sustained this motion. Thereupon appellant tendered "an amended and substituted answer." The distinguishing features of this amended answer are the averments that the New Bank took assets of the Old Bank amounting approximately to $1,350,000 for which it assumed the payment of the deposits and debts of the Old Bank in an amount not exceeding $948,466.76; that it did not set up these assets upon its books at more than $950,000, and that to induce the Comptroller to assess the stockholders of the Old Bank the two banks through their officers and agents fraudulently concealed the real condition of the Old Bank; that a voluntary liquidation of the Old Bank was never authorized by its stockholders, nor had either the Old or New Bank requested an examination by a National Bank Examiner...
To continue reading
Request your trial
-
Bedenbaugh v. Lawrence
... ... assessment against the stockholder and the necessity therefor ... is conclusive. See Crawford v. Gamble, 6 Cir., 57 ... F.2d 15; Davis v. Gamble, 6 Cir., 57 F.2d 17; ... Aldrich v ... ...
-
Abel v. Munro
...the liquidating bank, for which its shareholders are responsible. Wyman v. Wallace, 201 U.S. 230, 26 S.Ct. 495, 50 L.Ed 738; Crawford v. Gamble, 6 Cir., 57 F.2d 15; B. V. Emery & Co. v. Wilkinson, 10 Cir., 72 F.2d I cannot find that the Comptroller was attempting to exercise judicial functi......
-
Schram v. Lucking
...hold the necessity for assessments has already been decided in the following cases: Barbour v. Thomas, 6 Cir., 86 F.2d 510; Crawford v. Gamble, 6 Cir., 57 F.2d 15; Adams v. Nagle, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. Defendants also claim that the statute of limitations furnished another de......
-
Coffey v. Myers
...say that the stockholders are liable for an assessment made necessary by such illegal and ultra vires acts. In the case of Crawford v. Gamble, 6 Cir., 57 F.2d 15, 17, a suit by a receiver of a national bank, the stockholder interposed the defense that the liability sought there to be enforc......