Wedemeyer v. Hindelang

Ostrander, J. (after stating the facts). No authority has been presented, and we assume none can be found, sustaining the proposition that the assets of a bank, carried in its surplus fund, are in any sense deposits in the bank, or that the stockholders are, to the amount of said fund, depositors in the bank. Undoubtedly the surplus belongs to the stockholders; so does the capital, and, for that matter, so do the undivided profits. But would [603] it be contended that in liquidating the affairs of a bank the amount of the surplus is a debt due to stockholders to be proved and paid ratably with the claims of other creditors ? Undoubtedly an actual surplus may be reduced by the division thereof and the payment of proportional shares to stockholders. But until such division is made and the amount divided is separated from the total of the assets and distributed to individuals, it is owned by the shareholders collectively and is by them collectively embarked just as the capital of the bank is embarked in the adventure of banking. Except as a surplus fund is required by the law, it is a fund created and augmented for convenience and profit, and, like the capital, is payable out of the assets of the bank after the creditors have been paid in full. Stockholders are not creditors of the bank to the amount of a proportional share of the surplus. They have not lent the money represented by the surplus to the bank. There is no reasonable construction of the statute which supports the contention of the appellants. The meaning of the word “ depositors,” as it is employed in the statute, is a somewhat restricted one. State Savings Bank v. Foster, 118 Mich. 268 (76 N. W. 499, 42 L. R. A. 404). A surplus is not only required by the law to be created, it is recognized, after its creation, in the directions concerning the deposits which the bank may make (section 6116), and in the limitation of loans which may be made by the bank (section 6141), as a part of the working capital of the bank. The statute liability of a stockholder “for the benefit of the depositors in said bank ” is not that of a surety. Foster v. Bow, 120 Mich. 1 (79 N. W. 696, 77 Am. St. Rep. 565). It is created for the benefit of depositors only, and is in addition to the benefit to be derived by them from the ordinary assets of the bank. It cannot be presumed that this liability was created to protect the surplus, or that the word “ depositors ” is employed in the statute with other than its ordinary meaning in the busi [604] ness of banking. The court below was right in so deciding. The court was in error in requiring interest to be paid from the day when the bank was closed. Counsel for the receiver have not in the brief attempted to sustain the decree in this respect. The stockholders, with respect to the liability now asserted, were not in default when the bank was closed, and it is only upon the theory of a default in paying what was due and payable that interest may be exacted. Interest should be computed from the time when it was determined by the court that it was necessary to enforce the stockholders’ liability. The decree will be so modified as to require interest to be computed from April 29, 1908. In all other respects it is affirmed, with costs to complainant. Hooker, Moore, McAlvay, and Brooke, JJ., concurred.