To a bill in equity by a receiver of a national bank to recover
an assessment made by the Comptroller of the Currency to the amount
of the par value of the shares formerly owned by one of the
stockholders, defendant pleaded the statute of limitations. The
statute provided that actions upon contracts in writing should be
brought within five years, but that actions brought upon contracts
not in writing or upon liabilities created by statute should be
brought within four years.
Held: that a bill to recover
the assessment in question was not brought upon a contract in
writing, but upon an implied contract not in writing, or upon a
liability created by statute, and that the suit was barred.
This was a bill in equity originally filed May 20, 1898, in the
Circuit Court for the District of Nebraska, by Kent K. Hayden,
receiver of the Capital National Bank of Lincoln, Nebraska (of whom
the present appellant is the successor in office), against David E.
Thompson, to recover defendant's proportion of an assessment upon
the stockholders of the bank to the amount of the par value of
their shares. The bank failed on January 23, 1893, and a receiver
was shortly thereafter appointed. On June 10, 1893, the Comptroller
of the Currency ordered the assessment, which was made payable July
10, 1893.
The bill alleged Thompson to have been the owner of 210 shares
of the capital stock, which he had acquired upon subscription to
such stock and as a part of the original issue; that he, knowing
the bank to be in a failing condition and practically insolvent,
and in anticipation of its approaching failure, had sold and caused
such stock to be transferred to certain irresponsible parties, and
that such transfer was made with intent to defraud the bank, its
depositors and creditors.
Defendant demurred upon the ground that it appeared by the bill
that the cause of action was barred by the statute of
Page 184 U. S. 72
limitations. The demurrer was sustained, the bill amended,
another demurrer interposed and sustained, and the bill dismissed.
An appeal was taken to the circuit court of appeals, which affirmed
the judgment of the circuit court.
MR. JUSTICE BROWN delivered the opinion of the Court.
This bill is founded upon Rev.Stat. § 5151, which declares
that
"the shareholders of every national banking association shall be
held individually responsible, equally and ratably, and not one for
another, for all contracts, debts, and engagements of such
association to the extent of the amount of their stock therein at
the par value thereof, in addition to the amount invested in such
shares,"
etc. By § 5234 the Comptroller of the Currency is authorized to
appoint a receiver of insolvent banks, who "may, if necessary to
pay the debts of such association, enforce the individual liability
of the stockholders."
The case turns upon the applicability of the state statute of
limitations, which, so far as it is material, reads as follows:
"SEC. 5. Civil actions can only be commenced within the time
prescribed in this title after the cause of action shall have
accrued."
"SEC. 10. Within five years, an action upon a specialty, or any
agreement, contract, or promise in writing, or foreign
judgment."
"SEC. 11. Within four years, an action upon a contract not in
writing, express or implied; an action upon a liability created by
statute other than a forfeiture or penalty."
As the cause of action in this case accrued on July 10, 1893,
when the assessment was made payable,
Hawkins v. Glenn,
131 U. S. 319;
Glenn v. Marbury, 145 U. S. 499;
Thompson v. German Insurance Company, 76 F. 892;
Van
Pelt v.
Page 184 U. S. 73
Gardner, 54 Neb. 701, and the action was begun on May
20, 1898, more than four but less than five years thereafter, the
case really turns upon the question whether the action is upon a
"contract or promise in writing," or "upon a contract not in
writing, express or implied," or "upon a liability created by
statute." If the cause of action be upon a written contract, the
action was brought in time. If upon a contract not in writing or a
statutory liability, the statute of limitations is a complete
bar.
Used in this connection and as distinguished from a contract not
in writing, express or implied, we think it entirely clear that
section 10 contemplates an action between the immediate parties or
their privies to a written contract, and that the only contract
covered by that definition in this case is the one arising from the
allegation of the bill that Thompson was the owner of 210 shares of
the original capital stock, and "that he acquired the same upon
subscription to such capital stock," and by a receipt of
certificates for such shares. The only contract to be gathered from
this allegation is one between the bank, on the one hand, and the
defendant, on the other, by which the latter agreed to take and pay
for a certain number of shares and the former agreed to issue
certificates to him for the same. Had the action been brought upon
this contract -- as, for instance, by the bank to recover an unpaid
assessment upon the original shares -- the case would have fallen
within section 10, and the suit might have been brought within five
years.
But there was no contract in writing with the creditors or
depositors of the bank, and none with the bank itself, to which the
receiver could be said to be a privy, except to pay for the stock
as originally issued. Granting there was a contract with the
creditors to pay a sum equal to the value of the stock taken, in
addition to the sum invested in the shares, this was a contract
created by the statute, and obligatory upon the stockholders by
reason of the statute existing at the time of their subscription;
but it was not a contract in writing within the meaning of the
Nebraska act, since the writing -- that is, the subscription --
contained no reference whatever to the statutory obligation and no
promise to respond beyond the amount of the subscription. In
Page 184 U. S. 74
none of the numerous cases upon the subject in this Court is
this obligation treated as an express contract, but as one created
by the statute and implied from the express contract of the
stockholders to take and pay for shares in the association.
Carrol v. Green, 92 U. S. 509,
92 U. S. 512;
Terry v. Little, 101 U. S. 216;
First National Bank v. Hawkins, 174 U.
S. 364;
Matteson v. Dent, 176 U.
S. 521;
Whitman v. Oxford National Bank,
176 U. S. 559.
While section 10 does not use the words "express contract," but
the words "contract or promise in writing," we think that, taken in
connection with section 11, which is confined to contracts not in
writing, express or implied, express contracts are primarily and
principally intended by the earlier section. These are defined to
be those contracts in which the terms of the agreement are fully
and openly incorporated at the time the contract is entered into,
while implied contracts are such as arise by legal inference and
upon principles of reason and justice from certain facts, or where
there is circumstantial evidence showing that the parties intended
to make a contract. 2 Black.Com. 443. As contracts for subscription
to stock contain no stipulation with reference to the rights of
creditors and depositors, it is clear that such rights can only be
asserted upon the theory that the subscriber impliedly bound
himself to respond to any liability arising indirectly from his
contract of subscription.
Whether the promise raised by the statute was an implied
contract not in writing or a liability created by statute it is
immaterial to inquire. For the purposes of this case, it may have
been both. The statute was the origin both of the right and the
remedy, but the contract was the origin of the personal
responsibility of the defendant. Did the statute make a distinction
between them with reference to the time within which an action must
be brought it might be necessary to make a more exact definition;
but, as the action must be brought in any case within four years,
it is unnecessary to go farther than to declare what seems entirely
clear to us, that it is not a contract in writing within the
meaning of section 10 of the Nebraska act.
Hawkins v. Furnace
Company, 40 Ohio St. 507.
Page 184 U. S. 75
Plaintiff, however, insists that defendant's contract here
sought to be enforced was not entered into between him and the
bank, but between him and the creditors of the bank; that the order
of the Comptroller of the Currency for the assessment of the
shareholders did not create a cause of action or set the statute of
limitations running, nor in any way affect the validity or duration
of the right which belongs to the creditors to have this liability
enforced, and that the action not being upon the contract of
subscription, but upon the contract of the shareholder with the
creditors of the bank, entered into by himself with the creditors
through the agency of the officers of the bank, different
considerations apply, and the statute of limitations does not
operate as a bar so long as there are any outstanding claims
against the bank.
In support of this proposition, we are referred to section 2 of
the Act of June 30, 1876, 19 Stat. 63, c. 156, which declares:
"That when any national banking association shall have gone into
liquidation under the provisions of section 5220 of said [Revised]
Statutes, the individual liability of the shareholders provided for
by section 5151 of said Statutes may be enforced by any creditor of
such association, by bill in equity in the nature of a creditors'
bill, brought by such creditor on behalf of himself and of all
other creditors of the association against the shareholders
thereof,"
etc., and we are cited to several cases holding that claims
against shareholders under similar statutes do not become barred
until the expiration of the time at which the claims against the
corporation also became barred.
There are several answers to this position. Section 5220, to
which the second section of the Act of June 30, 1876, is
supplementary, contemplates only a voluntary liquidation,
providing, as it does, that "any association may go into
liquidation and be closed by the vote of its shareholders owning
two thirds of its stock."
Richmond v. Irons, 121 U. S.
27,
121 U. S. 47.
Now the Capital National Bank did not go into voluntary
liquidation, but, as averred in the bill, "the Comptroller of the
Currency of the United States became and was satisfied of the
insolvency of the said Capital National Banking Association," and
thereupon appointed a receiver. In other words, the proceedings
Page 184 U. S. 76
were taken under section 5234, as supplemented by section 1 of
the Act of June 30, 1876, authorizing the Comptroller of the
Currency to appoint a receiver when the association had refused to
pay its circulating notes and is in default, or he is otherwise
satisfied of its insolvency.
But it is also sufficient to say of this that the action is not
brought by the creditors under the second section of the Act of
June 30, 1876, but by the receiver under Rev.Stat. section 5234. In
such cases, no debt becomes due to the receiver as such until a
deficiency has been ascertained and an assessment made, when the
statute begins to run.
Scoville v. Thayer, 105
U. S. 145;
Hawkins v. Glenn, 131 U.
S. 319. Upon the theory of the plaintiff, if the statute
of limitations were pleaded, it would become necessary for the
receiver to show that there were outstanding claims against the
bank which were not barred by the statute, and therefore that the
bill might be maintained. This would involve a departure from the
whole theory of the bill in this case, which is based upon the
allegation that the Comptroller of the Currency made an assessment
upon the stockholders June 10, 1893, payable July 10, from which
latter date plaintiff
claimed interest. Defendant demurred
to this upon the ground that the bill
set forth a cause of
action barred by the statute, and plaintiff went to a hearing
upon this demurrer and was defeated. Obviously he cannot now set up
a right to recover, if the creditors had brought a bill under
another statute, to which no allusion is made in the bill in this
case, and which provides for a wholly separate and independent
remedy.
Plaintiff's final contention, that no cause of action arises
until a demand has been made, is also fully met by the allegation
of the bill that, on June 10, 1893, the Comptroller of the Currency
made an order in which he declared that he had made an assessment
and requisition upon the shareholders, "and that he did thereby
make demand upon each and every share of the capital stock of the
said association," and directed the receiver to take proceedings by
suit to enforce the individual liability of the shareholders.
Having made this allegation himself, we do not understand upon what
theory the plaintiff now assumes that no demand was made.
Page 184 U. S. 77
In the view we take of the statute of limitations, we have not
thought it worth while to consider the points made by the
defendant, that the action should have been at law, and that the
bill is defective for the want of proper parties.
There was no error in the decree of the court below, and it is
therefore
Affirmed.