dissenting:
I think the judgment should be affirmed on the authority of Deitrick v. Standard Surety & Casualty Co., 303 U. S. 471, decided March 28, 1938. That case followed and reaffirmed the principle announced in Rankin v. City National Bank, 208 U. S. 541, that where the receiver of a national bank sues to recover on a chose in action which was an asset of the bank, his rights rise no higher than those of the bank, even though the obligation was given to deceive creditors or the bank examiner. The doctrine of the Rankin case has been applied in suits by receivers of national banks for more than thirty years.1
Deitrick v. Standard Surety Casualty Company is on all fours with the present case. There the very argu*202ments and authorities now relied upon and cited on behalf of this petitioner were pressed without avail.
In the earlier case the same receiver brought actions at law to' recover on surety bonds as assets of the bank. The facts were that the bank held worthless notes, known to its president to be such. To give a false appearance of worth to these assets he conspired with the agent of a surety company to procure surety bonds guaranteeing payment of the notes, to be used as “window dressing” and to be shown to the bank examiners if they should ask to see the collateral for the notes. The bank was after-wards examined and, as a result of the examiners’ report, additional capital was subscribed. We may assume they saw the bonds. The bank remained open for a period and deposits continued to be made. Later the Comptroller determined the bank was insolvent and a receiver was appointed.
In his declaration in each action the receiver alleged his appointment, recited the execution and delivery of the surety bond to the bank and attached a copy of it. He alleged that the note or notes in question in each case was or were in default and that the surety was liable according to the terms of its bond. The surety company answered in each case setting up that no consideration was paid for the giving of the bond and that it was agreed and understood that no liability was to ensue from the execution and delivery.2
The District Court entered judgment for the surety company and the Circuit Court of Appeals affirmed.3 That court, after stating that the knowledge of the president was the knowledge of the bank, held that the receiver *203was not an agent of the bank’s creditors; that he stood in no better position than the bank; that all defenses open to the surety company as against the bank were open as against the receiver; that the suit was merely one to recover assets of the bank" and that the declarations stated no cause of action other than that arising from the contract of suretyship. The court called attention to the fact that the pleadings contained no allegation that the receiver based his action on any alleged deception of, or injury to, creditors of the bank and no allegation that the receiver was suing on behalf of creditors, and held that, upon the pleadings, it was not open to the receiver to urge that he represented creditors. It refused-to decide whether, on different pleadings, the receiver could recover if he alleged and proved injury resulting to creditors from the transaction.
This court affirmed the judgment on the grounds stated by the court below, citing and relying on Rankin v. City National Bank, supra.
The surety also pleaded that its agent had exceeded his authority in issuing the bonds, as the bank’s president knew. The Circuit Court of Appeals did not pass upon this defense, since it held the receiver could not recover even if the surety company had authorized the giving of' the bonds. In the opinion of this court, the surety’s contention that it was not bound by its agent’s unauthorized act was mentioned but was not considered or discussed as a ground of decision. The sole basis of the decision is stated as follows:
“An examination of the pleadings makes it quite clear that the Receiver undertook to set up rights acquired by the insolvent bank through duly executed contracts between it and the Surety Company. He makes no suggestion of a purpose attributable to the company to mislead creditors or others; makes no allegations of damage except that sustained by the bank. He sets up no facts *204which would render unconscionable a denial of liability upon the bond because of the agent’s fraud obviously induced by the president of the bank. In this state of the pleadings the Receiver may not have judgment; he cannot rely on something not complained of, nor can he have damages because of supposed deceptions which the pleadings fail to suggest.”
After so stating the court refers to the Rankin case and says: “We adhere to the doctrine there approved and regard it as decisive of the present cause.”
Turning to the instant case, the facts are these: The bank had acquired shares of its own stock illegally. Such shares, so held, were inadmissible assets. The bank’s president, knowing that such acquisition of its own stock was an illegal dissipation of its capital, worked out an ostensible sale of the stock for a note which it was understood was to be placed amongst the assets of the bank for the purpose of deceiving the examiners. The note was without consideration and the understanding was that it would not be collected. It was, of course, unenforceable by the bank. Subsequently deposits were made in the bank. It does not appear that the examiners saw the note. After the Comptroller had-found the bank insolvr ent and appointed a receiver, that officer filed a bill against the maker of the note, first, to collect, an assessment from him as owner of the stock and, second, to recover the face amount of the note, with interest. In this bill he alleged his appointment as receiver, the acquisition of the stock by the bank, and the placing of it in straw names, the giving of the note for the purchase price of the stock; and claimed “the unpaid principal amount of said note . . . together with interest thereon, is due the plaintiff . . His prayers were for a decree for the amount of the assessment and for the principal amount, with interest, of the note.
The answer outlined the true transaction, asserted that the defendant’s note was an accommodation note, that no *205consideration passed for it, and there could, therefore, be no recovery upon it.
The District Court entered a decree for the amount of the assessment and for the principal of the note with interest. The Circuit Court affirmed as to the assessment but reversed the judgment upon the note.
Here, as in the earlier case, there was no allegation that any creditors were deceived; none of any loss to the creditors resulting from the giving of the note; none that the receiver sued on behalf of creditors, and no cause of action asserted save one to recover upon the note as an asset of the bank. Here, as in the earlier case, the receiver has urged upon this court that he does represent creditors; that the public policy evidenced by the National Bank Act disables the defendant, in view of the intended deception, from asserting the lack of consideration for the note. Here, in contrast to the earlier case, the court accepts the view which was there rejected because not within the issues tendered.
In Deitrick v. Standard Surety & Casualty Co., supra, the receiver urged upon this court the very contentions which he again advanced in the instant case; cited in support of those contentions numerous authorities which he now cites, which are relied upon in the opinion now an.nounced; sought to have this court adopt the proposition, now affirmed by the opinion in the present case, that the defendant was liable on the surety bond because of the public policy evidenced in the National Bank Act which, broadly speaking, estopped the surety to set up, as against the receiver, appointed pursuant to the national banking law, a wrong against that law in which it had participated.4 His contentions were held to be unavailing in view of the cause of action he had pleaded.
*206In view of what has boon said, it is apparent that, under the guise of distinguishing the earlier case, the court in fact overrules it.
Mr. Justice McReynolds joins in this opinion.Peterson v. Tillinghast, 192 F. 287, 289; Skud v. Tillinghast, 195 F. 1, 5; Cutler v. Fry, 240 F. 238; Yates Center National Bank v. Schaede, 240 F. 240; Keyes v. First National Bank, 20 F. 2d 678, 686; Hookway v. First National Bank, 36 F. 2d 166, 170; Kaercher v. Citizens’ National Bank, 57 F. 2d 58; Varden v. First Christian Church, 13 F. Supp. 159, 161; Drake v. Moore, 14 F. Supp. 89, 90; Seaborn v. Reno National Bank, 20 F. Supp. 835, 838; Federal Deposit Ins. Corp. v. Pendleton, 29 F. Supp. 779, 781.
The surety company also filed bills seeking cancellation of each of the bonds and, iñ his answers, the receiver reiterated his averment that the surety company owéd him the amounts stipulated in the bonds, and asked judgment for such amounts.
90 F. 2d 862.
Out of sixty-eight pages of argument in petitioner’s brief thirty-nine were devoted to this contention; and every proposition. now relied upon to sustain the conclusion of the court was advanced in that brief.