A., in order to secure the payment of his note to B., pledged to
the latter certain shares of the capital stock of a national bank
in Louisiana, with authority to sell them in default of such
payment. Default having been made, B. sold them, and in March,
1873, applied to the cashier of the bank to have them transferred
on its books. That officer refused to allow the transfer, on the
ground that A. was indebted to the bank. Before the transfer could
be enforced, the bank failed, and C. was appointed a receiver,
against whom B., Feb. 24, 1876, brought this action to recover
damages for the loss sustained by him. It does not appear that the
bank ever adopted any bylaw providing for a lien on the shares of a
stockholder indebted to it, or that A.'s debt to it had been
contracted before his stock was pledged to B.
Held:
1. That the action is not prescribed by the limitation of one
year.
2. That the cashier having been entrusted by the directors of
the bank with the transfers of stock, his refusal to permit the
transfer was the refusal of the bank.
3. That judgment having been rendered, the court below had power
to order C. to pay the claim, or certify it to the comptroller.
This is an action by the Citizens' Bank of Louisiana against
Frank F. Case, receiver of the Crescent City National Bank, to
recover damages for an alleged refusal on the part of the latter
bank to permit a transfer of two hundred and twenty shares of its
capital stock.
The petition, which was filed Feb. 24, 1876, alleges, in
substance, that the shares were pledged to the Citizens' Bank by
Lizardi & Co., to secure the payment of their note to it for
$20,000; that the act of pledge contained an authority to the
Citizens' Bank to sell and transfer the stock, for the purpose of
paying said note; that said stock was sold under the act of pledge
for $40 per share, but that the Crescent City National Bank refused
to permit the transfer thereof on its books, alleging the
indebtedness of Lizardi & Co. to it as an excuse for such
refusal; that, by such refusal, the sale of said stock was
prevented, and that before legal steps could be taken to enforce
the right of transfer, the Crescent City National Bank failed,
causing a loss to the Citizens' Bank of $8,800.
The prayer is that the receiver be ordered to recognize the
Citizens' Bank as a creditor for said sum, and that he place it
Page 100 U. S. 447
on the next tableaux of distribution for its share of the amount
already divided among creditors and in all future dividends to be
distributed.
On the 15th of March, 1876, the receiver filed an exception,
setting up two grounds of defense:
1. That the cause of action did not accrue within one year next
before the commencement of the action, as appears from the petition
filed.
2. That the petition did not disclose a cause of action.
These exceptions having been overruled, he filed an answer
reserving them, and denying all the allegations of the petitioner
except his appointment.
A verdict of the jury in favor of the plaintiff below for
$4,000, with five percent interest from March 6, 1873, having been
returned, the court rendered judgment
"that the Citizens' Bank of Louisiana do have and recover of the
Crescent City National Bank, Frank F. Case, receiver, $4,000 and
interest, &c., . . . and that Frank F. Case, receiver, do
recognize the said Citizens' Bank of Louisiana as creditor; . . .
and that he do pay the same, or certify the same to the
comptroller, to be paid in due course of administration, . . . and
that the Citizens' Bank of Louisiana do receive, before further
payment to creditors, its due proportion of dividends
pro
rata with those already paid to the creditors of the Crescent
City National Bank."
The receiver, thereupon, brought the case here.
The remaining facts are set forth in the opinion of the
Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Associations formed under the act to provide a national currency
are required to enter into articles of agreement specifying the
object of the association, and the articles may contain other
regulations, not inconsistent with the act which the association
may set fit to adopt for the conduct of their business and affairs.
Such an association may make contracts, sue and be sued, and
complain and defend in any court of law or equity
Page 100 U. S. 448
as fully as natural persons. They may also elect directors, and
the board of directors may appoint a president, vice-president,
cashier, and other officers, and define their duties. 13 Stat. 101;
Rev.Stat., sec. 5136;
Knight v. Bank, 3 Cliff. 429,
431.
Sufficient appears to show that the plaintiff bank discounted
for the firm named in the transcript their promissory note in the
sum of $20,000, payable to the order of the bank in thirty days,
and that the promisors, to insure the payment of the note, pledged
to the holders two hundred and twenty shares of the capital stock
of the bank of which the defendant is the receiver -- part standing
in the name of the debtor firm and part in the name of their senior
partner. Authority was given to the pledgees, at the time the stock
was pledged, in case the note was not paid at maturity, to sell the
shares pledged at public or private sale, the pledgeors agreeing to
sign all required transfers of the same necessary in the
premises.
Payment of the note, when it fell due, was refused, and the
pledgees of the stock, having found purchasers for the same at the
rate specified in the declaration, requested the bank of which the
defendant is the receiver for permission to transfer the stock to
the purchasers of the same, and the charge is that the bank
peremptorily refused the request on the ground that the promisors
of the note were indebted to the bank and that their stock could
not be transferred before payment of their indebtedness.
Nothing appears to show when the indebtedness of the pledgeors
of the stock was contracted to the defendant bank, but it is not
alleged that it preceded the pledge of the stock, nor is it claimed
that the defendant bank had any lien on the stock for the payment
of the alleged indebtedness.
Process was served, and the defendant bank appeared and filed a
peremptory exception to the declaration:
1. Because the supposed cause of action did not accrue within
one year next before the commencement of the suit.
2. Because the petition or declaration does not disclose any
cause of action against the defendant.
Hearing was had, and the court overruled the exception.
Proceedings now unimportant followed, when defendant again
Page 100 U. S. 449
appeared and filed an answer denying all the material
allegations of the petition. Issue being joined, the parties went
to trial, and the verdict and judgment were in favor of the
plaintiff, and the defendant excepted, and sued out the present
writ of error.
Since the cause was entered here, errors have been assigned to
the effect following:
1. That the circuit court erred in holding and instructing the
jury that the action rose
ex contractu, and that it was
not prescribed by one year.
2. That the circuit court erred in instructing the jury that the
defendant was liable for the refusal of the cashier to permit the
stock to be transferred.
3. That the circuit court erred in refusing the two prayers for
instruction presented by the defendant.
4. That the circuit court erred in ordering the receiver to pay
the amount of the judgment or to certify the same to the
comptroller.
Bylaws were adopted by the defendant bank, which provide that
the stock of the bank shall be assignable only on the books of the
bank, subject to the provisions and restrictions of the act of
Congress, and that a transfer book shall be kept, in which all the
assignments of stock shall be made. Certificates of stock signed by
the president and cashier may, as the bylaws provide, be issued to
stockholders, but the requirement is that the certificate shall
state upon the face thereof that the stock is transferable only
upon the books of the bank, the further requirement being that,
when stock is transferred, the existing certificate shall be
cancelled and returned and that new ones shall be issued.
Provision is made by the code of the state that persons are
responsible for the damage they occasion not merely by their acts,
but by their negligence, their imprudence, and their want of skill,
which is not different in its application to this case from the
rule which prevails at common law. Rev.Code La., arts. 2315,
2316.
Whenever an agent violates his duties or obligation to his
principal, and loss ensues to the principal, he is responsible
therefor, says Judge Story, and is bound to make a full indemnity.
Story, Agency (6th ed.), sec. 217
a.
Action for injurious words, whether verbal or written, and
Page 100 U. S. 450
those for damages caused by animals, or resulting from offenses
or
quasi-offenses are prescribed by one year in the
jurisprudence of the state. Rev.Code La., sec. 3536. And the first
proposition of the defendant is that the circuit court erred in
holding that the action in this case was not barred by that article
of the code.
Causes of action resulting from offenses or
quasi-offenses are barred by the lapse of one year, and
the defendant bank contends that the cause of action set forth in
the petition in this case falls within the one or the other of
those designations. Argument to show that it was not an offense is
certainly unnecessary, as the proposition, if made, would be wholly
without merit, from which it follows that the theory must be wholly
rejected unless the act for which the damages are claimed in this
case can properly be regarded as a
quasi-offense within
the meaning of that provision.
Even suppose the terms of the provision apply to such a cause of
action, it is by no means certain that the admission, if made,
would benefit the defendant, as the supreme court of the state has
decided that prescription in respect to a promissory note is
interrupted so long as the holder is in possession of collaterals
pledged by the maker to secure its payment.
Blanc v.
Hertzog, 23 La.Ann. 199.
Stocks pledged as security for a loan, the same court holds,
constitute a standing acknowledgment of the debt which interrupts
prescription during the time the securities pledged remain in the
possession of the creditor.
Police Jury v. Duralde, 22
id. 107;
Citizens' Bank v. Knapp, id., 117.
Suppose, however, the claim for damages resulting from the
refusal of the bank to transfer the stock must be considered as a
cause of action wholly distinct from the note and the collaterals,
then it becomes necessary to examine the objections taken by the
plaintiff bank to the validity of the defense of prescription.
Coming to that defense, the plaintiff bank contends that the cause
of action does not fall within the rule of prescription by the
lapse of a year because the act which gives rise to the claim was
neither an offense nor a
quasi-offense within the meaning
of that article of the Revised Code. Precisely the same question
was presented to the supreme court
Page 100 U. S. 451
of the state, and was decided by that court adversely to the
views of the defendant.
Campbell v. Miltenberger, 26
id. 72.
Compensation was claimed by the plaintiff in that case for
damages occasioned by the defective and improper construction of a
fence around his dwelling and premises by the defendant. The
prescription of one year was pleaded, setting up the same article
of the code, but the court decided that the rule of prescription of
one year only applied to cases arising from damages caused by the
commission of an offense or
quasi-offense, and overruled
the defense as inapplicable to the case.
Actions arising under the article referred to survive, in case
of the death of the injured party, for the space of one year, in
favor of the minor children and widow of the deceased. Rev.Code,
art. 2315.
Personal actions are not in general prescribed in that state
short of ten years, even when the creditor is present, nor short of
twenty years if he be absent.
Id., art. 3544.
Many decisions have been made in the state upon the subject, but
a few of each of the classes in question will be sufficient to show
that the act which gave rise to the cause of action in this case
cannot be regarded either as an offense or
quasi-offense
within the rules of decision adopted in that state.
Willful trespass in cutting wood upon another man's land and
refusing to account for the same when accused of the act was held
to be prescribed by that provision.
Whitehead v. Dugan, 25
La.Ann. 409.
Where damages were claimed for the illegal and wrongful seizure
of the defendant's property by virtue of an execution against
another party whereby much of the property was lost or destroyed,
it was held that the claim for damages fell within the category of
that rule.
De Lizarde v. The New Orleans Canal and Banking
Co., 25
id. 414.
Claim for injuries occasioned by a railroad to individuals, or
for the destruction of domestic animals, are held to fall within
the same category as charges of
quasi-offenses. But the
right to recover of a banker for failure to protest a note, whereby
the endorser is charged, is only prescribed by ten years.
Eichelberger v. Pike, 22
id. 142; Rev.Code,
3544.
Page 100 U. S. 452
So an action against a telegraph company for loss on goods by a
mistake in the message may be maintained unless prescribed by ten
years.
La Grange v. Southwestern Telegraph Co., 25 La.Ann.
383.
Cases in great number of a like character might be cited, but it
must suffice to refer to one other, which seems to be decisive of
the point.
Percy v. White, 7 Rob. (La.) 513. It was an
action by the stockholders against the directors to recover damages
for losses sustained through their negligence, fraud, and
mismanagement, and the court held that it was not prescribed short
of ten years from the acts which were the subject of complaint.
Such a case everyone must admit is much stronger than the case at
bar, as the directors were directly charged as wrongdoers and as
guilty of negligence, fraud, and mismanagement in the performance
of their official duties.
Opposed to that the defendant refers to the case of
Taylor
v. Graham, as being inconsistent with the prior case, but the
court is not inclined to adopt that view, as the notary is a public
officer and the charge against him was that of gross negligence in
the performance of his official duty.
Taylor & Raddin v.
Graham, 15 La.Ann. 418.
Promptitude and fidelity are expected of notaries in giving
notice of protest in all jurisdictions where that duty is required
of those officers, and it cannot be doubted that the court regarded
the charge as imputing a
quasi-offense. In the case at
bar, the demand of transfer was made by the plaintiff bank in
behalf of the purchaser of the stock, and the cashier answered that
by order of the directors he could not allow the transfer, as the
holder of the certificates was indebted to the bank. Instructions
from the directors were obligatory upon the cashier, who in point
of fact assumed no responsibility. He acted by order of the
directors, who for that purpose constituted the bank, it appearing
that he merely obeyed their instructions not to transfer any stock
whose owner had discounted notes in the bank unpaid.
Evidence was introduced by the plaintiffs tending to show that
the cashier of the defendant bank was the officer entrusted by the
directors with the transfer of stock, and they also gave
Page 100 U. S. 453
in evidence the note secured by the pledge of the stock, but
they gave no other evidence to show that the note was due and
unpaid, or that any effort had been made to collect the same of the
maker, or that the maker was insolvent, nor was any evidence
introduced to show that any thing had occurred to interrupt or
suspend prescription.
Both parties having closed, the defendant bank requested the
court to instruct the jury that the defendant is not liable for the
refusal of its cashier or other officer to transfer the stock
unless he acted in the premises under the authority of the charter
or bylaws of the bank or pursuant to some general or special
authority derived from the corporation through its board of
directors, but the court refused to give the requested instruction,
and instructed the jury that if they found that a person
representing the plaintiff, having in his possession the
certificates of the stock, sent to the defendant bank during the
ordinary hours of business and found there the cashier, and that he
was the officer customarily entrusted by the directors to make such
transfer of stock, and that he, the person having the certificates,
demanded the transfer of the cashier, at the same time offering to
delivery up the old certificate, and that the cashier refused to
deliver the transfer, upon the ground that the owner was indebted
to the defendant bank, that such a refusal was a refusal of the
bank.
Compare the instruction given with that requested, and it will
be seen that the introduced part of the request is fully given in
the instruction given to the jury. They were told that if they
found that a person representing the plaintiff, having the
certificates of the shares in his possession, went to defendant
bank and there found the cashier, and that he was the officer
customarily entrusted by the directors to make the transfers, which
was fully equivalent to the request, though stated in the
affirmative and not in the negative form. Unless the jury found all
those facts to be true, they were not authorized to find a verdict
for the plaintiff, and inasmuch as the verdict returned was in
favor of the plaintiff, it must be assumed by the appellate court
that the entire theory of fact involved in the instruction is
proved.
Suppose that is so, then it is plain that the whole
instruction
Page 100 U. S. 454
is correct, as it is not controverted that the demand was
regularly made, nor that the cashier refused to allow the
transfer.
Cashiers of a bank are held out to the public as having
authority to act according to the general usage, practice, and
course of business conducted by such institutions, and their acts,
within the scope of such usage, practice, and course of business,
will in general bind the bank in favor of third persons "possessing
no other knowledge."
Minor v. Mechanics' Bank of
Alexandria, 1 Pet. 46.
Neither the public at large nor third persons usually have any
other knowledge of the powers of a cashier than what is derived
from such usage, practice, and course of business, and it would be
the height of injustice to hold that the bank as the principal to
the cashier may set up their secret and private instructions to the
officer, limiting his authority in respect to a particular case,
and thus to defeat his acts and transactions as such agent, when
the party dealing with him had not and could not have any notice of
the secret instructions. Story, Agency (6th ed.), sec. 127.
Such an officer is
virtute officii entrusted with the
notes, securities, and other funds of the bank, and is held out to
the world by the bank as its general agent for the transaction of
its affairs, within the scope of authority, evidenced by such
usage, practice, and course of business.
Where the bylaws of a bank require that the transfer of the
shares of the capital stock shall be entered in the books of the
bank, the entry is usually made by the cashier, and the evidence
introduced by the plaintiff tended to show that the practice of the
defendant bank was in accordance with the general. usage. Evidence
to that effect having been introduced, it was certainly competent
for the court to submit it to the jury, and the judge might have
instructed them that in view of that evidence, they would be
warranted, if they believed the testimony, in finding that the
cashier had the authority to make the transfer.
Wild v.
Bank, 3 Mass. 505.
Official acts may be performed by a cashier which constitute the
ordinary and customary functions of such an officer, and persons
dealing with the bank are warranted in believing that the cashier
is duly authorized to perform any customary duty
Page 100 U. S. 455
falling within the scope of that category, and may to that
extent hold the bank responsible, as if he was so authorized,
however the fact may be, save only in cases where his want of
authority is affirmatively proved and actual knowledge of that fact
is brought home to the third party.
Concede that and it follows that the cashier, unless the charter
or bylaws of the bank forbid it, may properly make or superintend
the transfer of shares of the capital stock, and that a person
showing a
prima facie legal right to claim such a transfer
to himself may demand it from that officer or any other principal
officer left in general charge and superintendence of the bank
during the regular hours appointed by the bank for the transaction
of banking business.
Smith v. Northampton Bank, 4 Cush.
(Mass.) 1, 11; Morse on Banking (3d ed.), pp. 155, 177.
Authorities to show that the acts of a cashier or other officer
of a bank, within the scope of the general usage, practice, and
course of business of banking institutions, are binding on the
corporation in favor of third persons transacting business with it,
are quite numerous, provided it appears that the persons dealing
with the officer did not know at the time that he was transcending
his authority.
Lloyd v. The West Branch Bank, 15 Pa.St.
172;
The Bank of Vergennes v. Warren, 7 Hill (N.Y.) 91;
Franklin Bank v. Steward, 37 Me. 519, 522.
It may be fairly presumed, says Chancellor Walworth, that the
principal officer or clerk in attendance at the bank during the
usual hours of business is authorized to permit the transfer of
shares when the case presented is one proper to be allowed.
The
Commercial Bank of Buffalo v. Kortright, 22 Wend. (N.Y.) 348,
350.
Assumpsit in the form of a special action on the case will lie
against a corporation for improperly refusing to make a transfer of
shares of capital stock, in the name of the party injured by the
refusal.
Kortright v. The Commercial Bank of Buffalo, 20
id. 91; Angell & Ames, Corporations (9th ed.), sec.
381.
Enough has already been remarked to show that it is immaterial
whether the declaration or petition is regarded as an action
ex
contractu or
ex delicto, as it is clear that it is
not barred by the prescription of one year, so that the point
in
Page 100 U. S. 456
any view cannot avail the defendant bank.
The Pontchartrain
Railroad Co. v. Heirne, 2 La.Ann. 129;
Ware v. Barataria
Co., 15 La. 169;
Etting v. The Commercial Bank of New
Orleans, 7 Rob. (La.) 459.
No further remarks are required to show that the refusal of the
court to grant the first prayer of the defendant was not error, in
view of the instruction given, as that given was quite as favorable
to the defendant as the law would allow. Nor is there any just
ground of complaint on the part of the defendant that the court
refused to give the third request. Instead of giving that, the
court instructed the jury that in order to enable the plaintiff to
recover, they, the jury, must be satisfied from the evidence that
the debt of the owners of the stock was still due and unpaid, and
that if that has not been established the jury must find for the
defendant.
Comment upon these instructions is needless, as it is clear that
the verdict finds that the note is still unpaid.
Exceptions not assigned for error will be passed over without
remark as not necessarily reexaminable in this Court.
Nothing appears in the case to show that the defendant bank ever
adopted any bylaw providing for a lien on the shares of a
stockholder in case of his indebtedness to the bank, nor is it even
shown in this case that the debt, if any, of the owner of the
shares to the bank was contracted before the stock was pledged to
the plaintiff, nor is there anything given in evidence by the
defendant to show that it was inequitable for the plaintiff to
claim the benefit of the collaterals which the bank held to secure
the payment of the note they discounted for the owners of the
stock.
Beyond all doubt, the validity of their debt is established by
the verdict and judgment, and if so it requires neither argument
nor authorities to show that the order given by the circuit court
to provide for the payment of the amount recovered was proper and
correct.
Judgment affirmed.