Daugherty v. Poundstone

• Decision Date: 01 October 1906
• Citation: 96 S.W. 728,120 Mo. App. 300
• Parties: DAUGHERTY et al. v. POUNDSTONE.
• Court: Missouri Court of Appeals

96 S.W. 728

120 Mo. App. 300

DAUGHERTY et al. v. POUNDSTONE.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

1. BANKS AND BANKING—INSOLVENCY—LIABILITY OF STOCKHOLDERS—PLEADING.

In an action by the trustees of a dissolved banking corporation against a stockholder to recover a dividend that should have been applied to a creditor's demand, where the petition fails to allege that defendant was a trustee, and affirmatively shows he sustained no such relation. his liability cannot be predicated on his breach of duty as a trustee.

2. APPEAL—PRESUMPTIONS TO SUSTAIN JUDGMENT.

In an action against a stockholder of a dissolved banking corporation, where the evidence is conflicting as to defendant being a director, the court, on appeal, must assume, in support of the judgment and in the absence of findings of fact and declarations of law. that the trial court found for defendant on such issue.

3. BANKS AND BANKING — NEGLIGENCE OF DISBURSING OFFICERS — LIABILITY OF DIRECTORS.

The directors of a dissolved banking corporation cannot be held personally responsible for a loss to the bank by the negligence of its disbursing officers in paying unauthorized checks.

4. JUDGMENT—RES JUDICATA.

Where a cashier of a dissolved bank was a party to an action against the trustees to recover a deposit paid out on unauthorized checks, a judgment for such depositor is res judicata of the question of the cashier's negligence in a subsequent suit by the trustees to recover of a stockholder a dividend which should have been applied to the payment of such judgment.

5. BANKS AND BANKING—INSOLVENCY—LIABILITY —STOCKHOLDERS.

The trustees of a dissolved banking corporation cannot maintain a suit against a stockholder to recover a dividend, which should have been applied to a judgment obtained against the trustees by a depositor for the amount of a deposit paid by the disbursing officers on unauthorized checks, until they have exhausted their remedy against the culpable officers and their sureties.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by W. A. Daugherty and others against R. F. Poundstone. From a judgment for defendant, plaintiffs appeal. Affirmed.

Perkins & Blair, for appellants. Thomas & Hackney, for respondent.

JOHNSON, J.

Action by the trustees of a dissolved corporation against a stockholder to recover money paid as a dividend that should have been applied to the payment of a creditor's demand. A jury being waived, the cause was tried by the court, resulting in a judgment for defendant, from which plaintiffs appealed.

No findings of fact were made, and no declarations of law asked or given. The petition alleged that plaintiffs, W. A. Daugherty, T. N. Davy, and W. B. Kane, together with H. Weyman and G. B. Ashcroft, composed the board of directors of the Bank of Carterville, a Missouri corporation. Defendant was a stockholder, owning 15 shares of the stock of the bank of the par value of $1,500. The entire stock of the bank amounted to $25,000, divided into 250 shares. On April 7, 1897, the bank went into voluntary liquidation pursuant to a resolution unanimously adopted by the shareholders at a meeting duly called for that purpose. A short time thereafter the directors, as trustees (Rev. St. 1899, § 976), sold all the assets to another bank, and out of the proceeds realized, paid depositors and creditors in full with a single exception—the cause of this controversy—and paid a dividend to the stockholders of 100 per cent. Defendant received $1,500 as his share of the dividend. After this Louisa Brown brought suit in the Circuit Court of the United States for the Western District of Missouri against the trustees to recover the amount of a deposit she carried in the bank. She alleged the dissolution and liquidation of the corporation, the fact that the trustees had received sufficient funds to pay all of the creditors in full, and their refusal to pay her demand. She recovered judgment against the trustees, which was discharged in full by the plaintiffs in the present suit out of their own funds. The amount so paid was $4,728.14. The cause of action here asserted is predicated on the idea that the stockholders, having received in the dividend paid the entire assets of the corporation, should reimburse the trustees the amount they were compelled to pay in satisfaction of the Brown judgment, and accordingly defendant is sued as a stockholder for his proportional share of that liability.

A detailed statement of the facts developed in the Brown Case may be found in the report thereof (C. C.) 120 Fed. 526. Those pertinent to the present inquiry thus may be stated: On June 1, 1895, Mrs. Brown's husband deposited $4,000 in the bank in her name, and the bank issued her a pass book. The money was her property, but between the time of the deposit and the dissolution of the bank all of the deposit, except some $700, was paid out on checks signed by the husband. These checks were presented at intervals during the period mentioned, and ranged in amounts from $50 to $500 each. Mrs. Brown did not authorize her husband to check on the deposit, and had no knowledge that her money was being dissipated in this manner. The learned judge who wrote the opinion held that the cashier and his assistant were not justified in assuming, as they did, that Brown had authority from his wife to sign her name to checks, and that the money so withdrawn could not be charged against the deposit. The cashier, W. B. Kane (one of the plaintiffs), testified in the present case that he had no knowledge of the fact that Brown was signing his wife's name to checks drawn against the deposit and that the checks were honored by the assistant cashier, W. C. Burch. It appears that Kane and Burch are solvent. Each had given a bond to the bank conditioned for the faithful performance of duty. That given by Burch was in the sum of $10,000, and was signed as surety by W. A. Daugherty, one of the plaintiffs. It appears that neither the cashier, the assistant cashier, nor their sureties have been called on by the trustees to make good the loss sustained on account of the Brown judgment. Plaintiffs introduced substantial evidence tending to show that in January, 1897, defendant was elected a director of the bank, and was acting in that capacity at...