Treadwell v. Riley , 106 Fla. 68 ( 1932 )

In this case the defendant in error sued plaintiff in error on a stock assessment levied by the Comptroller against the plaintiff in error as a stockholder in the State Bank of Boca Grande after such bank became insolvent. The defendant filed one plea, which was in the following language, to-wit:

"That he was not the owner of ten shares of the capital stock of the State Bank of Boca Grande of the par value of $100.00 per share on the 16th day of February 1929, nor was he owner of any other shares in said bank on said date, and denies any liability for the alleged assessment made against him on the 24th day of April, 1929, by the Comptroller of the State of Florida."

The plea states a conclusion of law but as no demurrer was filed we will consider it as a plea denying that the defendant became and was liable as a stockholder in the defunct bank for the amount of an assessment made by the Comptroller. The plea did not put in issue any other matter.

The right of the Comptroller to make an assessment against stockholders is settled in this jurisdiction by the opinion and judgment in the case of Tunnicliffe vs. Noyes, 135 So. 505, filed June 6, 1931.

The declaration shows that the plaintiff was appointed Receiver of the Bank on February 22, 1929. The defendant in the court below took the stand and testified in his own behalf. He testified that in the summer of 1929 (which date, we assume, is error as he must have intended to say in the summer of 1928), "I gave to my son Vivian Treadwell the ten shares of stock now in question." He further testified as follows:

"I thereupon prepared a form of assignment of the Certificate No. 2, and signed it, and had the same witnessed, and the certificate for some reason was left upon the desk — as I recall — of the young lady in my office to whom it was dictated. Several weeks after its execution she called my attention to the fact that the assignment had never been mailed to the State Bank of Boca Grande. I thereupon dictated a letter either to the Cashier of the Bank or the bank itself enclosing the assignment in question. That letter, from memory, was dated the 16th of February, 1929. The assignment requested the transfer of this stock — of this certificate — from myself to my son above mentioned. The assignment was returned to me later either by the Cashier or someone connected with the Bank, advising that it arrived too late as the bank has closed its doors, and I don't know what became of the assignment, except that it was returned to my office. That's all."

The defendant also testified that the transfer of the certificate from himself to his son was "purely a gift;" that the assignment was made in the month of December, or not later than that. He testified that the bank closed its doors on February 16th, 1929.

Under the statute, Sec. 4128 R. G. S., as amended by chapter 13576, Acts of 1929, it is provided:

"Stockholders who shall have transferred their shares or registered the transfer thereof within six months next before the date of the failure of such company to meet its obligations, or with knowledge of such impending failure, shall be liable to the same extent as if they had made no such transfer, to the extent that the subsequent transferee fails to meet such liability; but this provision shall not be construed to affect in any way any recourse which such shareholders might otherwise have against those in whose names such shares are registered at the time of such failure. Provided the seller shall have notified the bank in writing by registered mail or taken receipt from bank therefor."

It, therefore, appears that the attempted registration of the assignment by Mr. Treadwell, according to his own evidence, was made within six months before the date of the failure of the bank, and, under the provisions of the statute above quoted, he was liable the same as if he had not attempted to transfer the stock to his son.

The declaration contained necessary allegations to, establish the liability of the defendant. The defendant did not plead the general issue, but only attempted by his plea to set up as a defense that he was not a stockholder of the defunct bank at the time of the failure of the bank. The plea was defective in that it constituted no defense under the provisions of the statute, but as it was allowed to stand without challenge, we have considered it in its strongest possible phase to have been a plea denying liability as a stockholder because the defendant was not a stockholder at the time of the failure of the bank or by implication within the statutory period prior to the failure of the bank. All other allegations of the declaration were admitted by the defendant's failure to traverse or deny the same. His own testimony shows his liability as a stockholder and, therefore, there is no error in the judgment and same should be affirmed. It is so ordered.

Affirmed.

ELLIS AND BROWN, J.J., concur.

WHITFIELD, P.J. AND TERRELL AND DAVIS, J.J., concur in the opinion and judgment.

ON REHEARING.