Townsend v. . Williams

Clark, J.: The demurrer admits that the plaintiff was a depositor in the bank of which the defendant was Yice-Presideut; that, hearing rumors questioning the solvency and safety of the bank, the plaintiff went to Wilmington in February, 1892, with the intention of withdrawing his deposits, but was informed by the defendant, theYice-President and a director in said bank, that the bank was perfectly solvent, and in no danger of suspension or failure, saying to the plaintiff, “We’ve got all the money yon want, you need never have any fears of this bank as long as I am in it,” and that, relying - on such representations the plaintiff permitted his deposit to remain and continued to make deposits therein till the bank failed in June, 1893. The demurrer further admits that the bank was in fact utterly insolvent when the above representations were made to him in February, 1892, by the defendant, and that this fact was at that time well known to the defendant, or *336 ought to have been, and that said representations were false and fraudulent. The bare statement of the material facts admitted by the demurrer shows that a cause of action was sufficiently stated. The grounds of objection set out in the demurrer do not affect the plaintiff’s right to recover. Without citing the numerous cases referred to in the argument, bearing more or less upon the matter at issue, we think the following summary from Shea v. Mabry, 1 Lea (Tenn.) 319, 342, is a correct statement of the law: “Directors are not mere figure heads of a corporation. They are trustees for the company, for the stockholders, for the creditors and for the State. They must not only use good faith, but also care, attention and circumspection in the affairs of the corporation, and particularly in the safe keeping and disbursement of the funds committed to their custody and control. They must see that these funds are appropriated as intended for the purposes of the trust, and, if they misappropriate them or allow others to divert them from those purposes, they must answer for it to their eestuis que trust.” ' We would not b.e misunderstood as holding in anywise that the directors of a corporation are insurers or guarantors and therefore liable for the debts of their corporation. But they are trustees and liable as such for losses attributable to their bad faith, misconduct or want of care. They are to direct and supervise the trust confided to them and are not mere figure heads. It was, therefore, immaterial whether the defendant, being Yice-President and director, knew that the bank was totally insolvent in February, 1892, when he represented to the plaintiff that it was entirely solvent. He ought to have known. It was his business to know. The plaintiff had a right to rely upon his representations and, it being admitted that rely *337 ing thereon tbe plaintiff permitted bis deposit to remain and has suffered loss, tbe plaintiff is entitled to recover, as damages, tbe loss thereby sustained, unless the defendant, choosing to answer over, shall set up valid matter in defense to defeat, or reduce, the amount of plaintiff’s demand. The motion for a bill of particulars under The Code, Section 259, rests in the discretion of the presiding Judge and its grant or refusal is not reviewable. State v. Bryant, 111 N. C., 693. The words of the Section (259) are “The court may, in all cases, order a bill of particulars.” "While it is discretionary, we think such motions should be liberally allowed by trial courts, when made in time to avoid any delay in the trial, unless clearly useless or merely for the purposes of annoyance. As stated in State v. Brady, 107 N. C., 822, Wiggins v. Guthrie, 101 N. C. 661, such motions should be made in apt time. As its refusal was a matter of discretion and, therefore, not res judicata, it is open to the Judge below in his discretion to grant the motion now if renewed in time to avoid delay in the trial. This, however, will not authorize a demurrer to the bill of particulars, whose sufficiency or insufficiency rests with the presiding Judge. Clark’s Code (2nd. Ed.)p. 205. The remedy, if the bill of particulars is defective, is by an application to the court to order a more definite bill. No Error.