Wade v. Mutual Building & Loan Ass'n

• Decision Date: 17 October 1928
• Docket Number: 254.
• Parties: WADE, Insurance Com'r, v. MUTUAL BUILDING & LOAN ASS'N.
• Court: North Carolina Supreme Court

145 S.E. 18

196 N.C. 171

WADE, Insurance Com'r, v. MUTUAL BUILDING & LOAN ASS'N.

No. 254.

Supreme Court of North Carolina

October 17, 1928

Appeal from Superior Court, Wake County; Cranmer, Judge.

Receivership proceeding by the State, on the relation of Stacey W. Wade Insurance Commissioner, against the Mutual Building & Loan Association, wherein John G. Bickle filed a claim. From a judgment affirming an order of the permanent receiver disallowing the claim, claimant appeals. Affirmed.

Damages are not recoverable against receiver for association's breach of contract of employment of secretary.

This action was begun on August 13, 1927. Upon the allegations of the complaint, which was duly verified, the relator, as insurance commissioner of North Carolina, prayed judgment (1) that defendant, its officers and agents, be enjoined from further proceeding with its business, and from interfering in any way with the assets and property of defendant, except to account for the same, and (2) that a receiver of said defendant be appointed to take possession of all its assets and property, to the end that the same may be administered to the best interest of the creditors and shareholders of defendant association.

Upon a hearing duly had on August 13, 1927, without objection on the part of the defendant, it was ordered, adjudged, and decreed by the court:

"That said Mutual Building & Loan Association, its agents officers, and employés, be and they are hereby enjoined from carrying on any further business, and from interfering in any way with the assets and property of said association, except to account for and turn over the same to the temporary receiver herein appointed."

In said order, a temporary receiver of defendant, Mutual Building & Loan Association, was appointed. The said temporary receiver at once qualified and took into his possession all the assets and property of defendant, and thereafter duly accounted for same to the permanent receiver, who was appointed at a hearing, had upon an order to show cause to the contrary, on September 5, 1927. The said permanent receiver, since its appointment and qualification, has been and is now engaged in the administration of the assets and property of defendant association, under the orders of the court, and as therein directed. The defendant association ceased to do business prior to August 15, 1927.

On March 21, 1928, within the time allowed for filing claims John G. Bickle filed with the permanent receiver his claim against defendant association. This claim was for damages resulting from a breach of contract by defendant, by which said defendant had employed the said John G. Bickle as its secretary, at an annual salary of $4,000, to begin on August 15, 1927, and to continue for one year thereafter. Claimant alleges that on August 15, 1927, he was ready, willing, and able to perform his contract with defendant, but that defendant has breached its contract with him by failure to perform the same. He claims as damages for such breach the amount agreed upon as his salary, less such sums as he has been able to earn since the date of the breach, to wit, August 15, 1927, and less such sums as he shall be able to earn during the year which will expire on August 15, 1928.

The claim was disallowed by the permanent receiver. Claimant thereupon filed exceptions to the action of the said receiver, and appealed to the judge of the superior court, assigning as error the refusal of the receiver, upon the facts which the evidence tended to show, to allow his claim. From judgment approving the action of the permanent receiver with respect to said claim, and affirming its order, disallowing the same, John C. Bickle, as claimant, appealed to the Supreme Court.

Manning & Manning, of Raleigh, for appellant.

...