Hall v. United States Insurance

Dorsey, J., delivered the opinion of this court. The suit before us was instituted to recover certain instalments on the stock of the United States Insurance Company. And to show the defendant’s liability for the payment thereof, after proving that Joseph P. Grant was an original subscriber for one hundred shares of the stock of the company, the plaintiff below gave evidence of the following transfer thereof to the defendant below, to wit: « I hereby transfer to D. W. Hall an hundred shares of stock, — 498 — now standing in the name of Joseph P. Grant on the books of the United States Insurance Company of Baltimore. Witness my hand this 12th day of July, 1832, Witness present, J. J. Atkinson. Joseph P. Grant.” And to prove the defendant’s assent to the transfer thus made to him, the plaintiffs gave evidence by Joshua J. Anderson, a competent witness, that after the date of said transfer, the said defendant paid several instalments on said one hundred shares of stock, that were called for by the president and directors of said company. Whereupon the said defendant objected to the reading of said instrument of waiting, purporting to be a transfer, as incompetent and inadmissible as evidence to prove that the said defendant, by virtue thereof, became the owner of said stock, or became a stockholder in said company; notwithstanding, the said defendant paid several instalments after the time of said supposed transfer, because the said Grant, by virtue of the said agreement or subscription for said stock, and by virtue of the act of Assembly aforesaid, (meaning the charter of the company) became a stockholder debtor to said company for the whole sum of twenty dollars upon each and every of said shares, including the nine dollars upon each of said shares sought to be recovered in this action; and because, by the provisions of the ninth section of said act of Assembly, no stockholder indebted to the company, is permitted to make a transfer or receive a dividend until such debt be paid, or secured to the satisfaction of the president and board of directors of said company; and furthermore, because there is no consideration expressed in said supposed transfer for the making thereof. Which objection the court overruled and the defendant excepted. . Was the county court right in so doing is the question involved in the defendant’s first bill of exceptions ? The appellant insists that there is error in the county court’s decision, because Grant, by subscription for the stock, became a debtor'to the company for the sum of twenty dollars on each share of the stock, which included the amount for which suit had been instituted against him. But there is nothing in this objec — 499 — tion. The transfer of the stock having been duly made to him; and he having assented thereto, as is unequivocally demonstrated by his payment of instalments subsequently called in by the president and directors of the company, he was, in respect to said slock, substituted to all the rights and liabilities which would have attached to Grant, had he continued the owner thereof, and no such transfer had ever been made. And there is quite as little weight in the appellant’s second reason, assigned in support of his objection, founded on the ninth section of the act of Assembly of 1831, ch. 191, which declares, that no stockholder indebted to the company shall be permitted to transfer his stock, until such debt be paid or secured to the satisfaction of the president and board of directors. The object of this section was to confer a privilege, not to impose an imperative duty, upon the company. Being a privilege, it might be waived or asserted, at the pleasure of the president and directors. And the transfer having been by them permitted, it was as valid and obligatory upon the appellant, as if no such indebtedness had existed. But suppose the ninth section of the act were to be construed, not as conferring a privilege, but as imposing a duty. Instalments not called in, constituted no such indebtedness as was contemplated by the act of Assembly. It contemplated only a debitum, solvendum in presentí, not in futuro. To give to the charter of the company the construction contended for by the appellant, would be to render its stock wholly untransferrable, until the par amount of it had been paid up. Although the requisite instalments for that purpose had never been called in by the president and directors. And there is still less foundation for the third reason urged to sustain the appellant’s objection to the testimony offered, viz: because there is no consideration expressed in said supposed transfer, for the making thereof. It is as good, inter parties, if made without consideration, as if made with it. The only office of the transfer is to pass the stock to the transferree. It professes not to disclose the consideration which induced it; or the terms of the contract from which it emanates; and — 500 — of which it is the consummation. There is, therefore, no error in the ruling of the court below, in the first bill of exceptions. Neither is there any error in the court’s overruling the objection of the appellant to the testimony offered by the appellee in the second bill of exceptions. The proceedings of Baltimore county court when sitting in equity, which were objected to as evidence, were not offered as an adjudication of any of the rights of the parties in any suit between them, and upon that ground as admissible evidence in the present controversy; but were offered, without reference to the parties thereto, for the purpose of shewing by what authority the present action was prosecuted. In that aspect of their being offered, they are obnoxious to neither of the reasons urged for their rejection. The court’s order for the institution and prosecution of this suit was definite and final. As to the power exerted by Baltimore county court, sitting in equity, in the proceedings before it, it is believed no well-founded exception can be taken. It was indispensably necessary for the prevention of fraud; and to do justice to persons whose grievances were undeniable and incapable of relief any where else, or in any other way, than in that pursued by the county court. In such a case, and under such circumstances, it cannot be necessary to cite authorities to establish the propriety of the exercise of such a power. The county court then committed no error in overruling the objection taken by the appellant to the testimony offered by the appellee in the second bill of exceptions. On the third bill of exceptions, the appellant has insisted that the county court in overruling his objection to the testimony offered by the appellee, erred upon three grounds: first, because by the second section of the act of 1831, ch. 191, no call for the payment of any instalment on the stock of the company was legal, unless made by the president and directors thereof. Secondly, that a notice for the payment of such instalments must be personal notice, and that no newspaper publication thereof was sufficient. And thirdly, that the notices given by the receivers were insufficient, because by the provisions of the company’s charter, sixty days must intervene — 501 — between the times for the payment of each instalment. Having asserted the legality of the proceedings of the county court in assuming the jurisdiction, which it sought to exercise through the instrumentality of receivers, it follows as a necessary consequence, that under the court’s order of the 26th June, 1834, the receivers had the same power to determine on the times of payment, and the amount of the instalments called in, that the president and directors of the company possessed, when uncontrolled by any intervention of the county court upon the subject. In support, of the second ground of objection: that the notice for the payment of the instalments must be personal; and that no newspaper publication thereof is sufficient. No authorities have been referred to; and there is nothing in the act of Assembly to induce a belief that it contemplated or required such notice to be personal. On the contrary, there is every reason to induce the adoption of a contrary opinion. The act of Assembly provides for the subscription of ten thousand shares of stock; amongst how many persons they may be distributed, not even a conjecture could be formed: they may have amounted to thousands. Of their respective residences there is equal, if not greater uncertainty, the law making no provision for a registry thereof, which it certainly ought to have done, had such personal notice been deemed necessary. And there is no proportionate object attained for the great inconvenience, labor, and expense, incident to such a notification, conceding it to be practicable. Persons who are stockholders in such a corporation are not inattentive to the concerns thereof, and obtain information in relation to its proceedings either through their own inquiries or the communications of friends resident at or near its office of business, or from publications in newspapers edited in its vicinity. The substitution of such newspaper publications in lieu of personal notice, has so long been an universal usage, and of a notoriety equal to that of the publication of newspapers themselves, that the custom of doing so has become a part of the law of the land. — 502 — It is true that in many of the charters of such corporations, there are express provisions for the publication of newspaper notices. But such provisions are rather to be regarded as declaratory of what the law is, and ought to be, than innovations upon it. In the very charter before us, some such newspaper notices have been provided for; but there is nothing to be found in it, winch induce even a momentary belief, that the legislature omitted to prescribe such a notice in the section now under consideration, in order that a personal notice might be given to each individual stockholder. The third reason assigned for the rejection of the testimony offered in this bill of exceptions, cannot be sustained without interpolating into the charter, a provision which it does not contain. It no where prescribes any length of time which shall intervene between the times for the payment of any of the instalments. That is a matter left entirely to the judgment and discretion of the president and directors. The only restriction imposed upon them, (in reference to instalments) for the benefit of the stockholders, is, that they shall be notified of their amount and time of payment, sixty days before the payment is required. No error is perceived in the ruling of the court in the third bill of exceptions. The opinion expressed on the third bill of exceptions supersedes all necessity for the expression of any opinion on the defendant’s fourth bill of exceptions. In the fifth bill of exceptions, the defendant having offered in evidence by way of set-off, a judgment by him obtained against the plaintiff and three policies of the United States Insurance Company, and that he had been the bona fide holder of those claims before and ever since the failure of the company, and having admitted that, at a dividend made by the receivers of the assets of the company subsequently to the time when all the instalments called in by the receivers were payable, he had received a dividend of twelve per cent, on the full amount of his said claims, prayed the opinion and direction of the court to the jury, as follows: that the plaintiff is not entitled to recover upon the evidence in this action. And in support of his — 503 — prayer, assigned twelve separate reasons: the first, second, third, fourth, fifth, sixth, tenth and eleventh have been disposed of, and their insufficiency as the basis for the prayer predicated upon them, sufficiently shown by the preceding portion of this opinion. The seventh ground on which the defendant claimed the granting of his prayer was: “ because the said order of Baltimore county court directs the total amount of the instalments, payable on the stock, to be called for upon sixty days notice, contrary to the charter given in evidence, which allows no larger amount than five dollars upon such period of notice, at any one time to be called for, whilst the testimony and claim of the plaintiff in this cause shew, that the amount of unpaid instalments was nine dollars at the date of said order.” Upon this ground, the appellant’s prayer was properly refused, being founded in a misconception of the order of the court, which did not direct that all the instalments, which the receivers were to call for, should be made payable at one and the same time: but that sixty days nolice should be given to the stockholders previously to the time of the required payment of the instalments, and leaving to the receivers the power of fixing the amount of the instalments called for, in conformity to the provisions of the charter. Such appears to have been the receiver’s interpretation of the court’s order; and their proceedings under it were designed to be in strict accordance both with it, and the charter. The eighth reason is: “ because the said order of Baltimore county court has not, in respect of the notice thereby directed, been complied with, inasmuch as by the showing of the plaintiffs, the notice for one of the instalments, was, for the first time, published on the third day of July, in the year eighteen hundred and thirty-four, and required payment of said instalment on the first day of the next ensuing September: and because said notice was not sufficient, in that it was published only (daily) four times during the period between the third day of July, 1834, and said first day of September.” As to the first branch of this reason, however, it might be a bar to — 504 — the plaintiff’s recovery of the first instalment, the payment of which was required on the first of September; it assuredly formed no bar to the recovery of the three other instalments, the payment of which was fixed for the first day of October, the first day of November, and twenty-second day of December: and consequently was no warrant for the granting of the prayer made to the court. The second branch of the reason interposed no barrier to the plaintiff’s right to recover. The notice given, as respects the mode of publication in the newspapers, was a sufficient compliance with the order of the court, and the requisition of the charter; and, of course, in no wise' sustained the prayer addressed by the appellant to the court. The ninth reason assigned for the granting of the appellant’s prayer is sufficiently answered and obviated, in what has been said upon the seventh reason. The twelfth reason was abandoned by the appellant in the argument of this cause. The defendant below, after enumerating the twelve grounds upon which he claimed the court’s opinion and direction to the jury, that the plaintiff was not entitled to recover; with a view to obtain an additional opinion and direction from the court to the jury, makes the following addition to his prayer: “And that the plaintiff cannot recover in this cause the instalment of four dollars, mentioned in the notice of 24th June, 1837, from the president and directors of said company, because it is made payable on the 26th of October, 1837, and the present suit was instituted on the 31st of August, 1837. Had this prayer been granted by the court, it is manifest that it would have been regarded by the jury, as, in fact, it would have been, a direction to them, that the plaintiff was not entitled to recover more than five of the nine dollars due on each of the hundred shares of stock, owned by the defendant. Such an opinion the court below could not have given to the jury, consistently, with the views herein before expressed as to the legality and sufficiency of the notices previously given by.the receivers. In refusing this addition to the prayer of the appellant, the court below committed ho error. — 505 — The only remaining prayer of the defendant below, in the fifth bill of exceptions, is in the record, numbered fourteen, and presents for our consideration the single question, whether the appellant after, in common with all other creditors, receiving from the receivers a dividend of twelve per cent, on the entire amount of his claim against the company, can be permitted to set off the balance due to him against the claim of the appellee in the present action ? This suit was instituted in the year 1837, and the dividend was declared and paid in the year 1841. That the defendant understood the nature of the dividend declared: that he made known to the receivers the amount of the company’s indebtedness to him, on which he claimed his dividend, cannot well be doubted; because three out of the five policies of the company on which that indebtedness arose were payable to bearer: and the receivers, in the nature of things, must have been apprized of his being the holder thereof, through some communication from himself. Indeed, it is a natural inference, that to justify and protect themselves, they must have required an exhibition of the policies by him, who claimed a dividend on account thereof. To claim a right of discount or set-off, is not an obligation or duty on the part of him who is entitled to it. It is his privilege, which he may waive or assert at his election. But having once waived it, and thereby obtained a dividend out of the effects of his debtor, to which, neither at law nor in equity, would he have otherwise been entitled, he will not after-wards be permitted, either in a court of law or of equity, as a matter of right, to assert his claim by way of discount or set-off'. To suffer him to do so, would in contemplation of law, if not in fact, be practising a fraud upon the other creditors of his debtor. And this may be briefly illustrated by a supposititious statement, entirely analogous to the case before us. Suppose the claim of the company against the defendant was $1,000, and that of the defendant against the company, $1,150; upon the principles of discount or set-off', the actual indebtedness of the company would be $150; the dividend of twelve per cent., on which is $18, and that is all that the de*> — 506 — fendant could justly claim or receive under the dividend as made by the receivers. But instead of thus preferring his claim, he waives his right of set-off, and prefers his entire claim of $1,150, and receives a dividend of $138, instead of $18; that is $120 more than upon any principle of set-off, he had even the shadow of a claim upon the funds in the hands of the receivers. The county court were clearly right in refusing this prayer of the defendant. This view of the question renders it unnecessary to inquire into the general right of set-off, if no such dividend has been received by the appellant. The granting of the prayer of the appellee would necessarily follow, from what has been said in relation to the prayers made by the appellant. Concurring in all that has been done in this case by the county court, its judgment should be affirmed. judgment affirmed.