Nashua Savings Bank v. Anglo-American Land-Mortgage & Agency Co.

• Decision Date: 24 April 1901
• Docket Number: 303.
• Citation: 108 F. 764
• Parties: NASHUA SAVINGS BANK v. ANGLO-AMERICAN LAND-MORTGAGE & AGENCY CO., Limited.
• Court: U.S. Court of Appeals — First Circuit

108 F. 764

NASHUA SAVINGS BANK v. ANGLO-AMERICAN LAND-MORTGAGE & AGENCY CO., Limited.

No. 303.

United States Court of Appeals, First Circuit.

April 24, 1901

John S H. Frink, for plaintiff in error

Omar Powell (Gilbert A. Davis and Daniel L. Cady, on the brief) for defendant in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

This writ of error is to review the rulings of the circuit court in an action of assumpsit by the Anglo-American Land-Mortgage & Agency Company, Limited, a corporation of Great Britain, to recover from the Nashua Savings Bank, a New Hampshire corporation, a stockholder in the Anglo-American Company unpaid assessments upon stock. A verdict was directed for the plaintiff below, now defendant in error.

The first exception requiring consideration relates to the sufficiency of proof of the statutes of Great Britain that govern the Anglo-American Company, and also provide that 'all moneys payable by any member to the company in pursuance of the conditions and regulations shall be deemed to be a debt due from such member to the company; and in England and Ireland to be in the nature of a specialty debt.' 25 & 26 Vict. c. 89, Sec. 16. We are of the opinion that the statutes were sufficiently authenticated by the deposition of an English solicitor familiar with company law, and a managing director of the Anglo-american Company. He states under what laws the company was organized referring to them by their titles, and testifies that he produces copies of the acts, and also that 'these copies are issued by authority, being printed by her majesty's printer, and are as such as law receivable in evidence without further proof. ' We have, therefore, evidence from a competent witness not only that the documents are copies of the laws under which the company was organized, but also evidence authenticating printed copies of these laws. The witness does not, as counsel contend, simply produce certain transcripts which he says prove themselves, but states upon his own authority that they are copies of the laws, and also by his oath authenticates the documents as official copies. This proof is ample. Church v. Hubbart, 2 Cranch, 238, 2 L.Ed. 249; Ennis v. Smith, 14 How. 426, 14 L.Ed. 472; Hall v. Costello, 48 N.H. 176; Kennard v. Kennard, 63 N.H. 303; State v. Davis, 69 N.H. 350, 41 A. 267; Barrows v. Downs, 9 R.I. 446; The Pawashick, 2 Low. 142, Fed.Cas.No. 10,851.

The plaintiff therefore clearly proved that the defendant, as a stockholder, voluntarily assumed such liability as is set forth in the portion of the statute we have quoted.

The majority of the court are of the opinion that, as the record does not purport to contain all the evidence, or all the material evidence, the questions whether the circuit court erred in declining the defendant's request to direct a verdict for the defendant, and whether that court erred in directing a verdict for the plaintiff, cannot be considered. City of Providence v. Babcock, 3 Wall. 240, 244, 18 L.Ed. 31; Railroad Co. v. Cox, 145 U.S. 593, 606, 12 Sup.Ct. 905, 36 L.Ed. 829; Hansen v. Boyd, 161 U.S. 397, 16 Sup.Ct. 571, 40 L.Ed. 746; Yates v. U.S., 32 C.C.A. 507, 90 F. 57, 62.

It appears from the record that the plaintiff introduced no evidence that the plaintiff corporation was insolvent at the time of making the calls or assessments sued upon, or that the call or assessment was made for the benefit of creditors or in payment of its debts; but this statement does not cover all the purposes for which calls might be made legally, and the statement that this proof was absent does not make it appear affirmatively that other and sufficient proof was not presented. It does not appear that the call was not regularly made, and for proper purposes. The objection made upon the motion to direct a verdict that the declaration contained no averment or allegation upon what conditions the plaintiff was authorized to make such calls or assessments does not raise the question of the sufficiency of proof that the call was duly made. We are bound to assume, upon this incomplete record, that the proofs of the regularity of this call were sufficient. The necessity for applying in this trial case the rule of law that regularity of proceedings in the trial court shall be assumed until the contrary appears is shown by the fact that the learned judge, in his remarks preliminary to the direction of a verdict, referred to evidence not presented here, and stated that there was no doubt that the call for the assessment was properly proven, and also that no question was made as to the regularity of the meetings of the directors. As the majority of the court are of the opinion that we are bound to assume upon this record that due proof was made of the regularity of the corporate meetings and of the calls, we are of the opinion that the question whether we are to accord to the corporate proceedings of a foreign and alien corporation the same presumption of regularity that exists in respect to domestic corporations does not arise upon this record.

The remarks of the learned judge in directing a verdict for the plaintiff were simply explanatory of the views of fact and law that led him to take that course, and were not subject to exception. The court itself determined the issues; and the question whether it erred in so doing can be determined only upon a complete record of the evidence, or upon a record containing all material evidence. This record is not shown to be such.

We think that only two substantial questions are presented,-- the first, as to the sufficiency of the proofs of the English statutes, which we have considered; and the second, the question whether the company, in seeking to enforce the payment of calls, is restricted to the sale and forfeiture of the defendant's shares, in accordance with the law of New Hampshire. We are clearly of the opinion that it is not. The present action is not, strictly speaking, founded upon an English statute, but upon an obligation voluntarily assumed by the defendant as a stockholder. The English statute that became a part of the charter of the company defines the liability of the stockholder, but it is the act of the defendant in voluntarily assuming this liability by the purchase of its stock that is the basis of the present action. Railway Co. v. Gebhard, 109 U.S. 537, 3 Sup.Ct. 363, 27 L.Ed. 1020; Hawkins v. Glenn, 131 U.S. 329, 9 Sup.Ct. 739, 33 L.Ed. 184; Webster v. Upton, 91 U.S. 69, 23 L.Ed. 384; Relfe v. Rundle, 103 U.S. 222, 226, 26 L.Ed. 337. Though it appears by the articles of association that the company has a lien upon the shares of a stockholder, and may enforce such lien by sale or forfeiture, yet this is not the exclusive remedy; for, by the statute, which has become a part of the articles of association, and to which it has consented, the bank became liable, also, as for a debt. The company therefore has two concurrent remedies, and was strictly within its right in electing to proceed by an action at common law instead of by sale and forfeiture. If we assume that the question of the form of action properly arises upon this record, the exceptions which relate to the form of action must be overruled, since we are of the opinion that indebitatus assumpsit was the proper form of action. 2 Chit.Pl.p. 53; Gould, Pl.c. 3, Sec. 19; Pullman v. Upton, 96 U.S. 328, 24 L.Ed. 818; Mandel v. Cattle Co., 154 Ill. 177, 40 N.E. 462, 27 L.R.A. 312. The judgment of the circuit court is affirmed.

ALDRICH District Judge (dissenting). The plaintiff is an alien business company organized under what are known as the 'English Companies' Acts,' and I disagree with my associates upon the questions as to the sufficiency of the evidence to warrant a verdict, and as to what is shown by the record, and as to presumptions of evidence below not stated in the record. In this case, at the close of all the evidence, contrary to the situation in Hansen v. Boyd, 161 U.S. 397, 16 Sup.Ct. 571, 40 L.Ed. 746, cited in the majority opinion, the defendant moved the court to direct a verdict in its favor upon the pleadings and evidence in the case; and, if under such circumstances the appellate court must assume that the court below had before it sufficient evidence to justify its ruling, it can never review the question whether the evidence there was sufficient to justify a verdict for the plaintiff. Moreover it is expressly shown by the record that 'the statutes, memorandum, and articles of association, certificate of stock, and Frederick H. Ramsden's testimony constitute all the evidence bearing upon the question of the plaintiff's incorporation and organization'; and the record expressly negatives the presence of certain other proofs which I maintain were necessary and essential to plaintiff's case. So, as I view the record, it is one which purports to present all the proofs material to the question of sufficiency of evidence. The essential question here is whether there was evidence sufficient to warrant the verdict, and upon that question we must look to the record, and cannot look beyond. The motion below and the exceptions raised that question distinctly, and the case, coming here upon such exceptions based upon such a motion, called for all the evidence; and we are bound to assume that it is all here, and inquire whether, upon the evidence disclosed by the record, the verdict was warranted. I dissent upon the ground that upon the evidence below, as shown by the record, unaided by presumptions of regularity of corporate proceedings, and presumption or intendment in favor of business necessity, there is no sufficient evidence to warrant the verdict. Aside from presumption the plaintiff's case is a mere shadow, with no...