Laidlaw v. Pacific Bank

COOPER, C. Appeal from judgment on the judgment-roll. The findings show that the appellant was incorporated under the name of “Pacific Accumulation Loan Company” under an act of April 11, 1862, entitled “An act to provide for the formation of corporations for the accumulation and investment of funds and savings” (Stats. 1862, p. 199), and that subsequently, by authority of an act of the legislature, it changed its name to that of “Pacific Bank.” That at all times it had a capital stock of $1,000,000, divided into ten thousand shares of the par value of $100 each, all of which was subscribed and fully paid for; and up to the twenty-third day of June, 1893, said corporation was engaged in the transaction of. a general commercial banking business exclusively. That prior to said last-named day the said corporation became insolvent, and at the time it so became insolvent it had about nine hundred depositors, who were not stockholders, and to whom it was then indebted in the sum of about $1,400,000 on account of deposits made by such depositors with said corporation. On October 16, 1893, after due proceedings, the said corporation was adjudged insolvent, under the act of March 30, 1878, creating a board of bank commissioners, and was prohibited from the further transaction of business, and ever since has been in process of liquidation under said last-named act. That since said corporation went into liquidation it has paid dividends amounting to forty per cent on the unsecured claims of its depositors and other creditors, and the remaining assets are of sufficient value to enable it to pay forty per cent to plaintiff and intervener upon the claim involved in this action, provided no other creditor is paid. That on the twenty-second day of June, 1893, the said corporation became and was indebted to R. H. McDonald, who owned four thousand seven hundred and eighty shares of the capital stock of said corporation, “in the sum of $97,003, for moneys theretofore paid, laid out, and expended by said McDonald for the use and benefit of said defendant, at its request.” That said cl aim was and remains unsecured, and defendant promised and agreed to repay the same on demand, and, although demand has been made, the same has not been paid, nor any part thereof. That prior to the commencement of this suit the said McDonald sold and assigned the said claim to plain[851]tiff, who is now the owner thereof, subject to the rights of the intervener. That at no time since the eleventh day of March, 1886, did the by-laws of appellant provide that the same security should extend to deposits made by its stockholders as was and is given to depositors who are not stockholders of appellant by section 10 of said act of April 11, 1862. That prior to the commencement of this action and the assignment to plaintiff, Mathew McGowan, the intervener, commenced an action against R. H. McDonald, procured a writ of attachment, and had the same levied upon the said demand so due to said McDonald, which levy was in all respects regular. That said intervener afterward procured judgment in due form against said McDonald for the amount hereinafter named, which judgment has not been paid. As conclusions of law the court found that plaintiff and intervener are entitled; to a judgment, directing appellant to pay them a dividend of forty per cent upon the indebtedness so due to plaintiff upon the assigned claim of said McDonald, amounting to $45,925.25, of which amount plaintiff is entitled to $8,423.58, and intervener to $37,-501.67; and that plaintiff is entitled to a pro rata dividend with the other creditors, and depositors of any dividends that may hereafter be declared, after so paying plaintiff and intervener. Judgment was accordingly entered.