United German Bank v. Katz

LaviiíCx, J., delivered the opinion of the Court. The specific question which we are called on to decide in this case, is whether the appellant, The United States German Rank of Baltimore City can, under its charter, recover upon a promissory note, which it has procured by discounting. This corporation was made such by certificate executed and acknowledged, certified by a Judge of the Supreme Bench of Baltimore City, and recorded under the provisions of Article 26 of the Code of Public General Laws as enacted by Act of 1868, ch. 471. The second clause of its certificate states, “that the corporation so formed, is a corporation for the purpose of receiving from any person or persons or bodies corporate or politic, any deposit of money, which shall be invested or loaned out on good security, in the discretion of its directors, as provided for in — 136 — Article 26, Maryland Code of Public General Laws, secs. 152 to 155 ; that the term of existence of the said corporation is limited to forty years ; and that the said corporation is formed upon the articles, conditions and provisions herein expressed, and subject in all particulars to the limitations relating to corporations, which are contained in the General Laws of the State.” The fourth clause of the certificate certifies, “ that the-aggregate of' the capital stock of the said corporation -is one hundred thousand dollars, and that the said capital is divided into four thousand shares of the par value of' twenty-five dollars each.” In March, 1818, the note upon which this suit was. instituted, was discounted by this corporation, and its. collection is resisted on the ground, that having been incorporated under the provisions of the Act of J868, it not only acquired no power to discount, hut is, by the second section of that Act, expressly prohibited from doing such business. By the second section of this Act of 1868 it is provided “ that no corporation created or to he created, and not expressly incorporated for banking purposes, shall by any implication or construction be authorized to exercise banking privileges, or to issue any note, token, device, scrip, or other evidence of debt to be used as currency.” The lower Court instructed the jury “that if they shall find from the evidence that the plaintiff was incorporated under the provisions of the Act of 1868, ch. 411, secs. 152' to 155 inclusive, and was not expressly incorporated for banking purposes, then the said plaintiff was prohibited from discounting the promissory note which is the cause of' action in this case; and if they shall further find that the promissory note was discounted by the plaintiff, the plaintiff is not entitled to recover and their verdict must he for the defendant.” The appellant contends this ruling was. error, and relies on the decision of this Court in Duncan vs. The Maryland Savings Institution, 10 G. & J., 299. — 137 — That there is strong analogy between that case and the one at bar cannot be denied ; but the analogy is not perfect ; and in view of the very broad language of the second section of the Act of 1868, ch. 471, as contrasted with the language of the several Acts of Assembly involved in the decision of the Duncan Case, we do not think that case can control the decision of this. In that case the Maryland Savings Institution had discounted a note and brought suit to collect it, as here the receivers of the United German Bank have done. As is done in • this case, payment was resisted on the ground, that the Maryland Savings Institution had no power to discount and in fact was prohibited from discounting, and therefore, could not recover. The institution was incorporated by ch. 189 of the Acts of 1826. The third section of the Act of incorporation among other tilings provides, that it shall be competent for the corporation “ to regulate the manner of receiving deposits,” and “ to provide for the investment of the funds of the corporation in such manner as they shall deem most safe and beneficial.” The fourth section provides that “said corporation shall be capable of receiving from any person, or persons, any deposit or deposits of money, and that all moneys so received shall be invested in stocks or other securities at the discretion of the directors, and in the manner deemed most safe and beneficial.” The same section exempted the members of the corporation from personal liability for the debts of the corporation, and that no funds should, be loaned to an officer or director of the institution. By the sixth section of its charter, it was declared that nothing in this Act shall be held or construed to authorize the company incorporated by this Act, to do any act or acts inconsistent with the privileges secured to the existing banking institutions in the City of Baltimore, by the Acts of 1813, ch. 12*2, and 1821, ch. 131, or by any other Act or Acts now in force.” The eleventh section of each of the last mentioned Acts had pledged the faith — 138 — of the State, to the banks accepting the provisions of those Acts, and doing what was thereby required of them, not “ to grant to any other bank ” in Baltimore a charter until after a designated period, which had not expired when that charter was granted; and the sixth section above quoted was inserted in compliance with that pledge, for the purpose of restricting the institution thereby incorporated to a business not violative of the banks’ rights under the State’s pledge. Judge Dorsey in delivering the opinion of the Court said, “that banking powers have been defined to consist of the right of issuing negotiable notes, discounting notes and receiving deposits.” He then said, “ if the creation of a corporation with any one of these banking powers is a violation of the faith of the State, then the incorporation of the Maryland Savings Institution is a violation of that pledge, whether the right of discounting be granted or not.” He said that the right “ to receive deposits was a banking privilege,” and although that was conferred, it was not contended that thereby the pledge of the State was violated. The Court therefore concluded that the right to discount was not intended to be prohibited, but that which was intended was the banking power of issuing notes to be used as a currency. The pledge of the State in the Acts of 1813 and 1821, was a sipiple pledge not to charter any other bank in Baltimore City within the designated period. It was a promise on the part of the State, in consideration of the acceptance by the banks then existing of the conditions of their existence and tax on them, not to create any other corporation with their collective or aggregate powers. Unless the institution therefore did or could use all the powers of a bank, it was not a violation of that pledge ;.and the sixth section of the charter of the Maryland Savings Institution was given a construction having that effect. — 139 — The law before us now for construction is broader and more emphatic. The second section of the Act of 1868, ch. 471, is very express. It says, “ no corporation not expressly incorporated for banking purposes shall by any implication or construction be authorized to exercise banking privileges, or to issue any note, token, device, scrip, or other evidence of debt to be used as currency.” With the exception of the inhibition against implication or construction being resorted to, to accord to institutions not expressly incorporated as banks in their full sense, banking privileges, it is the same provision which is found in the seventeenth section of the Code of 1860; and that section is taken from the Act of 1852, ch. 231, sec. 5. The provision, in substance, is therefore not a new one, but an old one rendered more stringent and emphatic by the addition of the language forbidding the resort to implication and construction to accord privileges not expressly and unambiguously conferred. It is a plain declaration by the Legislature, that the natural meaning of language is not to be tortured by construction or implication to include privileges not expressly given. The charter of the institution in express terms gives nothing but the power to receive and invest deposits. The .language of the second section of the Act of 1868, is as plainly directed against other privileges as it is against the issuance of notes as currency, The only privileges belonging to banks besides issuing notes, are to receive moneys on deposit, and the right to discount promissory notes. These three privileges arc given by Judge Dorsey in Duncan vs. The Maryland Savings Institution, 10 G. & J., 299, as answering the definition of bank privileges.” He cites The People vs. President, &c. of Manhattan Co., 5 Conn., 383 ; and The People vs. Utica Insurance Company, 15 Johns., 390. To these may be added Morse on Banking, 2 ; New York Fire Insurance Co. vs. Ely, 5 Conn., 573. Row, the prohibition of this second section of the Act of 1868, oh. 471, cannot mean the right or privilege of — 140 — receiving deposits, to be included within the inhibition, for the very Act of which it is a part, allows the incorporation of institutions in express terms, with the power of receiving deposits. The. prohibition is, therefore, to be read as if it had said, “ such bank privileges as are not accorded by this Act.” The right to receive deposits, then, is to be excluded, as not within the meaning and contemplation of the Legislature. But one privilege, included in the definition of “bank privileges,” is left to be intended by the words “banking privileges,” which precede the words “or issue any note,” &'c., as currency, in the section under discussion-. The first part of the section before thq express mention “ of notes to be used as currency,” must mean something; and as receiving deposits is necessarily excluded, by subsequent express provisions in the Act allowing to corporations, such as this corporation is, the power of receiving deposits, discounting must be the thing intended to be prohibited by the phrase “ banking privileges.” Any other construction would not accord to every word of the Act its full meaning. “Implication or construction” could not possibly set aside a direct inhibition of issuing notes as currency. Those words manifestly were introduced to prevent something else. If the issuance of notes as currency was alone intended to be prevented, that would have been effectually accomplished by omitting all that is said about banking privileges. It would seem as if language had been expressly chosen to prevent an interpretation such as was given the Acts of Assembly involved in the Duncan Case; for the law says, it shall not be held by “implication or construction ” to embrace banking privileges. In the case of Hammond vs. Straus, 53 Md., 1, this view was taken of the provisions of this second section of the Act of 1868, ch. 411; although it was only incidentally considered and applied, and that, without any special reference to the case of Duncan, in 10 G. & J. ; for it does not — 141 — appear that the case was cited in argument, or was in the mind of the Court. The language of the statutes considered in that case, was materially different; and we do not pretend to question the propriety of that decision. In this case, we think the statute, by logical test, is free from ambiguity, and properly controlled the decision of the case of Hammond vs. Straus. There the Court said, that “discounting notes,” among other acts, which could only be referred to the authority by legislative charter, to carry on banking was an act, with others, to go to the jury, from which the jury might find the “ Union Banking Company” had accepted the charter given by the Legislature. To be evidence, the Court said, the several acts of the company must be such as could only be referrible to banking authority, “ and as would be illegal and void” acts, unless they could be so referred. It was, therefore, a determination by the Court, that, by virtue of the charter, acquired by certificate, made, executed and certified under the Act of 1868, it could not discount; for, if it could do so under that charter, it was clearly not evidence of having accepted another. Both, upon reason and upon authority therefore, we think the appellant, The United German Bank, had no authority to discount promissory notes. It does not follow, as a consequence of this view, that because the appellant exceeded its legitimate powers in procuring this note by discounting the same, that recovery cannot bo had. If he received the plaintiffs money, or was the knowing instrument of some one else doing so, he ought not to escape liability to paj^ on that ground. It might be good ground for proceedings to forfeit its charter, but, in a case Eke this, it is not available as a defence. In 2 Potter’s Laxo of Corporations, 663, it is stated, that there are some well recognized legal and moral distinctions, in respect to this doctrine of ultra vires ; “one of which is between executory and executed contracts.” As to executory contracts — 142 — “ if made in excess of authority the Courts, at the instance of.a stockholder, will interfere to prevent performance, because such contracts contemplate an unauthorized diversion of corporate funds, and are, therefore, a breach of trust. But the rule is different in regard to executed contracts ; these by the plainest rule of good faith should he permitted to stand.” A large array of authorities is cited by the learned author in support of the statement in the text. And Sedgwick in his work on Constitutional Laio, page 73, says, that although a corporation in making a contract “ acts in disagreement with its charter,” yet “ a party, who has had the benefit of the agreement, cannot be permitted to question its validity.” The doctrine thus stated by these text-writers is fully sustained by judicial decisions in this State, the Supreme Court of the United States, and several States of the Union. Abbott and Wife vs. The Savings Bank, 2 Md., 172 ; National Mechanics’ Bank vs. Shoemaker, 31 Md., 396 ; Steam Navigation Case, 17 Barbour, 378; 53 Howard’s Practice Reports, 506; 6 Otto, 258; 8 Otto, 621; 63 N. Y., 62. The principle upon which all these decisions proceeds is, that it is inequitable to permit one who has received the proceeds and benefit of the contract, to repudiate it on the ground, that the corporation from which he has obtained the benefit had no power to make the contract. It has been insisted in argument that the case of Jesse Lazear vs. The National Union Bank of Baltimore, 52 Md., 78, has established a different doctrine in Maryland. We do not understand that case to establish that where there is entire privity between the parties recovery may not be had. In that case the suit was upon the guaranty of the defendant, and he was not found to have been privy to the transaction by which the . money was procured. The distinction is material and substantial. It is the person who actually participates in the contract, that is to be held' liable, in the case of an executed contract, — 143 — under the rule laid down in the authorities cited. In this ease the appellee endorsed with the knowledge that the note was to be taken by the bank by way of discount. He signed his name with the knowledge that the money was to be given by the bank upon that being done. He is shown to have gone to the bank to give his name on the paper. Whether he received the money personally or not is immaterial, if by his procurement some one else did get the money upon the faith of what he did. It was all one transaction. Under the circumstances we do not think he can be heard to dispute the bank’s right to recover, on the ground that it. exceeded its charter rights in discounting the note. We think the Court erred in granting the instruction given. (Decided 1st July, 1881.) Reversed and neio trial awarded.