Tunnicliffe v. Noyes

• Decision Date: 06 June 1931
• Citation: 101 Fla. 794,135 So. 505
• Parties: TUNNICLIFFE v. NOYES.
• Court: Florida Supreme Court

135 So. 505

101 Fla. 794

TUNNICLIFFE v. NOYES.

Florida Supreme Court, Division A.

June 6, 1931

Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by W. H. Tunnicliffe, as receiver of the First American Bank & Trust Company, against H. F. Noyes. Judgment for defendant and plaintiff brings error.

Affirmed.

COUNSEL

Bussey, Johnston, & Lilienthal, of West Palm Beach for plaintiff in error.

Raymond S. Yeomans, of West Palm Beach, for defendant in error.

OPINION

BUFORD C.J.

The writ of error in this case is to review the judgment of the circuit court in favor of the defendant, who is defendant in error here, against the plaintiff, in his capacity as receiver of First American Bank & Trust Company, a banking corporation with its principal place of business in Palm Beach county, Fla.

Demurrer having been sustained to the declaration, and the plaintiff having refused to amend, final judgment was entered against the plaintiff in favor of the defendant.

We need discuss only two questions presented by the assignments of error. The main question presented is whether or not a receiver appointed by the comptroller was authorized to determine that the bank was insolvent, and to make an assessment against the stockholders of the bank, and particularly against the defendant, to the extent of the par value of the stock.

The declaration alleged in this regard that the defendant was a stockholder in the bank, being the owner of five shares of the capital stock of the bank of the par value of $100 per share. That the plaintiff was on a certain date prior to the institution of the suit appointed by the comptroller as receiver of the bank and 'that the plaintiff, acting within the scope of his authority as Receiver of said bank and under and by direction of the Honorable Ernest Amos, as Comptroller of the State of Florida, on the 7th day of August, 1928, having found and determined that said bank was insolvent, did further find and determine that its stockholders, including the defendant, should be held individually responsible, equally and ratably and not one for another, for all contracts, debts and engagements of said bank, to the extent of the amount of their stock therein at the par value thereof in addition to the amount invested in such shares, and further found and determined that it would be necessary to, and, having so found and determined, did make an assessment against the stockholders of said bank, including the defendant, in the sum of five hundred thousand dollars ($500,000.00), an amount equal to the par value of said capital stock in addition to the amount invested, and that said sum should be and by said assessment was divided among the stockholders of said bank equally and ratably, and not one for another, to the extent of the amount of the par value of their stock in addition to the amount invested in such shares, and plaintiff, as Receiver as aforesaid, did make an assessment against each stockholder, including the defendant, equal to the par value of the stock owned by each of the said stockholders, including the defendant, and the plaintiff did assess against said defendant the sum of five hundred dollars, being the amount of the par value of his stock, and being his proportionate share of the entire assessment of five hundred thousand dollars so assessed against all stockholders equally and ratably and not one for another, and to the extent of the amount of the par value of the stock owned by each.'

It is the contention of the plaintiff in error that under the provisions of section 4162, Rev. Gen. St. 1920, section 6102, Comp. Gen. Laws, 1927, the receiver is authorized to do those things which the declaration alleges that he did do.

Section 4128, Rev. Gen. St. 1920, section 6059, Comp. Gen. Laws 1927, provides 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.'

The matter of determining the question of the solvency or insolvency of the bank would devolve upon the comptroller.

Mr. Clark, in his work on Receivers, vol. 2 (2d Ed.) § 895, says:

'The power to adjudicate that a national bank is insolvent, and to appoint a receiver thereof, and to levy assessments on the stockholders and to order their collection is vested in the Comptroller of the Currency.'

In Chavous v. Gornto, 89 Fla. 12, 102 So. 754, 755, this court, in an able opinion prepared by Mr. Justice West, said:

'The doctrine is settled that the liability of stockholders in a banking company for its obligations is primarily contractual, and any acquisition of the stock implies assent of the owner to the statutory conditions under which the corporation is organized. McNeill v. Pace, 69 Fla. 349, 68 So. 177; Bryan v. Bullock, 84 Fla. 179, 93 So. 182; Richmond v. Irons, 121 U.S. 27, 7 S.Ct. 788, 30 L.Ed. 864; Carrol v. Green, 92 U.S. 509, 23 L.Ed. 738; Aldrich v. McClaine, 106 F. 791, 45 C. C. A. 631; Howarth v. Angle, 162 N.Y. 179, 56 N.E. 489, 47 L. R. A. 725.

'The statute of this state is substantially the same as the statute fixing the liability of shareholders in National Banking Associations, in effect since 1864. Section 5151, U.S. Rev. Stats. [12 USCA § 63]. Under the federal statute it has been uniformly held that an order of the comptroller, acting within his authority, directing an assessment, is conclusive upon stockholders of the bank, and cannot be controverted by them in any defense to an action based upon such assessment. Aldrich v. Campbell, 97 F. 663, 38 C. C. A. 347; Deweese v. Smith, 106 F. 438, 45 C. C. A. 408, 66 L. R. A. 971, and note; Bushnell v. Leland, 164 U.S. 684, 17 S.Ct. 209, 41 L.Ed. 598; United States v. Knox, 102 U.S. 422, 26 L.Ed. 216; National Bank v. Case, 99 U.S. 628, 25 L.Ed. 448; Casey v. Galli, 94 U.S. 673, 24 L.Ed. 168; Kennedy v. Gibson, 8 Wall. 498, 19 L.Ed. 476.

'In Kennedy v. Gibson, supra, the reason for this rule is stated as follows: 'The receiver is...