Summary
finding when the wrong is common to all of the creditors, the suit must be brought by the receiver of the corporation
Summary of this case from Jo Ann Howard & Assocs., P.C. v. CassityOpinion
May 27, 1932.
1. BANKS: Guaranty of Directors. Where the officers and directors of the bank in charge of the Commissioner of Finance executed a contract with the Commissioner guaranteeing to pay all liabilities except liabilities of stockholders, in a suit by the depositors on such guaranty the petition which failed to state whether the depositors became such before the guaranty was signed and other conditions of the bank in the hands of the Commissioner failed to state a cause of action.
2. ____: Receivership. For some purposes a receiver represents not only a corporation in his hands but also the creditors.
3. ____: Insolvent Banks. The Finance Commissioner in charge of a bank under Section 5316, Revised Statutes 1929, administers the assets of the bank under the direction of the circuit court for the benefit of depositors and other creditors of the bank. [Secs. 5323-5326 and 5330, R.S. 1929.]
4. ____: ____: Preference. Under Sections 5333-5337, Revised Statutes 1929, all depositors and other creditors share equally in proportion to their claims in funds collected from the assets of the bank, such as arise from liability of officers and directors of the bank for losses and obligations of the officers and directors to preserve the solvency of the bank; a suit by depositors on a guaranty of the officers, if successful, would create a preference and could not be maintained.
5. ____: ____: Individual Depositors. Depositors who have been individually wronged by the officers and directors of a bank, by receiving their deposits with knowledge of its insolvency, have their remedy against such officers and directors. [Secs. 5381-5383, R.S. 1929.]
6. ____: ____: Suit by Receiver. Amounts for which officers and directors may be liable constitute assets of a corporation for the benefit of all creditors and a suit therefor must be brought by the receiver in charge of an insolvent bank.
7. ____: ____: Guaranty. Guaranty by the officers and directors of all assets of the bank is an asset of the bank upon which the creditors could not sue in the absence of a showing that the Commissioner of Finance in charge of the bank will not, or has not sued.
Appeal from Henry Circuit Court. — Hon. W.L.P. Burney, Judge.
AFFIRMED.
Barnett Hayes, C.A. Calvird, Jr., Roy D. Williams and Watson, Gage, Ess, Groner Barnett for appellant.
(1) Although the petition shows that no count of the petition prays for the recovery of more than $7,500, yet the total amount sought to be recovered under all the counts is $38,633.70. This is sufficient to confer jurisdiction on this court. Kitchen v. City of Clinton, 8 S.W.2d 602; Gilman v. Am. Producers, etc. Co., 180 Mass. 319; Hawley v. Fairbanks, 108 U.S. 543; Com. v. Chesapeake Railroad Co., 128 Ky. 542; Phoenix Hotel Co. v. Com., 153 Ky. 507; Fink v. Denny, 75 Va. 633; Priest v. Deaver, 21 Mo. App. 209; Washington Sav. Bank v. Butchers, etc., Bank, 61 Mo. App. 448; Correctness recognized by retaining jurisdiction 130 Mo. 155. (2) Plaintiff has legal capacity to sue. (a) The bond sued upon was made for the benefit of third persons. The guaranty of "all the liabilities of whatsoever nature . . . owing by said bank," and "if necessary, to pay all the obligations of the above bank," was a contract for the benefit of creditors. Therefore, a creditor might sue in his own name, as the real party in interest. Sec. 698, R.S. 1929; Binswanger v. Employers, etc., Co., 28 S.W.2d 454; Wiss v. Indemnity Co., 282 S.W. 164; Howsman v. Trenton Water Co., 119 Mo. 304; Rogers v. Gosnell, 51 Mo. 469; Zellers v. Natl. Surety Co., 210 Mo. 86; State ex rel. Blair v. Pitman, 111 S.W. 14, 131 Mo. App. 299; Wilson Co. v. Insurance Co., 300 Mo. 1. The beneficiary of a guaranty, or the assignee of the debt guaranteed, may sue upon the guaranty in his own name. 29 C.J. 1011; 28 C.J. 942, 1010; Lowery v. Fuller, 281 S.W. 968; Jobes v. Miller, 209 S.W. 549. (b) In one count plaintiff sued to recover the debt originally due him from the bank. In all other counts he sued as assignee of an obligation which had become complete. Under our statute the assignee of a matured obligation may sue in his own name. Lowery v. Fuller, 281 S.W. 972; Jobes v. Miller, 209 S.W. 549; Security State Bank v. Gray, 25 S.W.2d 512; McGowan v. Wells, 184 Ky. 772. (3) The petition states a cause of action. (a) and (c). The contract was not void even though no express statutory authority to take the guaranty was conferred. The instrument was good as a common law bond. State v. Cochran, 264 Mo. 581; LaCrosse Lbr. Co. v. Schwartz, 163 Mo. App. 659; C.A. Burton Mach. Co. v. Ruth, 196 Mo. App. 459; Nations v. Beard, 216 Mo. App. 33; State ex rel. LaFayette County v. O'Gorman, 75 Mo. 370; Williams v. Coleman, 49 Mo. 325. The statute contemplates that the Commissioner of Finance shall cause the bank to "make good the deficiency" in the financial strength of the bank, without directing how he shall require this to be done. Therefore, if requiring the guaranty in question was, in his opinion, an appropriate way to accomplish his purpose of substituting good commercial paper for bad or doubtful paper, he was acting within the scope of his authority. Sec. 5310, R.S. 1929. The provision seeking to protect the Commissioner of Finance was both nugatory and severable. 13 C.J. 512; Peltz v. Eichele, 62 Mo. 171; Trabue v. Ins. Co., 121 Mo. 75; Presbury v. Fisher, 18 Mo. 50; Sexton v. N. Mo. Cent. Railroad Co., 194 S.W. 1082; Schibi v. Miller, 268 S.W. 434. The petition alleges that the bank was allowed to remain open after the bond was accepted. The defendants may not receive all the benefits of the bond and thereafter repudiate its obligations. After the notes were guaranteed, the cause for closing the bank no longer existed. The Commissioner could not waive the right to close the bank thereafter if it should become impaired. (b) The agreement is not against public policy. Harris v. Briggs, 264 F. 726; First Natl. Bank v. Henry, 202 S.W. 281; State ex rel. Gordon v. Trimble, 318 Mo. 346; Brodrick v. Brown, 69 F. 497; Bidwell v. Railroad Co., 6 A. 729; Trust Banking Co. v. Irwin, 138 La. 335. The public policy is indicated by our statute which provides that whenever the Bank Commissioner shall have reason to believe that the capital stock of the bank is reduced, by impairment or otherwise, below the amount required by law, "he shall issue an order that such a corporation or private banker make good the deficiency forthwith or within a time specified in such order." Also, that whenever it shall appear to the Commissioner that either the total reserves or reserves on hand required to maintain such reserves are below the amount required by law to be maintained, or that the bank is not keeping these reserves on hand as required, "he may issue an order directing that such a corporation or banker make good such reserves forthwith or within a time specified in such order, or that it keep its reserves on hand as required by this chapter." Sec. 5310, R.S. 1929. The bond was not calculated to impair but rather to protect the rights of creditors. It is the spirit of the Missouri statutory law that the rights of the creditors of banks shall be protected. Section 5310, R.S. 1929. (d) There was a sufficient consideration for the guaranty. The petition alleges that it was given for the purpose of preventing the closing of the bank at the time and for the purpose of obtaining the permission of the Commissioner of Finance to permit said bank to remain open for business temporarily in order to perfect a re-organization and to collect or secure uncertain and doubtful assets and adjust unsatisfactory conditions. It is not necessary that the consideration for a guaranty move directly to the guarantors. It is sufficient if a consideration moves to their principal. 28 C.J. 921; Adams v. Huggins, 78 Mo. App. 219; Hill v. Coombs, 93 Mo. App. 264; DeLassus v. Russell, 296 S.W. 225; General Motors Acc. Corp. v. Holland, 30 S.W.2d 1087. (e) The agreement was a continuing guaranty. In determining the nature and purpose of the guaranty, the courts will put themselves in the position of the contracting parties and consider the circumstances under which the guaranty was executed and will not defeat the purpose of the contract by construction. Kansas City to use v. Youmans, 213 Mo. 151; St. Joseph v. Stone Co., 26 S.W.2d 1018; Gimbel Bros. v. Mitchell, 219 S.W. 676; Kansas City to use v. So. Surety Co., 219 S.W. 727; Smith v. Van Wyck, 40 Mo. App. 525; Bauman Jewelry Co. v. Bertig, 81 Mo. App. 393; Saginaw Medical Co. v. Dykes, 238 S.W. 556; Sitron Co. v. Friedberg, 195 S.W. 69; Boehne v. Murphy, 46 Mo. 57; Shine's Admr. v. Central Sav. Bank, 70 Mo. 524; Hurley v. Fidelity Dep. Co., 95 Mo. App. 88. In this case the agreement purports to guarantee all the obligations of the bank so that it might be solvent and thus be a proper institution to continue business. It is common knowledge that the creditors of the bank are in large part depositors who withdraw their deposits on demand and who make further deposits daily. If this was not intended to be a continuing guaranty, then it was the intention of the parties that the bank could hold itself out to be a solvent concern and thus procure new deposits wherewith to pay off the old deposits, and thus discharge the obligation of the guarantors but defeat the beneficial purpose of the guaranty. A construction of a contract which would render it nugatory will be rejected. 13 C. J 539, 540. While a guaranty will be strictly construed so as not to extend the liability by implication beyond its terms, yet this does not preclude the courts from applying to the guaranty contract the rules and tests applied to other contracts in endeavoring to ascertain the real meaning of the language used. Kansas City to use v. F.C. Youmans, 213 Mo. 151. In determining whether the contract is a continuing guaranty or for a single dealing, the true principle is to give the contract the sense in which the person making the promise believed the other party to have accepted it, and if the language is fairly susceptible of two interpretations, either of which is in the spirit of the guaranty, the guarantor is not at liberty to say that the person to whom it was given is not justified in acting upon either or that he should have acted upon one rather than the other. Kansas City to use v. Youmans, 213 Mo. 151. (f) It was not necessary that the guaranty be signed by anyone other than the guarantors. The Statute of Frauds only requires that an instrument be signed by the party to be bound. The Statute of Frauds provides that: "No action shall be brought . . . to charge any person upon any special promise to answer for the debt, default or miscarriage of another person . . . unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith." Sec. 2967, R.S. 1929. Under this statute the contract need be signed only by the party to be charged. Mastin v. Grimes, 88 Mo. 478; Cunningham v. Williams, 43 Mo. App. 629; Ivory v. Murphy, 36 Mo. 534; Moore v. Thompson, 93 Mo. App. 336; Mastin v. Grimes, 88 Mo. 478. (g) The petition sufficiently alleges that the agreement was accepted by the Commissioner of Finance. The petition alleges that: "The defendants entered into a written obligation by which they did agree to, and did, guarantee all the assets and all the liabilities . . . owing by said bank, and did guarantee the payment and agreed, if necessary, to pay all the obligations of the above bank." It is also alleged that: "Said Commissioner of Finance relied thereon and thereby was led to believe, and did believe, that said bank was thereby rendered solvent, and he was induced to permit, and he did permit, said bank to remain open for business." Also: "Said guaranty and contract was made and entered into by defendants for the benefit of all the creditors of said bank." An allegation that the defendants made and entered into a contract by which they did agree to certain things is a sufficient allegation that the defendants' offer was accepted. Allen v. Chouteau, 102 Mo. 309; Moots v. Cope, 147 Mo. App. 76; Reed v. Crane, 89 Mo. App. 670; Diamond Coal Co. v. Cook, 61 P. 578; Frick Co. v. Barrett, 52 N.E. 108; Louisville, etc., Railroad Co. v. Flanagan, 14 N.E. 370. (h) The suit was not prematurely brought. There is no rule of law which requires that a creditor may not sue upon the guaranty which secures his debt until he has exhausted his remedies against the original debtor. This was an absolute guaranty. The contract was not only to guarantee the liabilities of the bank, but also "to pay all the obligations of the bank." One who absolutely guarantees payment of a debt is in every respect a surety. Rouse v. Wooten, 14 N.C. 557; 28 C.J. 890, 891, 892; Vette v. J.S. Merrell Drug Co., 137 Mo. App. 229; Warder, etc., Co. v. Johnson, 114 Mo. App. 571; Osborne v. Lawson, 26 Mo. App. 549; Hill v. Combs, 92 Mo. App. 242; Wheeler v. Dake, 129 Mo. App. 547.
C.C. Dickinson, Nick M. Bradley, W.E. Suddath, Jas. A. Parks and W.E. Owen Son for respondents.
(1) The alleged agreement sued on is against the positive provisions of the laws of this State. (a) Extensions of time. The only statutes of this State authorizing Commissioner of Finance to make any extensions of time, are: For satisfactory cause to him shown the commissioner may grant extensions of time to corporations or private bankers to which this chapter is applicable, as follows: He may extend for not more than one year the time within which any such corporation may commence business. Such extension shall only be made by an order under his hand and official seal which shall be executed in triplicate and one copy thereof shall be filed in the commissioner's office, one in the office of the recorder of deeds of the county or city in which the articles of agreement of such corporation shall be filed, and the third shall be transmitted to such corporation. He may extend for not exceeding ten days in the case of a bank, trust company or private banker, and for not exceeding twenty days in the case of any other corporation to which this chapter is applicable, the time within which any such corporation or banker is required to make and file any report with the commissioner. In all other cases where, by any provision of this chapter he is given power to grant extensions of time, it shall be within his sound discretion to grant such extension, which shall be in writing and a copy thereof shall be filed in the office of the commissioner. R.S. 1929, sec. 5307. Whenever the commissioner shall have reason to believe that the capital stock of any corporation or private banker subject to the provisions of this chapter is reduced by impairment or otherwise, below the amount required by law, or by its certificate or articles of association, he shall issue an order that such corporation or private banker make good such deficiency forthwith, or within a time specified in such order. R.S. 1929, sec. 5310, (1). Whenever it shall appear to the commissioner that either the total reserves or reserves on hand of any such corporation or private banker required by this chapter to maintain such reserves, are below the amount required by law to be maintained, or that such corporation or banker is not keeping its or his reserves on hand as required by this chapter, he may issue an order directing that such corporation or banker make good such reserves forthwith or within a time specified in this order, or that it keep its reserves on hand as required by this chapter. R.S. 1929, sec. 5310, sec. 3. (b) Duties of commissioner as to insolvent banks. Whenever from an examination made by the commissioner, or by one of his deputies or examiners, it shall be discovered that any such corporation or private banker is insolvent, or that its or his continuance in business will seriously jeopardize the safety of his depositors or other indebtedness, and if the action is taken from an examination by an examiner and such examiner shall recommend the closing of the corporation or private banker, then it shall be the duty of the commissioner, if he approve of the recommendation, by himself or one of his examiners, immediately to close said corporation or private bank and take charge of all the property and effects thereof. R.S. 1929, sec. 5316, (2). This statute is found as Sec. 11700, R.S. 1919. By the Sessions Acts of 1927, page 210, there was a fourth section added to such statute (and which was not a part thereof at the time of giving the alleged agreement sued on in this action) viz: The powers and authority conferred on the commissioner by this section, except in case of voluntary surrender, shall be considered as discretionary and not as mandatory, and so long as the commissioner acts in good faith in the matter, neither he nor his deputies shall be held liable civilly or criminally or upon their official bonds in any action taken thereunder or for any failure to act thereunder. R.S. 1929, sec. 5316, (4). The General Assembly at 1929 session enacted a law, Session Acts of 1929, page 200, which repealed Sec. 11705, R.S. 1919, and enacted a new section in lieu thereof. (2) Alleged agreement against public policy. (a) Legislative determination of public policy. Public policy of a state is to be found in its statutes, and when they have not directly spoken, then in the decisions of the courts. But when the Legislature speaks upon a subject on which it has a constitutional right to legislate, public policy is what the statutes passed by it enacts. 9 Cyc. 482; State ex rel. v. Haid, 30 S.W.2d 105; State ex rel. v. Surety Co., 30 S.W.2d 105; Ins. Co. v. Railroad Co., 70 F. 201; Moorshead v. Ry. Co., 203 Mo. 165. Public policy is that principle of law which holds that no subject can lawfuly do that which has a tendency to be injurious to the public or to the public good. 32 Cyc. 1221; State v. Bowman, 184 Mo. App. 553. Citizens do not have an absolute right to make all contracts they deem proper. The State may prohibit such contracts that contravene the policy of its laws. Karnes v. Ins. Co., 144 Mo. 413; Hiller v. Lutz, 254 Mo. 714. (b) Contracts affecting official action. Agreement to procure appointment of administrator amounts to trafficking in an important trust, and such agreement is void as against public policy. Porter v. Jones, 52 Mo. 403; Schibi v. Miller, 268 S.W. 434. Contracts against prohibition of the statutes, to defraud the government or third parties, to oppress third parties, or induce a violation of public duty — are all against public policy and void. Koehler v. Ferrenbacher, 2 Mo. App. 14; State ex rel. v. Bowman, 184 Mo. 549; State v. Williamson, 18 Mo. 152. Bonds indemnifying an officer against loss for failure to execute process are void as against public policy. Harrington's Admr. v. Crawford, 136 Mo. 467; Johnson v. Ragsdale, 73 Mo. App. 594; Good v. Sleeth, 176 Mo. App. 634; Holcomb v. Summit, 15 S.W.2d 362. Any contract that places individual interest of public officer in conflict with his duty to the public is illegal. In determining validity of the contract its actual effect on officer is immaterial, and therefore the fact that contract did not have any corrupting effect on officer is immaterial. Ward v. Hartley, 178 Mo. 142; Carey v. Gossom, 204 Mo. App. 695; 13 C.J. 443; 9 Cyc. 482, 483. Transactions in violation of law cannot be made the foundation of a valid contract. Buckley v. Hermosen, 16 L.R.A. 423; Finley v. Williamson, 202 Mo. App. 287. If plaintiff cannot open his case without introducing immoral contract or one against public policy, the court will not hear him. Tyler v. Larimore, 19 Mo. App. 445; Pendleton v. Asbury, 104 Mo. App. 723; Funding Co. v. Heskett, 125 Mo. App. 540; Pulitzer Publishing Co. v. Nichols, 170 Mo. App. 709; 13 C.J. 492-496; Funding Co. v. Heskett, 125 Mo. App. 539.
This is an action by a depositor of a failed bank, on behalf of himself and other depositors, to recover the amount, remaining due on their deposits, after crediting thereon certain dividends received from the Commissioner of Finance liquidating the bank. Seventy-seven other depositors assigned their claims to appellant. The case is here on the pleadings, the trial court having sustained a demurrer to the petition. Appellant's petition alleged that respondents, former directors of the Farmers Bank of Leeton, in 1922, executed a contract between themselves and the Commissioner of Finance (the Commissioner did not sign it), the material parts of which are, as follows:
"WHEREAS, the said second party has, by his examiner, Collins E. Bushnell, made an examination of the Farmers Bank of Leeton, Leeton, Missouri, and
"WHEREAS, the said second party believes, as a result of said examination, that the above named bank has certain assets of slow, uncertain and doubtful value which will result in a substantial loss to said bank; therefore, the capital stock of said bank is believed to be impaired and the bank in an insolvent condition;
"Now, therefore, in consideration of said second party agreeing not to take over the affairs of the above named bank and granting them permission to remain open for business temporarily, in order to perfect a reorganization and to collect or secure such uncertain and doubtful assets and adjust such unsatisfactory conditions as exit, the parties of the first part agree to and do guarantee all the assets and all the liabilities of whatsoever nature, except liabilities to stockholders as such for their capital stock, owing by said bank and guarantee the payment and agree, if necessary, to pay all the obligations of the above named bank on demand at maturity of each and every such obligation of the above named bank and in further consideration of the above privilege being granted by the second party, the first parties hereby release and discharge second party of all obligations of every kind and character and agree to hold him harmless on account of above permission."
Appellant's petition stated that this instrument was executed after an examination of the bank from which the examiner was of the opinion that the bank was not in a solvent condition; that its capital stock was impaired; and that it had assets of uncertain and doubtful value which would result in substantial loss. The petition stated that the Commissioner of Finance contemplated closing the bank; that for the purpose of preventing its closing and to obtain permission to remain open for business, temporarily, in order to effect a reorganization and to collect or secure the uncertain and doubtful assets respondents executed this contract. The petition further alleged that this was done for the purpose of making the bank solvent; that the Commissioner of Finance relied on it, believed that the bank was rendered solvent by it, and permitted the bank to remain open for business; that it was made for the benefit of all creditors of the bank and was a continuing guaranty for the benefit of all persons who should become creditors or depositors of the bank thereafter; that on October 7, 1925, the bank was closed by the Commissioner of Finance and is in the process of liquidation; and that during such liquidation dividends in the amount of 40 1/3 per cent have been paid. These allegations are followed by seventy-eight specific counts, which adopted them, stated the amount for which each depositor's claim was filed, and allowed in the liquidation proceedings; stated the amount which remained unpaid after crediting the dividend thereon; and alleged the assignment of the claim to appellant. The total amount sued for is $38,633.70. Respondents' demurrer stated two grounds: That the petition did not state facts sufficient to constitute a cause of action, and that it appeared upon the face of the petition that plaintiff had not legal capacity to sue. Upon the court sustaining the demurrer, appellant declined to plead further, and judgment was entered for respondents. Appellant appealed from this judgment.
I. The demurrer was well ruled. Assuming that a cause of action could arise against respondents out of the instrument executed by them, none is stated in the petition in this case. A consideration of the instrument and its purpose as disclosed by it and the facts pleaded in the petition will determine this question. Clearly, it was executed because such a substantial part of the bank's assets were of doubtful value that the examiner, at the conclusion of his examination, believed the bank was insolvent and would have to be reorganized. This meant additional capital would have to be raised. Evidently the directors believed that some of the assets, which the examiner doubted, could be collected or secured. The amount which could be collected or put in satisfactory condition would necessarily make a difference in the amount of new capital to be raised. To show their faith in the bank's assets, which no doubt they, as directors, had been instrumental in acquiring, they agreed to guarantee all the assets of the bank. They also agreed, if necessary (which undoubtedly meant, if necessary, because the assets of the bank were not of sufficient value to pay its debts), to pay all its liabilities except its liability to its stockholders. We think the agreement is essentially a guaranty of the assets of the bank. Whether the depositors, for the recovery of whose deposits this suit is brought, were depositors at the time this guaranty was made or became depositors while the assets guaranteed were owned by the bank, whether these same assets, or any of them, are now in the hands of the Commissioner; whether the bank was reorganized, the unsatisfactory conditions referred to remedied, the bank put in a solvent condition, the guaranteed assets collected or replaced and the agreement thereby became functus officio; or whether the bank was given extensions of time to collect and secure its assets and reorganize, we are not informed by the pleadings. These and other facts are necessary to state a cause of action and to show whether or not any cause of action now exists against respondents on their agreement.
II. However, regardless of these questions, the second ground of the demurrer must be sustained. Even leaving out of consideration the fact that the agreement was made to the Commissioner of Finance, we think that, at least while the Commissioner has charge of the bank for liquidation, no depositors or other creditors can maintain such a suit as this. [2] It is ordinarily true that a receiver stands in the place of a corporation and can enforce only such rights as the corporation could enforce, but for some purposes and under some circumstances, the receiver represents not only the corporation but also the creditors, and when this is so the rights of the creditors should be worked out through the receiver. [14a C.J. 990, sec. 3232; 53 C.J. 324, sec. 537.] Especially do receivers of banks hold its assets in favor of and have the duty to assert and to guard the claims of depositors and other creditors as the paramount and superior claims against its assets. [7 C.J. 735, sec. 702.] This is true from the very nature of banking, affected as it is with the public welfare and involving as it does, in case of insolvency, the rights of so many people who are unable to adequately protect their interests. Recognizing this, our Legislature has adopted a special kind of receivership for the liquidation of insolvent banks. [Art. 1, Chap. 34, R.S. 1929; see Koch v. Missouri-Lincoln Trust Co., 181 S.W. 44.] This receivership is through an officer experienced in banking, the Commissioner of Finance. His duties and the procedure to be followed in the liquidation of insolvent banks are there set forth. [3] Section 5318, Revised Statutes 1929, prohibits banks from making an assignment and requires them, when in a failing condition, to be placed in the hands of the Commissioner. If this is not done by the bank itself the Commissioner is authorized by Section 5316 to take possession when it is discovered to be insolvent. When the Commissioner comes into possession he becomes an officer of the court, holding the assets of the bank in his hands as a trust estate, to be administered under the direction of the circuit court of the county, in which the bank is located, for the benefit of the depositors and other creditors of the bank. [Secs. 5323, 5324, 5325, 5326 and 5330, R.S. 1929.] By Section 5332, he is given the power to sue in the name of the bank for the purpose of executing any of his powers or performing any of his duties and he may also execute conveyances and other instruments, necessary for the same purposes, in the name of the bank. [Bank of Oak Ridge v. Duncan, 328 Mo. 182, 40 S.W.2d 656.] By Section 5341, he is authorized, at any time during the liquidation within six years after accrual of the cause of action, to maintain in his name as Commissioner any action, vested in the corporation, its stockholders or creditors, against its officers or directors. Sections 5333, 5334, 5335, 5336 and 5337 provide the notice to be given depositors and other creditors, the procedure to be followed by depositors and other creditors in establishing claims, and for payment thereof so far as the funds derived from the assets of the bank will pay them. It is even provided by Section 5340 what shall be done with any assets remaining in case depositors and other creditors should be paid in full.
We think that the plain meaning and intent of this procedure is that all depositors and other creditors shall share equally in proportion to their claims from any funds it is possible to collect from the assets of the bank, the liability of the officers and directors to the bank for losses caused by negligence or mismanagement, and likewise from any obligations the officers or directors may have undertaken to preserve its solvency. We think that it is likewise its plain intent and meaning that claims to share in funds, derived from any of these sources, shall be established in the liquidation proceedings, through action thereon, by the Commissioner or the court in which he is administering the trust estate; and that the Commissioner shall collect any funds, it is possible to collect, from any of these sources and apply them proportionately to the payment of the claims of the depositors and other creditors at such times as he may be authorized and directed to do so by the court. Any other interpretation would make equality among depositors and other creditors impossible. If a depositor or a group of depositors could bring such actions as this one, it would result in preferring one general creditor over another. Our statutes, providing the procedure for liquidating banks, intend that all general creditors should be treated alike.
Of course, depositors who have been individually wronged, by any of the officers or directors or by all of them together, by reason of their deposits having been received with knowledge that the bank was in failing circumstances have their remedy against such officers and directors under Sections 5381, 5382 and 5383, Revised Statutes 1929. [Ivie v. Bailey, 319 Mo. 474, 5 S.W.2d 50.] Even prior to the enactment of our present laws, providing for this special receivership by the Commissioner, this court held: "That there could be no recovery by depositors against directors of a bank because of the negligence of the directors in managing the affairs of the bank; and that the directors are liable for negligent performance of duty to the bank, or to its assignee or to a receiver thereof." [Fusz v. Spaunhorst, 67 Mo. 256; Union Natl. Bank v. Hill, 148 Mo. 380, 49 S.W. 1012; Utley v. Hill, 155 Mo. 232, 55 S.W. 1091, 49 L.R.A. 323, 78 Am. St. Rep. 569; Stone v. Rottman, 183 Mo. 552, 82 S.W. 76; see, also, Kroeger v. Garkie (Mo. App.), 274 S.W. 478; 7 C.J. 569, sec. 177, p. 747, sec. 541; 3 R.C.L. 466, sec. 97, p. 470, sec. 99; Douglass v. Dawson (N.C.), 130 S.E. 195; U.S.F. G. Co. v. Corning State Sav. Bank (Iowa), 134 N.W. 857, 45 L.R.A. (N.S.) 421 and note.]
From these authorities it seems that where a creditor has suffered a wrong not common to all other creditors, he may recover of the officers and directors responsible for it; for instance (in addition to statutory liability for receiving deposits), an action for deceit (7 C.J. 735, sec. 501; 3 R.C.L. 471, sec. 100); [6, 7] but that where the amounts for which officers and directors may be liable result from matters affecting all creditors they constitute assets of the corporation for the benefit of all creditors, and suit therefore must be brought by the receiver. They hold further that where the receiver refuses to bring the suit, upon demand, creditors have a remedy in equity to maintain the suit on behalf of all creditors. The present suit is not such an action in equity on behalf of all creditors. It is an action at law by one creditor seeking to recover from the directors what is due him and certain other creditors whose assignment he holds. It is not shown that the Commissioner will not, nor even that he has not, sued on this instrument. There can surely be no doubt that a quaranty, of all the assets of a bank, is an asset of the bank as much as is the liability of directors for acquiring worthless assets for it by mismanagement or neglect of their duties. It is indeed likely that they signed this guaranty because they recognized that liability. While Part I hereof required affirmance of this judgment, it is important, to both the parties entitled to the benefit of this guaranty if any one is, and those who made it, that this court rule on who is entitled to enforce it.
The judgment is affirmed. Ferguson, C., concurs; Sturgis, C., concurs in Part I and the result.
The foregoing opinion by HYDE, C., is adopted as the opinion of the court. Gantt, P.J., Atwood and Frank, JJ., concur; Ragland, J., concurs in Part I and result.