Fitzpatrick v. Stevenson

• Decision Date: 19 April 1937
• Docket Number: 7651.
• Citation: 67 P.2d 310,104 Mont. 439
• Parties: FITZPATRICK v. STEVENSON et al.
• Court: Montana Supreme Court

67 P.2d 310

104 Mont. 439

FITZPATRICK v. STEVENSON et al.

No. 7651.

Supreme Court of Montana

April 19, 1937

Appeal from District Court, Beaverhead County; Lyman H. Bennett Judge.

Action by Henry Fitzpatrick against B. N. Stevenson and others, as trustees of the Security State Bank of Dillon, a dissolved corporation. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded for trial on the merits.

Wm. B Frame and M. J. Doelpker, both of Butte, and Frank Blair, of Virginia City, for appellant.

John Collins and H. G. Rodgers, both of Dillon, for respondent.

ANGSTMAN Justice.

This action came on for trial before the court sitting with a jury, and, after some evidence had been introduced defendants objected to the introduction of further evidence on the ground that the supplemental complaint was insufficient. The court sustained the objection and dismissed the jury. Plaintiff was given ten days within which to amend his complaint; he elected to stand upon the complaint, and judgment was entered dismissing the action. Hence the only question involved is the sufficiency of the supplemental complaint.

The supplemental complaint alleges, in substance, that on and prior to the 7th day of January, 1931, the Security State Bank of Dillon was a banking corporation and that defendants named, on January 7th, were its directors; that on January 7th the bank dissolved its charter by filing a certified copy of a certificate of dissolution in the office of the Secretary of State; that on August 4, 1924, plaintiff and the bank entered into an agreement by the terms of which the plaintiff was given an option to purchase from the bank certain described land at any time prior to January 1, 1925, at the price of $3,000 with interest; that plaintiff paid the sum of $250 for the option which was agreed to be applied as part of the purchase price in the event he exercised the option; that thereafter he at various times paid additional sums aggregating $1,750 for the purpose of extending the time within which he might exercise the option, with the understanding that these payments should be applied as payments on the purchase price if the option were exercised; that the last extension agreement extended the time to November 29, 1927; that on February 16, 1927, the bank desired to lease the property, along with other property, to George W. Murray and requested plaintiff to join in making such lease; that a lease was thereupon executed on March 23, 1927, and it was alleged that, in consideration of making the lease, the bank agreed with plaintiff that the time within which he might exercise the option to purchase the property would be extended for a period of five years more, and that, in the event a sale of the property would be made by the bank, plaintiff would be protected to the extent of the payments which he had made, with interest at 8 per cent. per annum; that plaintiff accepted the proposal of the bank and joined with it in executing the lease; that plaintiff performed every act and thing agreed by him to be done; that Murray entered into possession of the property and remained in possession until March 25, 1929, when the bank, contrary to its agreement with plaintiff, sold and deeded the property to Stella Murray, the wife of George W. Murray, and that the bank repudiated its contract with plaintiff to sell the land to him, thereby depriving him of the payments which he had made on the land, in the total sum of $2,000, with interest at 8 per cent. from the dates of the several payments; that the original complaint was filed on May 10, 1930, against the bank, and that summons was served upon the bank by delivering it to T. J. Mulaney, a director and liquidating agent; that the bank appeared in the action by demurrer on the 24th day of January, 1931; that the demurrer was sustained and plaintiff filed an amended complaint on December 15, 1931; that on December 17th the bank filed an answer; that the action having been brought in Madison county, it was by stipulation of the parties transferred to Beaverhead county; that in November, 1933, it came on for trial and a jury was drawn; that while the cause was in progress of trial the court's attention was called to the fact that a statement, in pursuance of sections 9929 to 9931, Revised Codes, had been filed by a majority of the board of directors dissolving the bank; that thereupon the setting of the cause was vacated and the jury dismissed; that at the time the action was instituted, and ever since until its dissolution, the bank held in trust for the plaintiff the sum of $2,000 with which to pay the damage and detriment suffered by him for the violation of the contract between him and the bank, as well as a sum sufficient to pay the interest at the rate of 8 per cent. per annum; that the defendants named are the trustees of the dissolved bank; that after the commencement of this action, and for a long period thereafter, the bank had assets sufficient to have paid plaintiff's claim; and that at some time prior to January 5, 1931, the corporation, intending to defeat and defraud plaintiff out of the payments made, willfully, unlawfully, and fraudulently distributed its assets to creditors during and while they knew that this action was pending, and that the distribution of the assets was made in fraud of plaintiff and with the intent to defeat him of his just claim against the bank. It prays for judgment in the sum of $2,000, together with interest at 8 per cent. per annum from the dates of the several payments.

Defendants contend that the supplemental complaint is insufficient to state a cause of action, first, because it does not allege whether any other persons were appointed by the court as trustees of the dissolved bank.

Section 6011, Revised Codes, contains this provision: "Unless other persons are appointed by the court, the directors of any corporation, at the time of its dissolution, are trustees of the creditors and stockholders or members of such corporation, and have full power to settle and liquidate its affairs."

It is the contention of defendants that before plaintiff can maintain an action against the directors of the dissolved bank, he must allege in his complaint that other persons were not appointed by the court to act as trustees. It has often been held by this court that, in a criminal case, it is not necessary for the state in its information to negative an exception contained in the statute, but that such exception is matter to be asserted in defense. State v. Wood, 53 Mont. 566, 165 P. 592; State v. Hopkins, 54 Mont 52, 166 P. 304, Ann.Cas.1918D, 956; State v. Finley, 72 Mont. 42, 231 P. 390; State v. Mun, 76 Mont. 278, 246 P. 257. This court has likewise applied the same rule in civil cases. Commonwealth Public Service Co. v. City of Deer Lodge, 96 Mont. 15, 28 P.2d 472; State ex rel. Blenkner v. Stillwater County, 104 Mont. 387, 66 P.2d 788. We think that rule has application here. Moreover, since the dissolution was under ...