Sain v. . Love

Brogden, J. The ultimate question in the case is whether the words of the complaint, reasonably construed, classify the action within the principle of Douglass v. Dawson, 190 N. C., 458, 130 S. E., 195, or within the principle applied in Bane v. Powell, 192 N. C., 387, 135 S. E., 118. One of the distinctions between those two cases was pointed out in Wall v. Howard, 194 N. C., 310, 139 S. E., 449. Stacy, C. J., writing in Corporation Commission v. Bank, 193 N. C., 113, 136 S. E., 362, declares: “That the right of action against the officers and directors of a banking corporation for loss or depreciation of the company’s assets, due to their wilful or negligent failure to perform their official duties, is a right accruing to the bank, enforceable by the bank itself, prior to insolvency, and hence enforceable by the receiver for the benefit of the bank, as well as for the benefit of its creditors, is the holding or rationale of all the decisions on the subject.” The thought movement of the complaint begins with specifically pointing out the duties of the officers and directors and defining them to be: (a) Accurate information as to assets and liabilities; (b) condition of reserve fund; (c) character and insolvency of loans and discounts, and “to so manage and superintend its affairs as to prevent a *592 discount or purchase of paper not financially good for sale, and at all times to see to it that its reserve was maintained in accordance with law.” It is then alleged that the directors and officers brought about a merger of several small banks, and that as a result of the merger the parent bank was thereby rendered insolvent. Furthermore, it was asserted that the officers and defendants, with reckless disregard of the rights of the plaintiffs, wrongfully received or wrongfully permitted employees to receive deposits of the plaintiffs and others, well knowing that the institution was insolvent. It was further alleged that the defendants had loaned directly or indirectly to various officers and directors of the bank sums of money exceeding a half million dollars. The concluding paragraph of the complaint asserts “that by reason of the wrongful acts of defendants, as hereinbefore set out, plaintiffs have met with a loss individually and collectively in the sum of $149,336.05,” etc. There is no specific allegation that the Commissioner of Banks took charge of the assets of the Commercial Bank and Trust Company of Gastonia when its doors were closed on 4 April, 1929, but it does appear from paragraph 15 of the complaint that the plaintiffs have received a forty per cent dividend, “paid by the receiver.” There is no allegation that demand has been made upon the receiver or Commissioner of Banks to institute an action against the officers and directors, or that such receiver has otherwise failed to perform his duties. An analysis of the complaint leads the court to the conclusion that the complaint invokes the principles applied in Douglass v. Dawson, supra; Roscower v. Bizzell, 199 N. C., 656, 155 S. E., 558, and Merrimon v. Asheville, 201 N. C., 181. Affirmed.