Saussy v. Liggett

• Decision Date: 08 March 1918
• Citation: 75 Fla. 412,78 So. 334
• Parties: SAUSSY v. LIGGETT.
• Court: Florida Supreme Court

78 So. 334

75 Fla. 412

SAUSSY v. LIGGETT.

Florida Supreme Court

March 8, 1918

Appeal from Circuit Court, Duval County; Daniel A. Simmons, Judge.

Suit by Fulton Saussy, as receiver of the Commercial Bank of Jacksonville, against R. H. Liggett. From an order dismissing the bill, plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

The rule is that when a case is heard on bill and answer all the averments of the answer are taken as true.

The liability of a stockholder of a banking company is ex contractu.

Double liability of a stockholder of a banking corporation organized under the laws of this state depends upon the terms of the statutes creating it, and, as such statutes are in derogation of the common law, they cannot be extended beyond the words used.

By a special act of the Legislature, namely chapter 4272, Laws 1893, approved May 9, 1893, a banking corporation was created and granted a special charter containing a provision 'that the stockholders of said corporation shall not be individually liable for the debts of the company, except to the extent of any unpaid subscription to the [said] capital stock thereof.' Subsequently proceedings were taken under authority of section 2727, General Statutes of 1906, with a view to converting said corporation into a banking company under the general banking law (Gen. St. 1906, ss 2693-2736). Held, applying the rule stated in the headnote immediately preceding, that such alleged conversion did not have the legal effect of placing upon the stockholders the double liability imposed by section 2700, General Statutes of 1906 upon stockholders in banking companies organized under the general banking law, since the statute authorizing the conversion does not purport to, and does not in fact, provide that such shall be its effect upon the stockholders.

COUNSEL Odom, Crawford & Butler, of Jacksonville, for appellant.

John C Cooper & Son, of Jacksonville, for appellee.

OPINION

WEST J.

This is a suit brought by the receiver of the Commercial Bank of Jacksonville against R. H. Liggett, one of the stockholders of the bank, and has for its object the enforcement of an alleged obligation and liability of said stockholder to said bank in an amount equal to the par value of the several shares of stock owned and held by him in addition to the amount invested in such shares.

We shall not set out nor recite the allegations of the bill of complaint, but it will be assumed that the bill sufficiently stated the cause of action relied on by complainant.

Answer was filed by the defendant, and the case was heard on bill and answer. The answer, omitting formal parts and exhibits is as follows:

'(1) That the said Commercial Bank of Jacksonville is a corporation created by special act of the Legislature of the state of Florida, approved May 9, 1893, under the name of Savings & Trust Bank of Florida (chapter 4272 of the Laws of Florida) reference to which is had and which is made a part of this answer as fully as though set forth therein in terms; that said act was amended by chapter 4459 of the Laws of Florida, approved May 28, 1895, reference to which is had and which is also made a part hereof as fully as though set forth herein in terms; that by chapter 4459 said corporation was given leave to change its name in the manner prescribed by the general incorporation law of Florida, and in pursuance of said authority said corporation changed its name to that of Commercial Bank of Jacksonville.

'(2) This defendant, further answering, says that section 13 of said special charter, chapter 4272, provides as follows:

"That the stockholders of said corporation shall not be individually liable for the debts of the company, except to the extent of any unpaid subscription to the [said] capital stock thereof.' And the power to modify this provision of law by action taken under the provisions of any general law was expressly excluded by section 24 of said act of May 9, 1893, which provides as follows:

"That all laws and parts of laws conflicting with the provisions of this act * * * are hereby repealed.'

'(3) Further answering, this defendant says that some time prior to 1899 this defendant purchased from the said Commercial Bank 37 shares of its capital stock, which are the shares referred to in the bill of complaint, and paid cash therefor; that for some of said stock defendant paid $100 per share, and for the balance he paid an amount considerable in excess of $100 per share; that certificates for these 37 shares of stock were issued to defendant prior to 1899, and that respondent had owned and held said certificates of stock continuously from that date to the present time, and still owns and holds the same.

'(4) Further answering, this defendant says that he has not received a dividend or a return of any kind from said shares of stock since the year 1907, and that to the best of defendant's recollection he had received but two dividends on said stock since 1899.

'(5) Further answering, this defendant, upon information and belief, says that some time prior to April 16, 1912, the comptroller of the state of Florida notified the officers of said bank that they must surrender the said special charter and incorporate under the general banking law of the state of Florida, and in compliance with this demand certain shareholders of said Commercial Bank, who owned 803 shares out of a total of 1,000 shares of the capital stock of said bank, met together on April 9, 1912, and attempted the adoption of the certain resolution set forth in 'Exhibit A' hereto attached, and said shareholders signed a written consent to said meeting on the record thereof and a written consent that 'the action of said meeting should be valid in all respects.'

'(6) This defendant, further answering, says that in pursuance of the resolution adopted at said meeting, certain directors of the Commercial Bank filed with the comptroller of the state of Florida an application to have the said Commercial Bank organized into a banking company under the general banking law of Florida, a copy of which application is filed as part hereof and marked 'Exhibit B'; that thereupon the comptroller of the state of Florida, under his official hand and seal, issued and delivered to said directors a certain document, a copy of which is filed as part hereof and marked 'Exhibit C.'

'(7) Further answering, this defendant avers that said meeting of April 9, 1912, was not an annual or regular meeting of shareholders, and that no notice was given to shareholders of the time and place or object of said meeting except to those actually participating; that defendant has been a nonresident of Florida since 1902, and had no notice of said meeting, and had no knowledge of the action taken at said meeting or of the said application to the comptroller to issue a charter under the general banking law, or of the said certificate of said comptroller, until the month of May, 1915.

'(8) Further answering, this defendant says that some time prior to January 1, 1913, and while absent from the state of Florida, he observed in a newspaper report or notice of some action being taken by the officers or shareholders of the Commercial Bank to amend the charter of the bank so as to conform it to the general banking law, but this defendant is unable to recall the time or nature of the said report more definitely than here stated.

'This defendant further avers that he was in the state of Florida during the period intervening between January 5, 1913, and February, 1, 1913, and that during that time he inquired of Herbert Race, president of the Commercial Bank, concerning said report, and that said Race informed defendant that they...