Murray v. Sill

• Decision Date: 24 August 1925
• Docket Number: No. 4472.,4472.
• Citation: 7 F.2d 589
• Parties: MURRAY v. SILL.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.2d 589 (1925)

MURRAY v. SILL.

No. 4472.

Circuit Court of Appeals, Ninth Circuit.

August 24, 1925.

J. B. Eldridge, of Boise, Idaho, for plaintiff in error.

Van de Steeg & Breshears, Ralph R. Breshears, and Geo. H. Van de Steeg, all of Nampa, Idaho, for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge.

Sill, as receiver of the First National Bank of Nampa, Idaho, recovered judgment against Murray for $16,000 on a stockholder's liability (Act Dec. 23, 1913, c. 6, § 23 U. S. Comp. St. § 9689) upon 160 shares of the capital stock of the bank. Murray brought writ of error.

The bank suspended business as of March 17, 1923, and turned over its affairs to the Comptroller of the Currency on March 19, 1923, and a receiver was appointed. After assessment and demand were made by the Comptroller of the Currency, Murray refused to pay, upon the ground that the depositors signed a waiver which, he contended, was a renunciation of any and all rights that the depositors had to collect on the statutory liability. The waiver came about in this way: In April, after the bank was closed, one Thompson offered, in writing, to buy all of the "assets" of the bank exclusive of notes of a certain face value and also "exclusive of the superadded stockholders' liability," and of certain other specified property. A large majority of the depositors signed and delivered to a depositors' committee a printed waiver wherein, after a specification of the substance of Thompson's offer, including the exception of the "statutory stockholders' liability," the depositor appointed certain persons to act as his agents and attorney in fact to negotiate with Thompson "in accordance with the proposition made and filed," and ratifying all acts done by his agents in negotiating such settlement, providing that the same should result in his receiving 50 per cent. of the amount of his proved claim deposited in the bank to his credit, and expressly authorizing his agents to "waive" 50 per cent. of his claim against the bank in order to effect "said" settlement. The waiver further provided: "It is understood, however, that I am to retain my proportionate interest in the proceeds of the excepted assets." At a directors' meeting at which Murray, who was also a director, was present, Thompson's offer was accepted, and the officers of the bank were directed to make the necessary transfers of all the assets "with the exceptions noted," and thereafter at a stockholders' meeting, which Murray attended, the minutes of the board meeting were read at length, and all of the acts of the board "as evidenced by the minutes as read" were considered and in all respects ratified and confirmed.

In addition to the record evidence, the court heard oral testimony bearing upon the circumstances under which the waivers were executed and the contemporaneous...