57 S. Ct. 543, 81 L. Ed. 827. That procedure has not been followed in the instant case. This suit is not against the stockholders of the Bank, but against the Bank itself and its liquidating trustees. It is based upon the assumption that by virtue of the agreement sued upon, the Bank assigned to the Trust Company the statutory liability resting upon its stockholders by virtue of the laws of the United States. That the Bank did not do. What the Bank conveyed by that agreement is defined by the first paragraph of the agreement of July 22, 1930 (Exhibit A) attached to the statement of claim as follows:
"First: The Bank hereby grants, bargains, sells, assigns, transfers and sets over unto the Trust Company, all of its property and assets of every kind, character and description, real, personal and mixed, as owned and possessed by it, at the close of its business on July 22, 1930, and including all of its cash, currency, gold, silver, specie, notes whether promissory, judgment or collateral, together with any and all collateral securing said notes, trade acceptances, accounts receivable, choses in action, stocks, bonds, judgments and mortgages, together with the bonds thereby secured. Complete schedules of said property and assets shall forthwith be made, which schedules shall contain a sufficient description of each item of property to reasonably identify it, and shall be authenticated by the signatures of the parties hereto, and be and become a part hereof."
The statutory liability of the stockholders of the Bank was not an asset of the Bank. It is a liability imposed by statute on the stockholders, which is enforceable against them only in the manner pointed ont by the statute. The Bank itself had no right or obligation to enforce the statutory obligation, and therefore could not assign it.
In paragraph eighth of the agreement it is provided as follows: "Eighth: The Bank will not again engage in business without the consent of the Trust Company and in order to effectuate the assignment of the stockholders' liability under the law of the United States Hereinbefore made and to better enable the Trust Company to enforce such liability, the corporate existence of the Bank shall be continued until the absorption and liquidation of its assets is completed, and the liability of the stockholders may be enforced for the payment and collection of any deficit that may result from the absorption and liquidation of such assets. To better evidence this liability, the Bank will execute, pursuant to resolution of its Board of Directors duly adopted, a note payable to the order of the Trust Company sixty (60) days after demand, in the sum of One Hundred Thousand ($100,000.00) Dollars, which note shall be authenticated by the signature of the President and cashier of the Bank and its corporate seal." This paragraph is entirely ultra vires the Bank. It had no power to assign the stockholders' liability, or to give a note for $100,000 to effectuate such an assignment.
We therefore hold that the statement of claim fails to state a cause of action upon which relief may be granted, and will enter an order dismissing the action on that ground.
An order in accordance with this opinion may be submitted.
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