STUART v. ROBERTSON

STUART v. ROBERTSON
1926 OK 578
248 P. 617
118 Okla. 259
Case Number: 16676
Decided: 06/22/1926
Supreme Court of Oklahoma

STUART et al.
v.
ROBERTSON et al.

Syllabus

¶0 1. Banks and Banking -- National Bank's Officers and Directors -- Misfeasance -- Personal Liability--Actions. In the management and control of national banks the officers and directors are charged by law with the duty of conducting its business with care, prudence, and honesty, and for any negligence or misfeasance resulting in legal detriment to stockholders or creditors, they are personally liable in an action properly brought for the purpose of determining such liability and the extent thereof.
2. Same--Insolvency of Bank--Liability of Officers to Stockholders. The legal relations subsisting between directors and an individual stockholder are common to all similarly situated, and the insolvency of the bank through negligence and misfeasance of the officers and directors does not create a different legal relation between them and an individual stockholder, who has suffered loss, than the one common to all similarly situated.
3. Same. Failure of an individual stockholder to act promptly, upon the discovery of insolvency and loss, to fix liability of recreant officers and directors for the common benefit of all similarly situated cannot give rise to an independent and distinct action for conspiracy and fraud in behalf of such individual stockholder after the stock of such individual has been forfeited for nonpayment of the double assessment, or secondary liability, thereon.

Black & Black, and Bailey & Hammerly, for plaintiffs in error.
Stevens & Cline, and Parmenter, Parmenter & O'Neal, for defendants in error.

LOGSDON, C.

¶1 The only question presented for determination in this proceeding is whether the trial court erred in sustaining the demurrer of defendants to the petitions of plaintiffs. The contention of defendants upon the demurrers, and in this court, was and is that plaintiffs' right of action and form of remedy was in the nature of a bill in equity, brought promptly upon discovery of insolvency and loss; that in such action the receiver should have been made a party, and that the recovery should be for the benefit of all the stockholders, and its proceeds distributed as an asset of the insolvent bank. Plaintiffs cite and rely upon the provisions of Comp. Stat. 1921, sec. 178, and on the cases of West v. Madansky, 80 Okla. 161, 194 P. 439; Owens v. Purdy et al., 90 Okla. 256, 217 P. 425; Bynum v. Strain, 95 Okla. 45, 218 P. 883, and Security National Bank v. Geck, 96 Okla. 89, 220 P. 373, which make application of that section. The section relied on reads:

"The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place there shall be, hereafter, but one form of action, which shall be called a civil action."

¶2 It is not considered that this language creates any new rights or imposes any new liabilities. It, together with section 263, Id., merely abolishes the distinction, often vague and shadowy, as to the form of the action, the substance of the pleadings, and the separate identity of the forum in which the issues shall be tried. (See cases cited, supra.) Plaintiffs concede the correctness of the contentions of defendants, and the correctness of the court's ruling on the demurrers, if this action had been brought by them as stockholders under the provisions of Rev. St. U. S., sec. 5239. Plaintiffs insist, however, that their action is not thus brought. Their contention is thus epitomized in their brief:

"Plaintiffs are neither for nor against the corporation, the defunct First National Bank. Plaintiffs are not seeking to redress wrongs done to the corporation. Neither are they suing the corporation. They are suing private individuals for wrongs done to plaintiffs by defendants in conspiracy."

¶3 It is difficult to apprehend the legal differentiation thus sought to be made. The wrongs complained of and the damage alleged to have resulted grew out of the legal relations of the parties to each other--legal relations voluntarily assumed or continued. The entire detriment accrued during the subsistence of these relations, though it was not discovered until those relations ceased through insolvency of the bank. It was not as individuals that defendants did the alleged wrongful acts, but as officers and directors. It was not as individuals that plaintiffs suffered detriment and damage, but as stockholders in common with others similarly situated. No fraud or deceit was practiced on plaintiffs, nor was any illegal act performed to their detriment, which was not common to all persons similarly situated in their legal relations to defendants. Under such circumstances it is not readily discernible how loss of their stock by plaintiffs through failure or inability to pay the double assessment, or secondary liability, as it is sometimes called, can create and bring about a different legal relation between them and the defendants than existed prior to the bank's insolvency. Plaintiffs have called the attention of this court to no authority sustaining this theory of a new legal relation arising by reason of the facts here shown. The authorities appear to be uniform and harmonious to the contrary: 7 C. J. 571, par. 183; Bolles' Law of Modern Banking, vol. 1, p. 299; Howe v. Barney et al., 45 F. 668; Gerner v. Thompson, 74 F. 125; Hornor v. Henning, 93 U.S. 228, 23 L. Ed. 879; City Nat. Bank of Mangum v. Crow et al., 27 Okla. 107, 111 P. 210; Starr et al. v. Heald, 28 Okla. 792, 116 P. 188; Checotah Hardware Co. et al. v. Hensley, 42 Okla. 260, 141 P. 422.

¶4 In Howe v. Barney et al., supra, the court stated the uniform rule thus:

"A stockholder in an insolvent National Bank, for which a receiver has been appointed, cannot sue its directors to make them personally liable for the mismanagement of the bank, as the right of action is in the receiver, and not in the individual stockholder."