Nashua Savings Bank v. Anglo-American Land-Mortgage & Agency Co.

BROWN, District Judge. This writ of error is to review the rulings of the circuit court in an action of assumpsit by the Anglo-American Land-Mortgage & Agency Company, Limited, a corporation of Great Britain, to recover from the Nashua Savings Bank, a New Hampshire corporation, a stockholder in the Anglo-American Company, unpaid assessments upon stock. A verdict was directed for the plaintiff below, now defendant in error. The first exception requiring consideration relates to the sufficiency of proof of the statutes of Great Britain that govern the Anglo-American Company, and also provide that “all moneys pay able by any member to the company in pursuance of the conditions and regulations shall be deemed to be a debt due from such member to the company; and in England and Ireland to be in the nature of a specialty debt.” 25 & 26 Vict. c. 89, § 16. We are of the opinion that the statutes were sufficiently authenticated by the deposition of an English solicitor familiar with company law, and a managing director of the Anglo-American Company. He states under what laws the company was organized, referring to them by their titles, and testifies that he produces copies of the acts, and also that “these copies are issued by authority, being printed by her majesty’s printer, and are as such by law receivable in evidence without further proof.” We have, therefore, evidence from a competent witness not only that the documents are copies of the laws under which the company was organized, hut also evidence authenticating printed copies of these laws. The witness does not, as counsel contend, simply produce certain transcripts which he says prove them selvps, but states upon his own authority that they are copies of the laws, and also by his oath authenticates the documents as official copies. This proof is ample. Church v. Hubbart, 2 Cranch, 238, 2 L. Ed. 249; Ennis v. Smith, 14 How. 426, 14 L. Ed. 472; Hall v. Costello, 48 N. H. 176; Kennard v. Kennard, 63 N. H. 303; State v. Davis, 69 N. H. 350, 41 Atl. 267; Barrows v. Downs, 9 R. I. 446; The Pawashick, 2 Low, [766] 142, Fed. Cas. No. 10,851. The plaintiff therefore clearly proved that the defendant, as a stockholder, voluntarily assumed such liability as is set forth in 'the portion of the statute we have quoted. . The majority of the court are of the opinion that, as the record does not purport to contain all the evidence, or all the material evidence, the questions whether the circuit court erred in declining the defendant’s request to direct a verdict for the defendant, and whether that court erred in directing a verdict for the plaintiff, cannot be considered. City of Providence v. Babcock, 3 Wall. 240, 244, 18 L. Ed. 31; Railroad Co. v. Cox, 145 U. S. 593, 606, 12 Sup. Ct. 905, 36 L. Ed. 829; Hansen v. Boyd, 161 S. Ct. 397, 16 Sup. Ct. 571, 40 L. Ed. 746; Yates v. U. S., 32 C. C. A. 507, 90 Fed. 57, 62. It appears from the record that the plaintiff introduced no evidence that the plaintiff corporation was insolvent at the time ■ of making the calls or assessments sued upon, or that the call or assessment was made for the benefit of .creditors or in payment of its debts; but this statement does not cover all the purposes for which calls might be made legally, and the statement that this proof was absent does not make it appear affirmatively that other and sufficient proof was not presented. It does not appear that the call was not regularly made, and for proper purposes. The objection made upon the motion to direct a verdict that the declaration coniained no averment or allegation upon what conditions the plaintiff was authorized to make such calls or assessments does not raise the question of the sufficiency of proof that the call was duly made. We are bound to assume, upon this incomplete record, that the proofs of the regularity of this call were sufficient. The necessity for' applying in this case the rule of law that regularity of proceedings in the trial court shall be assumed until the contrary appears is shown by the fact that the learned judge, in his remarks preliminary to the direction of a verdict, referred to evidence not presented here, and stated that there was no doubt that the call for the assessment was properly proven, and also that no question was made as to the regularity of the meetings of the directors. As the majority of the court are of the opinion that we are bound to assume upon this record that due proof was made of the regularity of the corporate meetings and of the calls, we are of the opinion that the question whether we are to accord to the corporate proceedings of a foreign and alien corporation the same presumption of regularity that exists in respect to domestic corporations does not arise upon this record. The remarks of the learned judge in directing a verdict for the plaintiff were simply explanatory of the views of fact and law that led him to take that course, and were not subject to exception. The court-itself determined the issues; and the question whether it erred in so doing can be determined only upon a complete record of the evidence, or upon a record containing all material evidence. This record is not shown to be such. We think that only two .substantial questions are 'presented,— the first, as to the sufficiency of the proofs of the English statutes, which we have considered; and the second, the question whether the company, in seeking to enforce the payment of calls, is restricted [767] to the sale and forfeiture of the defendant’s shares, in accordance with the law of New Hampshire. We are clearly of the opinion that it is not. The present action is not, strictly speaking, founded upon an English statute, but upon an obligation voluntarily assumed by ihe defendant as a stockholder. The English statute that became a part of the charter of the company defines the liability of the stockholder, but it is the act of the defendant in voluntarily assuming this liability by the purchase of its stock that is the basis of the present action. Railway Co. v. Gebhard, 109 U. S. 537, 3 Sup. Ct. 363, 27 L. Ed. 1020; Hawkins v. Glenn, 131 U. S. 329, 9 Sup. Ct. 739, 33 L. Ed. 184; Webster v. Upton, 91 U. S. 69, 23 L. Ed. 384; Relfe v. Rundle, 103 U. S. 222, 226, 26 L. Ed. 337. Though it appears by the articles of association that the company has a lien upon the shares of a stockholder, and may enforce such lien by sale or forfeiture, yef this is not the exclusive remedy; for, by the statute, which has become a part of the articles of association, and to which it has consented, the bank became liable, also, as for a debt. Tbe company therefore has two coucmrent remedies, and was strictly within its right in electing to proceed by an action at common law instead of by sale and forfeiture. If we assume that the question of the fonn of action properly arises upon this record, the exceptions which relate to the form of action must be overruled, since' we are of the opinion that indebitatus assumpsit was the proper form of action. 2 Chit. PI. p. *53; Gould, Pl. c. 3, § 19; Pullman v. Upton, 96 U. S. 328, 24 L. Ed. 818; Mandel v. Cattle Co., 154 Ill. 177, 40 N. E. 462, 27 L. R. A. 313. The judgment of the circuit court is affirmed.