Wasson v. Boland , 136 Mo. App. 622 ( 1909 )

ELLISON, J.

Plaintiff filed a demand against the estate of John Boland, deceased, in the probate court of Putnam county, based on a bank certificate of deposit. The case was appealed to the circuit court where the plaintiff had judgment for the amount, less credits.

It appears that the Bank of Lineville did business as a corporation in Iowa until at the expiration of twenty years its franchise expired under the terms of the statute of that State. That after the expiration of the life of the charter the bank continued business, as before, for several years, when it became insolvent and was placed in charge of a receiver, who paid a portion of the sum due on the certificate. It was during the period after the expiration of the charter and before the insolvency, while doing business as it had always done, the deposit was made and the certificate issued which is the basis of this controversy. The certificate was issued to Francis Walker and by him assigned to this plaintiff.

It appeared in evidence that certain of the officers and stockholders of the bank stated themselves to be partners and that a suit was instituted in this State on a claim of the bank in which it was alleged that it was a partnership. It also appeared that the application for a receiver stated the bank to be a partnership. But it further appears that to meet the demands of creditors the receiver made assessments against the stockholders under the banking law of Iowa. It does not appear that Boland knew of any claim or admission of partnership.

The demand when presented or filed by plaintiff in the probate court, only lacked four days of being barred by the statute of limitations for the presentation of claims against estates of deceased persons. After the limitation period expired plaintiff filed an amended petition. The law in this State is that though an action be brought before the period of limitation has expired, if an amended petition be filed after the period, changing the cause of action, it will be regarded as “a fresh suit upon a new cause of action,” and will be barred. [Buel v. Transfer Co., 45 Mo. 562; Fields v. Maloney, 78 Mo. 172; Scovill v. Glasner, 79 Mo. 449; Sims v. Field, 24 Mo. App. 557.]

It is held that a failure to object to the amendment will be a waiver. There was no objection in this case. But that relates merely to the question of waiver of right to make the amendment. It does not affect the matter of the running of the statute of limitations, as will be seen from the opinion of Judge Hall in Sims v. Field, supra.

So the question is whether the amendment changed the cause of action. The object of both the original and amended petition was to hold the estate on the ground of partnership. The original claim was as follows:

“The estate of John Boland, deceased, to Mary A. Wasson, Dr.

“Balance on certificate of deposit of Bank of Line-ville, Iowa, No. 18248, a copy of which is hereto attached marked Exhibit “A” and made a part thereof, $2,800.

“The said John Boland was the owner of 20 shares of stock in said Bank of Lineville, a copartnership doing business under the firm name and style of the Bank of Lineville. The said certificate marked exhibit “A” was issued to Frances M. Walker and by her assigned to claimant, Mary A. Wasson.”

Exhibit “A.”

.“$5,277.62 ' No. 18248.

“Not subject to check.

“Bank of Lineville.

“Lineville, Iowa, April 14, 1904.

“Frances M. Walker has deposited in this bank Fifty Two Hundred Seventy Seven and 62-100 Dollars payable to the order of self six months after date at 6 per cent in current funds, on return of this certificate * properly endorsed. If duplicate unpaid.

“Certificate of deposit. A. L. Rockhold, Cashier.”

The amendent is a lengthy pleading but the substance of it is that the contract evidenced by the certificate of deposit was made in Iowa and was governed by the laws of that State. The various statutes of that State are then pleaded; among others, section 1069, Code of 1873, providing that corporations for banking could not be organized for a longer period than twenty years, and that by section 1629, Code of 1897, if one continued after that period it could only be for the purpose of winding up its affairs and not to take new business. That by section 1863, Code 1897, a banking corporation could only be organized in the manner therein stated, which is set out in the petition. That by section 1842 of such code it was provided that certain notice, etc., of the organization of the corporation should be given. That by section 1864 the officers .of the corporation should not commence business until they had made certain sworn statements to the State Auditor of Iowa. That by section 3468 an action on a claim or demand against a partnership may be brought against any one of the members thereof as an individual liability. And, finally, it was pleaded that according to the provisions of section 3443 of such statutes, all actions survive, “under which provision plaintiff alleges that his said claim survives and may be brought against the representatives of said John Boland, deceased.” It was also appropriately pleaded that the corporate life of twenty years allowed by the statute aforesaid for the Bank of Lineville, had expired and that its officers and stockholders did not reorganize, nor did they attempt to wind up the affairs of the bank, but continued to do a banking business as before and under the same name, and that during this time after? the expiration of its charter, it received the deposit in' controversy.

The purpose of the petition was to set forth that the corporate life of the Bank of Lineville had ceased when it received the deposit and that it received such deposit while conducting the bank as a going concern, as had been done for several years, without any intention to wind up its affairs; and that by reason thereof the stockholders became merely partners doing a banking business as a partnership, and that deceased was liable as one of such partners.

In our opinion the amendment was the substitution of a new action. One test constantly made is whether evidence to prove one will support the other. [Ross v. Mineral Land Co., 162 Mo. 317; Heman v. Glann, 129 Mo. 325; Lumpkin v. Collier, 69 Mo. 170; Scovill v. Glasner, 79 Mo. 449.] The rule is clearly illustrated by the decision in McHugh v. Transit Co., 190 Mo. 85, where it is held that a complaint for damages for common law negligence and one for statutory negligence are two different causes of action and cannot be joined in the same count, though they relate to the same injury.

It can be said of this amendment, as was said by Hall, J., in Sims v. Field, supra, that “That proof required by one petition was entirely different from the proof required by the other. And this difference was as to the character of the proof and not as to the quantity of proof only. The entire proof required by the original petition would not have been sufficient under the amended petition.” The mere fact that the action stated in the amendment might have been joined in the same petition, in a separate count, with that stated in the original, or that the subject-matter of each may be the same, does not determine whether the cause of action has been changed. From which it follows that though the original and the amendment are acting on the same certificate, that fact does not prevent application of the rule. It needs but the suggestion to show that the cause shown in the-original and that set up in the amendment, though relating to the same subject, are altogether different and that proof of the original would fall far short of supporting the amendment. We .are of the opinion that the statute of limitations bars the claim.

There is another reason urged by counsel in behalf of defendant why plaintiff cannot recover, which we think to be sound. That is that by the law, as administered in Iowa, the stockholders of a corporation wrhich continues to do business after its charter has expired cannot be held as partners in the absence of a statute imposing such liability. [Seaton v. Grimm, 110 Iowa 145 (81 N. W. 225).] It is said in that case that “The great weight of authority, in the absence of a statute, is that where a supposed corporation is doing business as a de facto corporation, the stockholders cannot be held liable as partners although there may have been irregularities, omissions or mistakes in incorporating or organizing the corporation.” And the same is held in Clausen v. Head, 110 Wis. 405 (85 N. W. Rep. 1028), a case much like the case at bar, where it was undertaken to hold stockholders of an insolvent bank as partners. See also 1 Cook on Corp., sec. 234. We do not consider that Elson v. Wright (Iowa), 112 N. W. 105, cited by plaintiff, in any way qualifies those cases.

-But, as will be noticed in the statement of the case, it was attempted to.be shown that the stockholders considered themselves to be partners and so conducted the business. We do not think there was sufficient in the evidence to justify a finding that deceased was knowingly a party to any change in the mode of operating the bank, or any change in the relationship of the stockholders. To him the bank was continued as a de facto corporation.

The judgment will therefore be reversed.

All concur.