This matter came before me on a motion by the defendants to dismiss the complaint filed herein on the ground that it fails to state a claim upon which relief can be granted.
The complaint alleges that plaintiffs were common stockholders of the West Bergen Trust Company who exchanged their stock for common stock of The Trust Company of New Jersey upon the merger of the two corporations in accordance with an agreement of merger dated March 10, 1939; that to effect such merger it was represented to the plaintiffs and other stockholders of West Bergen Trust Company that it was necessary to request the defendant, Federal Deposit Insurance Corporation, to either purchase certain assets deemed
unacceptable for the acquisition or retention by the merged banks, or to loan an amount not in excess of $1,000,000 to West Bergen Trust Company; that authorization to negotiate with defendant, Federal Deposit Insurance Corporation, was granted the officers of West Bergen Trust Company at a special directors meeting on March 10, 1939; that pursuant to such authority, a loan of $1,000,000 was made to West Bergen Trust Company by the Federal Deposit Insurance Corporation secured by collateral having a book value of $1,492,344.34, being composed of such securities as were considered unacceptable for acquisition by the merged bank; that the proceeds of the loan, upon merger, were transferred to The Trust Company of New Jersey; that the defendant, Federal Deposit Insurance Corporation, has liquidated said loan by disposal of the aforesaid collateral and has a surplus of over $100,000 remaining above the amount of the loan; that no allowance or payment was made to plaintiffs or other common stockholders of West Bergen Trust Company for the value of the collateral pledged with the Federal Deposit Insurance Corporation over and above the amount of the loan; that such surplus is the property of the plaintiffs and other stockholders of the West Bergen Trust Company as the lawful owners thereof at the time of the loan; and that The Trust Company of New Jersey, having given no consideration therefor, is not entitled to claim the same as against the plaintiffs.
It is my opinion that the motion should be granted.
The application for the loan from the Federal Deposit Insurance Corporation states:
"When the entire indebtedness of the Bank to the Corporation has been paid in full, the collateral, if any, remaining in the hands of the Corporation shall be delivered to The Trust Company of New Jersey, as constituted after the merger, and thereafter the Corporation shall be forever discharged and released from any liability to the Bank or its successors arising out of the loan transaction."
Said application expressly makes itself and the note contemplated to be made by the West Bergen Trust Company "a contract between Bank and the Corporation," and then recites:
"Said contract shall inure to the benefit of the successors and assigns of the Corporation and shall be binding upon but shall not inure to the benefit of the successors or assigns of Bank, except The Trust Company of New Jersey, as constituted after the merger, without the written consent of the Corporation."
The loan itself was made in return for a demand note dated April 20, 1939, in the sum of ...