ASPINWALL. December 18, 1887.)
(Oircuit Oourt, D. Massathusetts.
BANKS AND BANKING-INCREASE OF SToC]!:-Lu.BILITY.
Defendant subscribed for new stock in the reorganization of a bank, and reo ceived a certificate on the basis of a total subscription of $500,000. The actual increase was $461,3W. He protested against the same, and refused to vote on the stock, but retained his certificate until the bank went into the hands of a receiver, several months later. Held, that he was liable to the receiver on his subscriptioIl, and it was too late to claim that increase as to him was invalid. .
At Law. Peter Butler, receiver of the Pacific National Bank, plaintiff, sued William Aspinwall, defendant, for a subscription to an inprease of the capital stock of the bank. Judgment for the plaintiff. A. A. Ranney, for plaintiff. B. N. Johmon and T. H. Talbot, for defendant. COLT, J. This is an action at law heard by the court, jury trial having been waived. It is one of the numerous suits brought by the receiver of the Pacific National Bank against the stockholders, under section 5151, Rev. Bt. The facts in this case differ somewhat from those before the court in Delano v. Butler, 118 U. S. 634,7 Sup. Ct. Rep. 39, and therefore the defendant contends that the reasoning of the court in that case is inapplicable here. The main ground on which the court placed its decision in the Delano Oase was that the subsequent conduct of the stockholder, especially in the payment of the assessment of 100 per cent. on the old as well as the new stock, for the purpose of allowing the bank to resume business, amounted to a ratification of the validity 'of the new stock. In the present case, the defendant subscribed.for the new stock on the proposed increase of $500,000, and received his certificate; but at the subsequent meeting of the stockholders in January, 1881, when he is .quite positive, but not certain, he learned for the first time that the actual increase of stock was $461,300, instead of $500,000, he protested by himself, or through counsel, against the validity of the new stock. Upon the old stock, which he held as guardian or trustee, he' voted against the assessmtint; upon the new stock, which was subscribed for in his own name, he refused to vote at all. His position therefore is that he subscribed to a proposed increase of stock which was never carried out, and that he has never, by implication or waiver, consented to the increase as finally approved. While the supreme court in Delano v. Butler decide the case on the. ground of the subsequent conduct of the stockholder, amounting to a ratification of the act of the association and the comptroller of the currency in fixing the amount of the increase stock at a less sum, yet the court also say: "It will be observed that. without waiting to see what the future action of the association and the comptroller of the currency might be on the question
of the ultimate amount of the increased stock, the plaintiff in error paid for his shares, and ,his certificate" Tbis did r in legal contemplation, with knowledge of the law, which authorized tile association and the comptroller of the c.urrency to red\lce theamollnt of the proposed increase to a less sum than that fixed in the original proposal of the directors; and such payment, and acceptance of in accordance therewith, might amount, ()n ',bis,part, to a ver of the right t() that under '.Iuch he should ,be bound linless the whole alll,ount of the proposf>d Increase ", ' , ' . should be subscribed for and paid in." In'the presentcase, I am of opinion that the acceptance,of his'certificate by the defendant, and the retention ()f, the same during the period of reorganization, and until after the bank finally passed inro the hands of a receiver in May, 1881, several months after all the facts were within his to II ratification on his part of the act of the comptroller 'ofthe-eurrency as to,theinqrease of stock, and that hecaDD()tnow come'fdrwardand assert that, as to him, the in- , Inthe case of Eawn v. Bank, 144 Mass. crease as finally made is 260, 10 N. E. Rep. 844, the facts were different,for in that case the plaintiff refused to accept her certificate of stock, and demanded b.ack her money. be entered for the plaintiff, and it is so ordered. Judgment for, plaintiff.
BLAm ' 'lJ. SHAEFFER
W. D. 1887.)
w: Do Mi8aouri,
tiff was to1urnisli the money, and the 'defendant was to obtain'the title to the property in· hiB own name,and manage ·it for a fixed of 5 per cent. on .sal!lS, for their mutual benefit.. , In rega:r<l the profits the contract furth.ex:provided that when had be.nsold to repay the plaintiff 'all, the money he had advanced, With interest, thefi ,the remainder of the property.should belong, 60 per cent., to the plltintiff, and 40 per cent. to thll defend8,nt, or if the remain4er of tqe property was converted into money, then, t4eproceeds should belong; 60 per cent. 'to the plaintiff. and 40 per cent. to the defendant. Held, that the contract did not create a partnership betwe6nthe,parties. 1 ,', ' A cQntract between the plaintiff ang his ageht. the defendant. provided that within four months after said agent shall have obtained the title to said lands, Or sooner if desired by, the plaintiff, saidl)gent sp.all make a warranty deed to said plaintifffo;ljsaid lands. The agent claimed that he had not secured a perfect title, and refused to convey:. T4eplaintiff was willing to take the title tb:e agent had. Held, that it dId not lie in the agellrs mouth to allege a defect'iil the , t i t l e . , : : . '
TO CONVEy-UEll'ECTIVE,TITLE. '., '. .'
1884;, the parties entered into a contract whereby the