Mcneill v. Pace

• Decision Date: 30 March 1915
• Citation: 68 So. 177,69 Fla. 349
• Parties: McNEILL et al. v. PACE.
• Court: Florida Supreme Court

68 So. 177

69 Fla. 349

McNEILL et al. v. PACE.

Florida Supreme Court

March 30, 1915

Appeal from Court of Record, Escambia County; Kirke Monroe, Judge.

Suit by J. B. McNeill and another, as receivers of the Pensacola State Bank, against J. E. Pace. From an order sustaining a demurrer to the bill, complainants appeal. Reversed.

Cockrell J., dissenting.

Syllabus by the Court

SYLLABUS

Statutory powers expressly conferred carry with them by implication of law all consistent powers that are necessary to the effectual execution of the powers expressly conferred.

The statute makes the stockholders of a banking company individually liable equally and ratably, and not one for another, to the extent of the par value of their stock, in addition to the amount invested in such shares; and this liability is not to or for the benefit of particular creditors, but is 'for all contracts, debts and engagements of such company.'

The liability of a stockholder of a banking company arises ex contractu by the act of subscription to or the purchase of stock in such company, whereby the stockholder becomes subject to the provisions of law creating and fixing his liability.

The authority given the receiver of a banking company 'to close up the affairs of such company' by implication confers authority to enforce by suit the statutory liability of the stockholders for the purpose of discharging and performing 'all contracts, debts and engagements of such company.'

COUNSEL S. M. Loftin and J. P. Stokes, of Pensacola, for appellants.

Blount & Blount & Carter, of Pensacola, for appellee.

OPINION

WHITFIELD J.

A suit in equity was brought by the receivers of the Pensacola State Bank, a banking corporation, existing under the laws of Florida, against J. E. Pace, a stockholder of said corporation, to recover $1,000 as the defendant's statutory liability on his stock; it being alleged that the contracts, debts, and engagements of said corporation are far in excess of the assets of said corporation, plus a sum of money equal to the capital stock of said corporation at its par value. A demurrer to the bill was sustained, on the ground 'that the complainants are not the proper parties to enforce the liability mentioned in said bill,' and the complainants appealed.

The statutes provide as follows:

'Stockholders of every banking company shall be held individually responsible equally and ratably and not for one another for all contracts, debts and engagements of such company to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares. Persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to any liability as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in trust funds would be, if living and competent to hold the stock in his own name.'

'On becoming satisfied from the reports furnished to him, or upon other good proof thereof, that any banking company has become insolvent and is in default, or if the directors of any banking company shall knowingly violate, or knowingly permit any of its officers, agents or servants to violate, any of the provisions of law relative to such companies, the rights, privileges and franchises shall be thereby forfeited, and the comptroller shall apply to the courts, in his own name, for the appointment of a receiver to close up the affairs of such company; and in cases of such violation, every director who participated in or assented to the same shall be held liable, in his personal and individual capacity, for all damages which the company, its stockholders or any other person shall have sustained in consequence of such violation.'

Sections 2700 and 2724, Gen. Stats. 1906.

Statutory powers expressly conferred carry with them by implication of law all consistent powers that are necessary to the effectual execution of the powers expressly conferred. State ex rel. Smith v. Burbridge, 24 Fla. 112, 5 So. 869; State v. Atlantic Coast Line R. Co., 56 Fla. 617, text, 645, 47 So. 969, 32 L. R. A. (N. S.) 639.

The statutory liability of the 'stockholders of every banking company' is that they 'shall be held individually responsible, equally and ratably and not for one another, for all contracts, debts and engagements of such company to the extent of' the par value of their stock 'in addition to the amount invested in such shares.' This added statutory liability is imposed 'equally and ratably' among the stockholders, and this liability is not given to or for the benefit of particular creditors, but 'for all contracts, debts and engagements of such company.'

The receiver is appointed 'to close up the affairs of such company.' Among 'the affairs of such company' are its 'contracts, debts and engagements'; and while the added statutory liability of the stockholders may not strictly speaking be initially an asset of the banking company, it is a source from which 'all contracts, debts and engagements of such company' may be satisfied or performed.

The stockholder's liability arises ex contractu. See Gibbs v. Davis, 27 Fla. 531, 8 So. 633, where it is held that:

'By the act of...