decided: August 13, 1946.
ANDREWS ET AL.
Before GOODRICH and Mc,LAUGHLIN, Circuit Judges, and KALODNER, District Judge.
GOODRICH, Circuit Judge.
This is a suit by the receiver of a defunct national bank to recover against shareholders their liability upon an assessment.*fn1 The suit was brought against the shareholders in the federal court for the Eastern District of Pennsylvania. It was begun more than five years and less than six years after the cause of action had accrued.*fn2 These dates present the significant facts for the application of a rule of law to the one disputed question on this appeal. There is no federal statute of limitations limiting the time in which shareholders' liability in a national bank may be enforced. The local law of limitations, therefore, is applicable.*fn3 The applicable statute of limitations in Pennsylvania is six years.*fn4 But Pennsylvania, along with the majority of other states, has a "borrowing" statute.*fn5 The borrowing provision reads as follows: "When a cause of action has been fully barred by the laws of the state or country in which it arose, such bar shall be a complete defense to an action thereon brought in any of the courts of this Commonwealth."*fn6
This moves us to the question in the case. The Kentucky period of limitations applicable to such an action as this is five years.*fn7 The national bank, whose shareholders are now being sued, has its principal banking office in the City of Louisville, Kentucky.*fn8 The defendants say that the Pennsylvania borrowing statute protects them from suit in a federal court in Pennsylvania. The theory of the defense is that this cause of action arose in Kentucky. By the statute of limitations of Kentucky the action was brought too late, it having been commenced, as already stated, more than five years after the liability accrued. The terms of the Pennsylvania borrowing statute, therefore, they say, became applicable and the suit is brought too late here.*fn9
The theory upon which the defendants urge that this action arose in Kentucky is something like this. The liability of the shareholders to pay as assessment upon stock is contractual in its nature. This contract was performable at the office of the Receiver at his stated address in the City of Louisville, Kentucky, because that is really where the Receiver's notice to shareholders indicated that payment should be made. The cause of action for breach of contract arises under the law of the place where the promisor had a duty to perform and failed to perform. Since that place was the specified office building in Louisville, the cause of action arose there just as the cause of action in tort would arise under the law of the place of wrong. There are authorities which, applying these borrowing statutes, follow the rules suggested as to the place of claim for breach of contract and tort.*fn10
This argument is all right if it is said quickly without parsing it. But we do not think that it is accurate as a matter of legal analysis to say that a shareholder's liability on his stock is contractual.*fn11 The unfortunate shareholder does not promise to pay a shareholder's liability equal to the par value of his stock if the bank fails. The obligation is imposed on him by law. Perhaps it can be called "quasi contractual" if that helps to distinguish it from liability based upon intentional or negligent misconduct. But this fact does not make a suit to enforce the shareholder's liability the enforcement of a promise made by the shareholder. Nor are we satisfied that when the Receiver named his office as the place where checks could be sent to pay this assessment that this made the office the "place of performance". The recipient of the payment was really not the Receiver but the Comptroller General of the United States who, obviously, is not located in Kentucky.*fn12 Even on defendants own theory, therefore, we find it hard to see that the facts of their case fit the legal rule on which they base immunity.
There is a wider ground, however, on which we think the defendants are wrong and which compels a reversal of the judgment of the District Court. The approach, we think, is found in the language of Mr. Justice Frankfurter speaking for the Court in Holmberg et al. v. Armbrecht, et al., 66 S. Ct. 582, 584. In the case which involved liability of shareholders in the Southern Minnesota Joint Stock Land Bank he said: "We do not have the duty of a federal court, sitting as it were as a court of State, to approximate as closely as may be State law in order to vindicate without discrimination a right derived solely from a State. We have the duty of federal courts, sitting as national courts throughout the country, to apply their own principles in enforcing an equitable right created by Congress." In our case the liability imposed upon the shareholders of national banks for the benefits of their creditors is not a state created right, but one created by United States statute. The liability extends to all shareholders regardless of the state where the bank has its principle place of business and regardless of where shareholders live. In dealing with it the rules applicable are not those in which a federal court, sitting in a diversity case, applies state law as accurately as it can. It is, rather, one of those instances where federal courts are enforcing rights arising out of transactions governed by the federal government acting within its constitutional field. Ordinary state rules of law are not applicable to create or to limit the claim.*fn13 We think, therefore, that this is not the kind of cause of action which is properly described as arising within the State of Kentucky. It did not arise there any more than it did in any other one of the states of the United States.*fn14 We conclude, therefore, that the borrowing provision of the Pennsylvania statute of limitations is not applicable. It is not disputed that the action is timely brought unless the borrowing statute may be availed of to bar it. The conclusion necessarily follows, therefore, that it may be maintained, so far as the time element is concerned and this is the only point up for our decision at this time.
In reaching this conclusion we are quite conscious that we are in disagreement with our brethren of the Sixth Circuit in the decision they reached in Helmers et al. v. Anderson, 6 Cir., 1946, 156 F.2d 47, a case decided since the submission of the one at bar. We have read the carefully prepared opinion in that case, but are still constrained to follow the view of the matter which we have expressed above.
The judgment of the District Court is reversed and the case remanded for further proceedings in conformity with this opinion.