Robbins v. Mitchell
| Decision Date | 27 October 1939 |
| Docket Number | No. 9112.,9112. |
| Citation | 107 F.2d 56 |
| Parties | ROBBINS v. MITCHELL et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas A. E. Lally and John J. Lally, both of Spokane, Wash., for appellant.
James A. Brown and B. H. Kizer of Graves, Kizer & Graves, both of Spokane, Wash., for appellees.
Before WILBUR, HANEY, and HEALY, Circuit Judges.
In January, 1929, the Exchange National Bank of Spokane, a national banking association, was declared insolvent by the Comptroller of the Currency. At that time, appellee Samuel A. Mitchell was the owner of 123 shares of the capital stock of the association of the par value of $100 per share. Pursuant to an assessment levied by the comptroller, Mitchell became subject to the super-added statutory liability in the amount of $12,300. He paid to the receiver of the association the sum of $2,000 in cash on account of this liability, and thereafter, about July 15, 1930, for the purpose of securing the payment of the remainder, made and delivered to the then receiver his note and mortgage in the sum of $11,280.50. His wife joined in the execution of these instruments. During the period of the receivership Mitchell made payments on the note aggregating $1,100.
In July, 1934, the receiver was succeeded by Thomas A. E. Lally, who continued to act as receiver and liquidator of the association until the summer of 1936, at which time Lally wound up the receivership, paid all depositors and creditors of the association, both principal and interest in full, paid all expenses of the receivership, and redeemed and paid all circulating notes and currency. About September 16, 1936, the receiver was discharged in the manner provided by law, and appellant Robbins was elected as statutory agent for the shareholders. Upon the election and confirmation of Robbins, the receiver turned over to him all of the property and assets of the association. Included were appellees' note and mortgage.
The suit is on the note and mortgage. It was commenced by the receiver in June, 1936, and in November of that year appellant was substituted as plaintiff. The court gave judgment in favor of the appellees, finding, in addition to the foregoing, that the instruments sued upon did not constitute a pledge; and that upon the redemption and payment in full of all the obligations of the association and of the receivership, as previously indicated, the consideration for which the note and mortgage were given failed in its entirety. The court concluded that appellant was not entitled to contribution or subrogation, and that neither the liability of Mitchell nor the instruments given to secure it became an asset of the association.
It was disclosed on the trial that of the 165 shareholders of the bank, 131 had paid their assessments in full, 6 had obtained compromises, and 28 had paid in part or not at all. On the appeal it is contended that the note and mortgage were not given solely to secure the payment of Mitchell's statutory liability, but also to secure the payment to the other shareholders of any amounts to which they might become entitled by way of contribution; and that this security was part of the assets which appellant, as shareholders' agent, was required to liquidate for the...
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...there can be no doubt. Dunn v. O'Connor, 67 App.D.C. 76, 89 F.2d 820, 826; Greaney v. Deitrick, 1 Cir., 103 F.2d 83, 88; Robbins v. Mitchell, 9 Cir., 107 F.2d 56, 57; Nieman v. Bethlehem Nat. Bank, 3 Cir., 113 F.2d 717, 718; Frank v. Giesy, 9 Cir., 117 F.2d 122, 126. These cases not only ho......
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