It is urged in brief and argument that the divisional opinion should not be adopted because, under *Page 349 Sections 5200 and 5239, Revised Statutes of United States 1878, "directors of national banks who permit loans above ten per cent of the capital and surplus to any one person are personally liable to the bank for the loan."
Section 5200 limits the liabilities to the bank of any one person, firm or company for money borrowed to ten per cent of the capital and unimpaired surplus of the bank. But, by subdivision one of the proviso found in said section, "the discount of bills of exchange drawn in good faith against actually existing values, including drafts and bills of exchange, secured by shipping documents conveying or securing title to goods shipped, . . . shall not be considered as money borrowed within the meaning of this section."
It appears from respondents' opinion that the Sprowl account "was made up of drafts with bills of lading attached, on which there had been advanced to Mr. Sprowl, a dealer and shipper of produce, said amount." The Sprowl indebtedness was of the class exempted by the proviso of Section 5200 above quoted. The bank was therefore not limited as to such indebtedness to ten per cent of its capital and unimpaired surplus and the act of relator in knowingly permitting the same to exceed ten per cent of the capital and surplus, if he did knowingly do so, was not such a violation of Section 5200 as made relator personally liable under Section 5239, Revised Statutes of United States 1878. Hence, it may not be said as a matter of law, in view of such sections of the Federal statutes, that relator could not make the defense that there was an agreement between the bank and the directors to repay the money advanced by relator and the other directors.
It is further urged that the divisional opinion should not be adopted because relator was liable, under Section 5151, Revised Statutes of United States 1878, to an assessment of $100 per share and because relator testified that he voluntarily put up the money to keep the bank from being closed. Respondents' opinion discloses that relator testified in the same connection to an agreement or understanding that the money advanced should be repaid.
The liability of shareholders of national banks, to the extent of the par value of their stock, in addition to the amount invested in such shares, provided for by Section 5151, is limited to contracts, debts and engagements of such banking association. Such liability apparently does not become fixed as to uncollectible debts due to such banking association until such uncollectible debts so impair the bank's capital stock and surplus that its assets will not satisfy its depositors and other creditors and it becomes necessary to call upon the shareholders to make good the deficiency up to the par value of the shares held by them.
There is nothing in any of the provisions of the Federal statutes relied upon by respondents which denies the right of the shareholder *Page 350 in a national bank to make a valid and enforceable agreement with such bank that money, advanced by him to the bank to take up undesirable paper of the sort exempted from the provisions of Section 5200, shall be repaid. The opinion of respondents shows that there was testimony tending to prove just that sort of an agreement. The jury had the right and duty to pass upon the truth of such testimony.
In affirming the action of the trial court in taking the case from the jury, the opinion of respondents conflicts with opinions of this court, as pointed out in the divisional opinion.
With this modification, the divisional opinion is adopted as the opinion of the Court en Banc.