Holt v. Thomas

Van Fleet, J. This is, in substance, an action to recover the sum of seven hundred and fifty dollars, upon the ground that the same was paid under a mistake of fact.

Plaintiff had judgment, and from this and an order denying their motion for a new trial defendants appeal.

In December, 1888, the California National Bank became insolvent and closed its doors, and thereupon the defendant Young was, by the comptroller of the currency of the United States, appointed a receiver to take charge of the affairs of said bank, and pay the creditors thereof, in accordance with the provisions of the National Banking Act.

In order to procure funds with which to pay the creditors there was levied an assessment upon the capital stock of the said bank, which it became the duty of the receiver to collect. The plaintiff was a director of said bank, and his name, among others, appeared upon the books of the bank as the owner of sixty shares of the stock, and in due course he was notified by the receiver to come in and pay the assessment thereon. In response to this demand he claimed and represented to the receiver that he was the owner in fact of hut ten shares of said stock; that he had sold fifty of the shares standing in his name to R. P. Thomas, the other defendant herein, but that said shares had never been transferred [275]to said Thomas upon the books of the bank. Plaintiff was informed by the receiver in effect that the latter had nothing but the books to go by, and that if the assessment was not paid it would be his duty to commence suit for its recovery. Thereupon plaintiff concluded to pay the assessment, and, by an amicable arrangement between him and the receiver, he was permitted to and did pay over to the receiver fifty per cent of the assessment on the sixty shares, amounting to eleven hundred and twenty-five dollars, and was given time to pay the balance, but never did so. Immediately after the receipt of said payment the receiver remitted the money to the comptroller of the currency, and the same was used and disbursed by the latter in payment of the creditors of said bank. At the date of this payment by plaintiff the fund collected by the receiver lacked something upwards of sixty thousand dollars of being sufficient to meet the demands of the creditors. Subsequently other stockholders paid their assessments, some partially and others in full, and as a result the creditors of said bank have been paid off, and there now remains a surplus of some five thousand dollars, which under the law will be returned to the stockholders of the bank. Upon ascertaining that a surplus remained the plaintiff instituted this action, the substantive averment in his complaint, as we regard it, being that he made the payment “foy the special purpose of providing a fund to pay the creditors of said bank. That since making said deposit of seven hundred and fifty dollars the plaintiff has learned and he alleges the fact to be that said seven hundred and fifty dollars was not necessary to pay the creditors of said bank, and that a considerable surplus now remains in the hands of said receiver, amounting to the sum of several thousand dollars, and that said fund is being constantly increased.” There are averments in the complaint as to a sale of fifty" shares of the stock to the defendant Thomas, and other facts relative thereto, but we deem them wholly immaterial.