Lamberton v. Federal Deposit Ins. Corporation

• Decision Date: 08 February 1944
• Docket Number: No. 8389.,8389.
• Citation: 141 F.2d 95
• Parties: LAMBERTON v. FEDERAL DEPOSIT INS. CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

141 F.2d 95 (1944)

LAMBERTON v. FEDERAL DEPOSIT INS. CORPORATION.

No. 8389.

Circuit Court of Appeals, Third Circuit.

Argued December 22, 1943.

Decided February 8, 1944.

Irving H. Jurow, of Washington, D. C. (Francis C. Brown, of Washington, D. C., and John H. Russell, of Chicago, Ill., on the brief), for appellant.

W. Pitt Gifford, of Erie, Pa. (Robert M. Dale, of Franklin, Pa., on the brief), for appellee.

Before BIGGS, GOODRICH, and McLAUGHLIN, Circuit Judges.

GOODRICH, Circuit Judge.

On December 20, 1941, the Federal Deposit Insurance Corporation¹ and the Lamberton National Bank of Franklin² executed a contract for the sale of all the Bank's assets to the F.D.I.C. This sale was part of a transaction whereby a second bank, the Exchange Bank and Trust Company,³ was to take over the deposit liabilities and acceptable assets of the Bank, and was to receive the money paid by the F.D. I.C. to the Bank. The depositors of the Bank were to then become depositors of the Purchasing Bank. The statutory authorization for this transaction was subsection (n) (4) of the Federal Deposit Insurance Corporation Act, 12 U.S.C.A. § 264.⁴ After this transaction had been consummated, this action was brought by the plaintiff, a depositor and officer of the Bank, against the F.D.I.C. to recover $1146.02. This sum was alleged to be the difference between the balance of his account in the Bank on the 20th of December and the balance as transferred to the Purchasing Bank. The court below made certain findings of fact and gave judgment for the plaintiff. The F.D.I.C. appealed to this Court.

The history of the transaction out of which the controversy arises follows. In September, 1941, the Bank submitted an application to the F.D.I.C. pursuant to the provisions of § 264(n) (4), requesting the F.D.I.C. to purchase and/or make a loan upon all the Bank's assets not acceptable for acquisition by the Purchasing Bank. The application provided that the Bank would submit all debts, fees, charges, or liabilities of the Bank, except those incurred in the normal routine business of the Bank, to an authorized representative of the F.D.I.C. for approval. The F.D.I.C., by a resolution adopted in October, authorized a purchase. The directors of the Bank on November 19, 1941, adopted a resolution, recognizing an impairment of the Bank's capital, concluding it was to the best interests of the depositors that the Bank's affairs should be terminated and accepting the F.D.I.C.'s offer. A stockholder's meeting subsequently approved the proposed transaction. The purpose of the transaction was to permit a voluntary liquidation of the Bank and to prevent loss to its depositors.

The transfer and sale was to take place on December 20, 1941. About the first week of December, the F.D.I.C.'s representatives, one of whom was William T. Milne, were in attendance at the Bank, Milne being in charge of the transaction. It had been the Bank's practice to pay its officers and employees on the fifteenth of each month for the full month. On November 19, 1941, the employees of the Bank were told of the contemplated closing of the Bank on December 20th and that they would be paid for the full month. On December 9th the board of directors of the Bank adopted a resolution to the effect that no salaries had been discussed on account of the closing of the Bank and that the cashier was instructed to pay all employees, as usual, on December 15th, their full salaries for the month. On that date or prior thereto, Milne questioned the right of the Bank to pay its officers and employees any salaries for any period after December 20th since the Bank was going out of business on that date. The directors subsequently informally reconsidered the matter but decided to act as they had previously resolved and told Milne they were going to pay the full salaries notwithstanding his objections. And, on December 15th, the Bank, without Milne's approval, paid its officers and employees their salaries for the full month of December, in the amount of $3,228.22. The plaintiff in this action, Chess Lamberton, was during this entire time the president of the Bank and chairman of the board of directors of the Bank; Robert Lamberton was a director, vice-president and cashier; Richard Lamberton was a director, vice-president and assistant cashier.⁵ As officers of the Bank these individuals, including the plaintiff, were paid their salaries for the entire month of December, 1941.

After the Bank's doors were closed for business on December 20, 1941, but while employees were still engaged both in matters pertaining to the day's affairs and the impending transfer, Milne, acting as agent for the defendant, caused to be entered as a charge against the plaintiff's checking account $1146.02, which was approximately one-third of the $3228.22 paid by the Bank as salaries for December. He also caused to be credited a similar sum to the assets of the Bank on the general ledger, thus "forcing" a balance. The result of this was that the plaintiff's beginning account in the Purchasing Bank was $1146.02 less than it would otherwise have been. He says that represents a loss to him and the defendant is responsible for it.

When one looks for a legal foundation on which to build the plaintiff's claim, he encounters rough going. There is not involved in this case any question of the liability of the F.D.I.C. as an insurer of deposited funds under other provisions of the statute which, if applicable, would give the plaintiff a right against the insurer. This was a transaction between the Bank and the F.D.I.C., effected pursuant to the provisions of § 264(n) (4), quoted above. The parties, upon negotiation, make their own terms.⁶ The fact that a particular claim against a bank was not taken into consideration in fixing the terms upon which the F.D.I.C. made a loan to a bank, gives the creditor of the bank no claim against the F.D.I.C. Thomas P. Nichols & Son Co. v. National City Bank of Lynn, 1943, 313 Mass. 421, 48 N.E.2d 49, certiorari denied, 1943, 320 U.S. 742, 64 S.Ct. 42.

The plaintiff was not a party to the contract between the...