receiver as they existed when collection had been made from plaintiffs. The complaint then alleges that the defendant stockholders were indebted to plaintiffs (all who paid the assessment) in the full amount of the assessments against said defendants, with interest from date of assessment by Comptroller, less a credit of 25% (amount refunded paying stockholders by receiver on August 2, 1938). Then followed prayers, inter alia, that judgment be entered against the non-paying stockholders in favor of plaintiffs for the amounts claimed and that the defendants be ordered to pay the amount of said judgments to the receiver, and that the receiver be ordered to distribute said amount to the stockholders entitled to receive the same.
The National Bank Act is a complete and exclusive system for the formation, operation and winding up of the affairs of national banking associations. The power of ordering and enforcing assessments has been given the Comptroller and his agent, the receiver, by that act, and is not to be grasped by others. Cook County Nat. Bank v. United States, 107 U.S., 445, 2 S. Ct. 561, 27 L. Ed. 537; Moss v. Furlong, 6 Cir., 93 F.2d 182. Plaintiffs are not entitled to that part of the relief prayed which is based upon their claim of the right to be subrogated to the powers of the receiver as they existed when the assessments were paid; and it follows that assessments upon the non-paying stockholders cannot be ordered by the court to be paid to the receiver for the benefit of those who have paid. The right of assessment ceased when the receiver thereby collected a sufficient fund to pay the creditors of the bank and administration expenses.
But while subrogation is not available to plaintiffs, the right of contribution, in the opinion of the court, does exist. And this right plaintiffs claim by amendment of their complaint. Direct decisions to this effect in cases arising under the National Bank Act have not been cited to the court. In First Nat. Bank v. First Nat. Bank, D.C., 14 F.2d 129, the right of contribution is inferred, although not directly stated. The right, if it exists, must depend upon decisions upholding the broad equitable principle that persons who are equals in the duty of bearing a common burden may be compelled by their associates to bear their share of that burden. See Lex v. Sellway Steel Corp., 203 Iowa 792, 206 N.W. 586; Putnam v. Misochi, 189 Mass. 421, 75 N.E. 956, 109 Am.St.Rep. 648, 4 Ann. Cas. 733.
As against the right of contribution claimed by plaintiffs it has been urged that the assessment liability of a shareholder of an insolvent national bank is an individual liability unrelated to that of other shareholders, and there being no joint responsibility among such shareholders under any act of Congress, no right of contribution exists. In support of this claim counsel for defendants has pointed to the change in the wording of Section 5151 (Act of 1864) by the Act of December 23, 1913, 38 Stat. 273, 12 U.S.C.A. § 63. By the original text shareholders were "held individually responsible, equally and ratably, and not one for another, for all contracts, debts * * * of such association [national banking]." By the Act of December 23, 1913, the words "equally and ratably" were omitted. This omission, it is claimed, shows the intention of the Congress to do away with any question of contribution.
We do not so interpret the omission. According to the practice under the Act of 1864, the shareholders of an insolvent bank were joined as defendants in a suit in equity. This practice tended strongly to delay collection of assessments and it was the intent to obviate this cumbersome procedure and delay and to facilitate collection of a fund to pay creditors, and not any desire to affect the relation between shareholders, which led the Congress to the omission.
As has been stated, supra, the plaintiffs have amended their complaint, inserting, inter alia, a declaration to the effect that the receiver had returned to a non-paying stockholder certain collateral which had been deposited to secure the assessment upon him. No amendment of the prayers of the complaint was made, but in the petition for the order to allow the amendment the court is asked to order the receiver to account to the plaintiffs for the value of the collateral released.This phase of the amendment introduces an element which is not germane to the main cause of action. If the complaint is to stand, it must do so as a bill for contribution; and certainly the plaintiffs cannot claim contribution from the receiver. If the receiver failed in his duty by returning the collateral after the collection of sufficient funds to pay creditors, and his failure led to the ultimate injury of plaintiffs, a complaint therefor cannot be tacked on to a complaint whereby contribution is sought from shareholders.
The motion to dismiss on the part of The Third National Bank of Pittsburgh and of Andrew B. Berger, receiver, will be granted, and all other motions dismissed.
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