Mathews v. Columbia Nat. Bank of Tacoma

• Decision Date: 05 February 1900
• Docket Number: 514.
• Parties: MATHEWS v. COLUMBIA NAT. BANK OF TACOMA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

100 F. 393

MATHEWS v. COLUMBIA NAT. BANK OF TACOMA et al.

No. 514.

United States Court of Appeals, Ninth Circuit.

February 5, 1900

T. W Hammond, for plaintiff in error.

P Tillinghast, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The Columbia National Bank of Tacoma was an association organized under the national banking acts of the congress of the United States on September 2, 1891, with an original capital stock of $200,000, divided into shares of $100 each. It was provided in the articles of association that the capital stock might be increased at any time by shareholders owning two-thirds of the stock, according to the provisions of the act of congress of May 1, 1886 (24 Stat 18). The organization commenced a banking business in the city of Tacoma in September 1891, and so continued until October 24, 1895, when the bank was closed, and the comptroller of the currency appointed a receiver, who afterwards resigned, and the defendant in error Philip Tillinghast was appointed as receiver of said association and duly qualified as such. At a regular meeting of the shareholders of the association called and held on January 12, 1892, an amendment to the articles of association was passed, providing 'that under the provisions of the act of May 1, 1886, the capital stock of this association be increased in the sum of $300,000, making the capital $500,000. ' It was further resolved 'that, as the money paid in amounts to $50,000 or more the president or cashier be authorized to certify the same to the comptroller of the currency, and shall so continue to certify until the said $300,000 is paid in. ' The plaintiff in error, L.P. Mathews, became a stockholder in the bank on July 13, 1892, at which time he purchased 12 shares of the original stock of the bank, which were duly transferred to him, and a certificate issued and delivered therefor. On October 28, 1892, plaintiff subscribed for 23 shares of the increased capital stock of the association authorized at the meeting of the shareholders on January 12, 1892, and paid to said association $2,300 therefor, whereupon the name of the said L. P. Mathews was entered upon the books of the bank as the holder of 23 shares of the increased capital stock of the bank, and a certificate therefor was issued and delivered to him. On November 2, 1892, the plaintiff gave a proxy in blank to the officers of the bank, which was never formally revoked. The blank was filled with the name of T. W. Bean, and the proxy or power of attorney, as thus filled out, appointed Bean as the attorney for the plaintiff in error, and in his name, place, and stead to vote at any and all stockholders' meetings of the bank at which the plaintiff would have the right to vote, and in the same manner as he would do were he personally present, with full power to substitute an attorney under him for like purposes. On December 28, 1893, a dividend of 4 per cent. upon the capital stock of the bank was declared, payable January 2, 1894, and on the last-named date two checks were issued to plaintiff by the bank, and forwarded to him, for $48 and $92, respectively. Both of these checks were received by the plaintiff in due course of mail, and the money collected by the plaintiff upon the same. On September 9, 1895, at a meeting of the stockholders of the bank, a resolution was adopted increasing the capital stock of the bank $150,000, making the capital stock of the bank, after increase, $350,000. T. W. Bean was present at this meeting, and voted a number of shares of stock as proxy, including 12 shares of the stock belonging to the plaintiff. On September 9, 1895, a certificate was forwarded by the officers of the bank to the comptroller of the currency, showing that the capital stock of the bank had been increased pursuant to the act of congress approved May 1, 1886, in the sum of $150,000, all of which had been paid in cash, and that the paid-up capital stock of said bank amounted to $350,000. On the 23rd day of October, 1895, the comptroller of the currency issued a certificate approving of the increase of the capital stock of the bank in the sum of $150,000, and certifying that the same had been duly paid into said bank as part of the capital stock thereof. On the 22nd of June, 1896, the comptroller of the currency, having ascertained that the assets and property and credits of the association were insufficient to pay its debts and liabilities, made an assessment and requisition, as provided by said acts of congress, upon the shareholders of the bank, of $61 upon each and every share of the capital stock held and owned by them, respectively, at the time of its default, and directed the defendant Philip Tillinghast, as receiver of the bank, to take all necessary proceedings, by suit or otherwise, to enforce to that extent the individual liability of the shareholders. On the 28th day of June, 1896, Tillinghast, as receiver of the bank, demanded of the plaintiff the said assessment and requisition upon 35 shares of the stock, whereupon the plaintiff paid to Tillinghast, as such receiver, the sum of $732, being the assessment and requisition upon 12 shares of stock, but refused to pay the balance of $1,403, the assessment and requisition on the 23 shares of increased capital stock. Thereafter, to wit, on July 11, 1896, plaintiff brought this action against the bank and Philip Tillinghast, receiver, to recover the sum of $2,525, being the amount paid by him on October 28, 1892, as his subscription of $2,300 for the increased capital stock of the bank and $225 alleged to have been loaned to the bank on July 16, 1895, together with interest on both sums at the legal rate. A demurrer to the complaint was overruled (77 F. 372), and thereupon defendants filed an answer to the complaint and a counterclaim. In the counterclaim defendants asked judgment against the plaintiff for the assessment of $61 per share of 23...