D'Oench, Duhme & Co. v. Federal Deposit Insurance
D'Oench, Duhme & Co. v. Federal Deposit Insurance
Opinion of the Court
delivered the opinion of the Court.
Respondent instituted this suit in the United States District Court for the Eastern Division of the Eastern
We held in the latter decision that a failure of a federal court in a diversity of citizenship case to follow the forum’s conflict of laws rules “would do violence to the principle of uniformity within a state” upon which Erie R. Co. v. Tompkins, 304 U. S. 64, was based. 313 U. S. at p. 496. The jurisdiction of the District Court in this case, however, is not based on diversity of citizenship'. Respondent, a federal corporation, brings this suit under an Act of Congress authorizing it to sue or be sued “in any court of law or equity, State or Federal.”
Petitioner in its answer alleged that the note was given without any consideration whatever and with the understanding that no suit would be brought thereon; and that respondent was not a holder in due course. Respondent in its reply alleged that petitioner was estopped to assert those defenses on the grounds that the note was executed for the purpose of permitting the bank to avoid having its records show any past due bonds; that this constituted a misrepresentation which would deceive the creditors of the bank, the state banking authorities and respondent; that petitioner participated in the misrepresentation not only by reason of its knowledge as1 to the purpose which the note would serve but also by reason of its payment of interest in order to make the notes appear as a good asset. The District Court held that respondent was an innocent holder of the note in good faith and for value and that petitioner was estopped to assert want of consideration as a defense.
Sec. 12 B (s) of the Federal Reserve Act, 12 U. S. C. § 264 (s), provides that “Whoever, for the purpose of obtaining any loan from the Corporation ... or for the purpose of influencing in any way the action of the Corporation under this section, makes any statement, know
These provisions reveal a federal policy to protect respondent, and the public funds which it administers, against misrepresentations as to the securities or other assets in the portfolios of the banks which respondent insures or to which it makes loans. If petitioner and the bank had arranged to use the note for the express purpose of deceiving respondent on insurance of the bank, or on the making of the loan, the case would be on all fours with Deitrick v. Greaney, supra. In that case, the defendant, for the purpose of concealing a national bank’s acquisition of its own stock, had the shares held by a straw man and executed a note to the bank, it being agreed that the shares were to be held for the bank and that he was not to be liable on the note. We held as a
Furthermore, the fact that creditors may not have been deceived or specifically injured is irrelevant. As we held in the Deitrick case (309 U. S. p. 198), it is the “evil tendency” of the acts to contravene the policy governing banking transactions which lies at the root of the rule. See 7 Zollman, Banks & Banking (1936) § 4783.
Those principles are applicable here, because of the federal policy evidenced in this Act to protect respondent, a federal corporation, from misrepresentations made to induce or influence the action of respondent, including misstatements as to the genuineness or integrity of securities in the portfolios of banks which it insures or to which it makes loans. Those principles call for an affirmance of the judgment below.
Petitioner, at the time it executed the renewal note in 1933, did not know that it was to be used to deceive respondent, as the Act creating respondent was not passed until later. But the permission which it gave the bank to carry the note as a real asset was a continuing one and not revoked. That permission must be presumed to have
Respondent insured the bank in 1934. The loan was made in 1938 to satisfy respondent’s liability to the depositors of the bank under that insurance agreement. Respondent was authorized to insure such a bank only on a certificate from the state authority that the bank was solvent. We assume that such certificate was given, for to assume otherwise would be to infer that respondent did not discharge its statutory duties. The genuineness of assets ostensibly held by a bank is certainly germane to a determination of solvency. Clearly respondent is a member of the creditor class which the banking authorities were intended to protect. Plainly one who gives such a note to a bank with a secret agreement that it will not be enforced must be presumed to know that it will conceal the truth from the vigilant eyes of the bank examiners. If the bank had wilfully padded the bank’s assets with the spurious note in order to obtain insurance from respondent, there seems no doubt but that § 12 B (s) would have been violated. Moreover, as we have seen, the inability of an accommodation maker to plead the defense of no consideration does not depend on his commission of a penal offense. The test is whether the note was designed to deceive the creditors or the public authority, or would tend to have that effect. It would be sufficient in this type of case that the maker lent himself to a scheme or arrangement whereby the banking authority on which respondent relied in insuring the bank was or was likely to be misled. As we have said, petitioner’s authority to the bank to use this note was a continuing one.' The use to which it was put was not unusual but within the normal scope of banking activities. The fact that the note was charged off by the bank subsequent to the time when respondent insured
Though petitioner was not a participant in this particular transaction and, so far as appears, was ignorant of it, nevertheless it was responsible for the creation of the false status of the note in the hands of the bank. It therefore cannot be heard to assert that the federal policy to protect respondent against such fraudulent practices should not bar its defense to the note. Criminal penalties are m> more the sole sanctions of the federal policy expressed in this Act than were the criminal penalties imposed on the agreement in the Deitrick case. If the secret agreement were allowed as a defense in this case the maker of the note would be enabled to defeat the purpose of the statute by taking advantage of an undisclosed and fraudulent arrangement which the statute condemns and which the maker of the note made possible. The federal policy under this Act of protecting respondent in its various functions against such arrangements is
Affirmed.
The bank sold some of the bonds in 1937 for $100 and credited this amount to interest due on the note. This credit paid interest to May 1, 1933. No later payments were made on the note.
That subdivision of the Act further provides: “All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States: Provided, That any such suit to which the Corporation is a party in its capacity as receiver of a State bank and which involves only the
These provisions of subdivision (y) were dropped when § 12 B was amended by the Banking Act of 1935. 49 Stat. 684. See S. Rep. No. 1007, 74th Cong., 1st Sess., p. 9.
Subdivision (y) also gave respondent power to prescribe rules and regulations for the further examination of such bank. Though subdivision (y) was revised in 1935, as indicated in note 3, supra, subdivision (k) (2) of the amended Act gave respondent’s examiners power “to make a thorough examination of all the affairs” of such banks and in doing so “to administer oaths and to examine and take and preserve the testimony of any of the officers and agents thereof.” They were directed to make a “full and detailed report of the condition of the bank to the Corporation.” 12 U. S. C. § 264 (k) (2).
Concurring Opinion
The Chief Justice and I concur in the result on the ground that in the circumstances of this case respondent is entitled to recover, whatever law be deemed controlling. If Illinois law governs, respondent is admittedly entitled to recover as a holder in due course. If Missouri law governs, petitioner is estopped to assert the defenses on which it now relies. Whether the case is governed by the law of one State or the other, or by “federal common law:” drawn here from one State or the other, the result is the same.
When the original accommodation notes were executed in 1926, petitioner fully knew that the whole transaction was aimed at giving the bank an appearance of assets where there were none. Petitioner’s representative admitted that the bank “suggested that we issue a note to the Bank,” which would enable it “to carry this note and not show any past due paper.” He had been in the investment security business since 1910; he “knew what the bank meant,” and that it was subject to periodic examinations by the state bank examiner, and he assumed the bank did not want past due paper. On these facts the trial judge held that petitioner is estopped to assert absence of consideration as a defense.
Nothing in Missouri statutes or decisions brought to our notice would warrant us in setting aside this ruling. A case decided in 1901, Chicago Title & Trust Co. v.
“The facts in this case inevitably suggest the question [of estoppel] we have discussed in this paragraph. Counsel for respondent, however, have not raised it — being deterred, doubtless, by the decision in Title & Trust Co. v. Brady, 165 Mo. 197, where a contrary doctrine is countenanced — and we therefore refrain from ruling upon the proposition. We have touched upon it, for the reason that if the Brady case, supra, is considered as announcing The Missouri rule’ upon this topic, as some commentators have said, that rule is apparently in conflict with numerous and respectable authorities, and its soundness may admit of question.”
No subsequent decision was cited, nor have we found any, to show that the court has since reverted to the doctrine of the Brady case. It cannot be said, therefore, that in holding petitioner estopped the trial judge departed from Missouri law.
There is no federal statute to override either the Missouri law as to estoppel or the Illinois law which treats respondent as a holder in due course. Were this Court, in the absence of federal legislation, to make its own choice of law, compare United States v. Guaranty Trust Co., 293 U. S. 340; O’Brien v. Western Union Telegraph Co., 113 F. 2d 539; and Hinderlider v. La Plata Co., 304
We are unable to find an estoppel created by federal statute. Reliance is placed upon Deitrick v. Greaney, 309 U. S. 190. But that case rested on a plain violation of an explicit provision of a federal statute in force at the time of its occurrence. This is not true here. An accommodation note deposited in a bank before an Act of Congress is on the books can hardly become a violation of the Act after it is passed merely because the note remains in the bank. One cannot violate a statute before it comes into being. Insofar as the statute may apply to arrangements whereby the Federal Deposit Insurance Corporation might have been misled to its detriment into insuring an insolvent bank, the record is barren of any indication that the $5,000 note in question had any relation to the bank’s solvency or to the Corporation’s undertaking as an insurer.
The Federal Deposit Insurance Corporation is bringing this suit as pledgee. As to the note sued upon, it is in no different position than would be any other pledgee. Indeed, from the business point of view, its position is less favorable. For it became pledgee only in 1938, three years after the note had been charged off on the books of the bank. The Corporation had since 1934 been making a regular annual examination of the bank’s books, which showed this fact; and the schedule of collateral given to respondent when it became pledgee made it perfectly clear that the note had been charged off.
We are not concerned here with liability based on any doctrine of “equitable estoppel” evolved as a principle of
Of course the policy expressed by the Federal Deposit Insurance Act might be violated, as the National Bank Act was violated in the Deitrick case, wholly apart from any question of estoppel or proof of loss to the Corporation. Our difficulty is that the statute cannot be stretched to fit this case. And it seems unnecessary to force such a result when a solution according to settled doctrines is available.
Concurring Opinion
concurring:
I think we should attempt a more explicit answer to the question whether federal or state law governs our decision in this sort of case than is found either in the opinion of the Court or in the concurring opinion of Mr. Justice Frankfurter. That question, as old as the federal judiciary, is met inescapably at the threshold of this case. It is the one which moved us to grant certiorari, and we could not resort to the rule announced without at least a tacit answer to it. The petitioner asserts that the decisions in Erie R. Co. v. Tompkins, 304 U. S. 64, and Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, govern this case. If they do, we would not be free to disregard the law of Missouri and Illinois and to apply a doctrine of estoppel actually — but not avowedly — drawn from common-law sources to effectuate the policy we think implicit in federal statutes.
. The Rules of Decision Act
This case is not entertained by the federal courts because of diversity of citizenship. It is here because a federal agency brings the action, and the law of its being provides, with exceptions not important here, that: “All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States: . . .”
Although by Congressional command this case is to be deemed one arising under the laws of the United States, no federal statute purports to define the Corporation’s rights as a holder of the note in suit or the liability of the maker thereof. There arises, therefore, the question whether in deciding the case we are bound to apply the law of some particular state or whether, to put it bluntly, we may make our own law from materials found in common-law sources.
This issue has a long historical background of legal and political controversy as to the place of the common law in federal jurisprudence.
I do not understand Justice Brandeis’s statement in Erie R. Co. v. Tompkins, 304 U. S. 64 at 78, that “There is no federal general common law,” to deny that the common law may in proper cases be an aid to, or the basis of, de
Were we bereft of the common law, our federal system would be impotent. This follows from the recognized futility of attempting all-complete statutory codes, and is apparent from the terms of the Constitution itself.
The contract clause, which prohibits a state from passing any “Law impairing the Obligation of Contracts,” is an example of the part the common law must play in our system. This provision is meaningless unless we know what a contract is. The Constitution wisely refrains from saying. We have very recently held, upon a long line of authority, that in applying this clause we are not bound by the state’s views as to whether there is a contract. Irving Trust Co. v. Day, 314 U. S. 556. Take the case where the question is whether a promise made without consideration comes within the protection of the contract clause. Is there any doubt as to where we must go for the answer that we do not find in the Constitution itself? This Court has not hesitated to read the eom
Other recognitions of our common-law powers abound in the Constitution.
A federal court sitting in a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state. Federal law
The law which we apply to this case consists of principles of established credit in jurisprudence, selected by us because they are appropriate to effectuate the policy of the governing Act. The Corporation was created and financed in part by the United States
I concur in the Court’s holding because I think that the defense asserted is nowhere admissible against the Corporation and that we need not go to the law of any particular state as our authority for so holding.
I hardly suppose that Congress intended to set us com
§ 34 of the Judiciary Act of 1789, 28 U. S. C. § 725.
“However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true, that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different states.” Chief Justice Marshall in Bank of the United States v. Deveaux, 5 Cranch 61, 87. See also, Dodge v. Woolsey, 18 How. 331, 354; Burgess v. Seligman, 107 U. S. 20, 34; Lankford v. Platte Iron Works, 235 U. S. 461, 478. But compare Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harvard Law Review 483.
Its effect even in such cases seems not to have been definitely settled. In an equity case it was said that “the doctrine applies though the question of construction arises not in an action at law, but in a suit in equity.” Ruhlin v. New York Life Ins. Co., 304 U. S. 202, 205. That case was in the federal courts by reason of diversity jurisdiction. In a later case in which a suit in equity was brought in federal court to enforce liability under a federal statute the Court said: “The Rules of Decision Act does not apply to suits in equity. Section 34 of the Judiciary Act of 1789, 28 U. S. C. 725, directing that the ‘laws of the several states’ ‘shall be regarded as rules of decision’ in the courts of the United States, applies only to the rules of decision in ‘trials at common law’ in such courts, but applies as well to rules established by judicial decision in the states as those established by statute. ... In the circumstances we have no occasion to consider the extent to which federal courts, in the exercise of the authority conferred upon them by Congress to administer equitable remedies, are bound to follow state statutes and decisions affecting those remedies.” Russell v. Todd, 309 U. S. 280, 287, 294. In any event, the estoppel here involved seems no more an equity matter than the issue of good-faith purchase involved in Cities Service Oil Co. v. Dunlap, 308 U. S. 208, where state law was held to govern.
Paragraph Fourth of 12 U. S. C. § 264 (j) empowers the Corporation “To sue and be sued, complain and defend, in any court of law or equity, State or Federal. All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States: Provided, That any such suit to which the Corporation is a party in its capacity as receiver
In a number of respects and with varying degrees of explicitness the Act elsewhere makes reference to state law. Specific federal criminal sanctions are provided.
A similar provision without more is found in many federal statutes. E. g., 15 U. S. C. § 604 (Reconstruction Finance Corporation); 12 U. S. C. § 24 (National Banks); 12 U. S. C. § 341 (Federal Reserve Banks) ; 12 U. S. C. § 1432 (Federal Home Loan Banks); 12 U. S. C. § 1716 (c) (3) (National Mortgage Associations). This is not to suggest, however, that questions not specifically dealt with in these statutes cannot be federal questions simply because of the absence of an express provision that suits “shall be deemed to arise under the laws of the United States.”
Judicial opinions discussing various aspects of the question include: Wheaton v. Peters, 8 Pet. 591, 658 (1834); Kendall v. United States, 12 Pet. 524, 621 (1838); Smith v. Alabama, 124 U. S. 465, 478 (1888); Bucher v. Cheshire R. Co., 125 U. S. 555, 583-584 (1888); Justice Field, dissenting in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 394-395; Justices Holmes and Pitney, dissenting in Southern Pacific Co. v. Jensen,
The research of Charles Warren, leaned on heavily in Erie R. Co. v. Tompkins to discredit Swift v. Tyson, led that scholar to conclude that United States v. Hudson, 7 Cranch 32, and United States v. Coolidge, 1 Wheat. 415, establishing the above proposition, were probably wrongly decided. Warren, History of the Federal Judiciary Act of 1789, 37 Harvard Law Review 49, 73. The error, if it be one, comports, however, with the present tendency to constrict the jurisdiction of federal courts, and I think is likely to survive.
Similarly, Mr. Justice Holmes's statement that there is no “transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute” was made with reference to “matters that are not governed by any law of the United States or by any statute of the State.” See Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, 533.
Thus, the Judiciary Article provides that “the Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties” made under their authority. It does not give any definition of what are cases in law and equity; it simply assumes the existence of a jurisprudence from Which the courts can ascertain the meaning of those terms.
Particularly in the clauses dealing with the rights of the individual, the Constitution uses words and phrases borrowed from the common law, meaningless without that background, and obviously meant to carry their common-law implications. Thus, we find, in it the following: “convicted”; “Indictment”; “Treason, Felony, and Breach of the Peace”; “Piracies and Felonies”; “Privilege of the Writ of habeas Corpus”; “Bill of Attainder or ex post facto Law”; “Bribery”; “original Jurisdiction”; and “appellate Jurisdiction both as to Law and Fact.” In the Bill of Rights Amendments, the necessity for resort to the common law for constitutional interpretation is even more obvious. Here we find: “unreasonable searches and seizures”; “Warrants”; “presentment or indictment of a Grand Jury”; “due process of law”; “right to a speedy and public trial by an impartial jury”; “in Suits at common law”; and “no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”
For example, the common-law doctrines of conflict of laws worked out in a unitary system to deal with conflicts between domestic and truly foreign law may not apply unmodified in conflicts between the laws of states within our federal system which are affected by the full faith and credit or other relevant clause of the Constitution.
12 U. S. C. § 264 (d).
12 U. S. C. § 264 (i), (k), (l).
Compare Central Vermont Ry. Co. v. White, 238 U. S. 507; Southern Express Co. v. Byers, 240 U. S. 612; Chesapeake & Ohio Ry. Co. v. Kelley, 241 U. S. 485; Western Union Telegraph Co. v. Boegli, 251 U. S. 315; Western Union Telegraph Co. v. Esteve Bros. & Co., 256 U. S. 566; Western Union Telegraph Co. v. Priester, 276 U. S. 252; Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U. S. 44; Local Loan Co. v. Hunt, 292 U. S. 234; Jenkins v. Kurn, 313 U. S. 256; Royal Indemnity Co. v. United States, 313 U. S. 289; O’Brien v. Western Union Telegraph Co., 113 F. 2d 539.
Campbell v. Haverhill, 155 U. S. 610; McClame v. Rankin, 197 U. S. 154; Chattanooga Foundry v. Atlanta, 203 U. S. 390; O’Sullivan v. Felix, 233 U. S. 318; Seaboard Air Line Ry. Co. v. United States, 261 U. S. 299; Brown v. United States, 263 U. S. 78; United States v. Guaranty Trust Co., 293 U. S. 340; Board of Commissioners v. United States, 308 U. S. 343; Rawlings v. Ray, 312 U. S. 96; Just v. Chambers, 312 U. S. 383.
The reasons given by the opinion of Mr. Justice Frankfurter for declining to apply the doctrine of equitable estoppel seem inadequate. To insist that the 15,000 note in question does not appear from the record to have had “any relation to the bank’s insolvency or the Corporation’s undertaking as insurer” is to part company with the realities of the period in question, when small banks — and large ones as well— were operating on perilously narrow margins of solvency, if any. To hold that the Corporation is to be judged as a mere private pledgee of a particular piece of paper is to ignore the comprehensive public character of its function. And the wrong to it was sustained when it be
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