Thompson's Ex'r, 19 N. Y. 207 ; or make an assignment for the benefit of creditors; Mer rick v. Trustees of Bank, 8 Gill (Md.) 59; and see Thomp. Corp. chs. 145, 146, which discuss this subject and the validity of pref erential assignments by directors in favor of others and of themselves. They cannot give away corporate property ; Bedford R. Co. v. Bowser, 48 Pa. 29; Frankfort Bank v. John son, 24 Me. 490 ; nor sell the stock at less than par ; Sturges v. Stetson, 1 Biss. 246, Fed. Cas. No. 13,568 ; in money or money's worth ; Chouteau, Harrison & Valle v. Dean, 7 Mo. App. 210 (but see Handley v. Stutz, 139 U. S. 417, 11 Sup. Ct. 530, 35 L. Ed. 227; 2 Thomp. Corp. § 1665; STOCK) ; nor, as a general rule, become surety, accommodation indorser, or guarantor; 3 Thomp. Corp. § 3990; but under urgent necessity their as sumption of a debt of another to secure from the common creditors an extension for themselves has been held justified ; Leach v. Blakely, 34 Vt. 134. See Zabriskie v. R. Co., 23 How. (U. S.) 381, 16 L. Ed. 488.. In the usual course of business they have a gen eral power to borrow money ; Fleckner v. Bank, 8 Wheat. (U. S.) 338, 5 L. Ed. 631; Ridgway v. Bank, 12 S. & R. (Pa.) 256, 14 Am. Dec. 681; and secure it by assigning securities owned by the corporation; North Hudson Mut. Bldg. & Loan Ass'n v. Bank, 79 Wis. 31, 47 N. W. 300, 11 L. R. A. 845 ; and one so dealing with them is not affected with knowledge of a breach of trust by them ; Borland v. Haven, 37 Fed. 394. They may make, accept, or indorse negotiable pa per ; Stevens v. Hill, 29 Me. 133; but a single director is not authorized to make corpo rate notes; Lawrence v. Gebhard, 41 Barb. (N. Y.) 575. They may determine the sala ries of officers of the corporation ; Waite v. Min. Co., 37 Vt. 608. Under the English de cisions the powers of corporations with re spect to borrowing money and making notes are now restricted ; 3 Thomp. Corp. § 3989, n. 3.
While directors are not strictly trustees, yet they occupy a fiduciary position; Jack son v. Ludeling, 21 Wall. (U. S.) 616, 22 L. Ed. 492 ; European & N. A. Ry. Co. v. Poor, 59 Me. 277 ; Hoyle v. R. Co., 54 N. Y. 314, 13 Am. Rep. 595; Koehler v. Iron Co., 2 Black (U. S.) 715, 17 L. Ed. 339; Corbett v. Woodward, 5 Sawy. 403, Fed. Cas. No. 3,223; Deaderick v. Wilson, 8 Baxt. (Tenn.) 108; Scott v. Depeyster, 1 Edw. Ch. (N. Y.) 513 ; Covington & L. R. Co. v. Bowler's Heirs, 9 Bush (Ky.) 468; Hale v. Bridge Co., 8 Kan. 466 ; Black v. Canal Co., 24 N. J. Eq. 463; Sweeny v. Refining Co., 30 W. Va. 443, 4 S. E. 431, 8 Am. St. Rep. 88; Mora w. Priv. Corp. 516; and by some leading authorities they are termed trustees; Walworth, Ch., in Robinson v. Smith, 3 Paige (N. Y.) 222, 24 Am. Dec. 212 ; Hardwicke, Ld. Ch., in 2 Atk. 400; Bent v. Priest, 86 Mo. 475.
Directors, in buying shares from stockholders, when there is a possibility of reselling at a profit, are not bound to dis cover all the facts ; their fiduciary character does not extend that far ; [1902] 2 Ch. 421. But a director upon whose action the value of shares depends cannot avail of the knowl edge of what his own action will be to ac quire shares from those whom he intention ally keeps in ignorance of his expected ac tion and the resulting value of the shares. This rule was applied in view of the special circumstances : That the director owned three-fourths of the stock, was at the time of his purchase administrator general of the company, with large powers, and engaged in negotiations which finally led to a sale of the company's land to the government at a price 'which greatly enhanced the value of the stock ; Strong v. Repide, 213 U. S. 419,
29 Sup. Ct 521, 53 L. Ed. 853, citing Stewart v. Harris, 69 Kan. 498, 77 Pac. 277, 66 L. R. A. 261, 105 Am. St. Rep. 178, 2 Ann. Cas. 873, and Oliver v. Oliver, 118 Ga. 362, 45 S. E. 232, and not deciding as to whether the rule applied to the bare relationship between rector and shareholder.
They are charged with trustees' duties and bound to care for corporation property and manage its affairs in good faith ; and for violation of that duty, resulting in waste of its assets, injury to its property, or unlaw ful gain to themselves, they are liable to ac count in equity the same as ordinary trus tees ; Bosworth v. Allen, 168 N. Y. 157, 61 N. E. 163, 55 L. R. A. 751, 85 Am. St. Rep. 667, where the directors conspired to wreck the corporation. They are held not trustees in the strict and technical sense ; Booth v. Robinson, 55 Md. 419 ; Wallace v. Savings Bank, 89 Tenn. 649, 15 S. W. 448, 24 Am. St. Rep. 625 ; at most directors of a bank can only be considered implied trustees ; Emer son v. Gaither, 103 Md. 564, 64 Atl. 26, 8 L. R. A. (N. S.) 738, 7 Ann. Cas. 1114; Landis v. Saxton, 105 Mo. 486, 16 S. W. 912, 24 Am. St. Rep. 403; Appeal of Spering,• 71 Pa. 11, 10 Am. Rep. 684; the liability of a bank di rector is held to be that of a mandatary or gratuitous bailee, who undertakes without compensation to do something for another, and he is therefore held only to that degree of care which prudent men in like circum stances ordinarily give to the same duties. In Swentzel v. Bank, 147 Pa. 140, 23 Atl. 405, 415, 15 L. R. A. 305, 30 Am. St. Rep. 718, the position of Judge Sharswood in the earlier case is approved and the court said : "The ordinary care of a business man in his own affairs means one thing ; the ordinary care of a gratuitous mandatary is quite another ter. The one implies an oversight and knowledge of every detail of his business ; the other suggests such care only as a man can give in a short space of time to the busi ness of other persons, for which he receives no compensation." The customs and meth ods of a community in which a banking busi ness is done are, for such community, a standard of prudence and diligence by which the responsibility of bank officers and direc tors are to be tested ; Wheeler v. Bank, 75 Fed. 781. The degree of care, skill and judg ment depends upon the subject to which it is to be applied, the particular circumstanc es of the case, and the usages of the busi ness; North Hudson Mut. Bldg. & Loan Ass'n v. Childs, 82 Wis. 460, 52 N. W. 600, 33 Am. St. Rep. 57 ; Killen v. Barnes, 106 Wis. 546, 82 N. W. 536 ; Savings Bank of Louisville's Assignee v. Caperton, 87 Ky. 306, 8 S. W. 885, 12 Am. St. Rep. 488; Warren v. Robison, 19 Utah, 289, 57 Pac. 287, 75 Am. St. Rep. 734. The question of negligence is ultimately a question of fact under all the circumstances; Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct. 924, 35 L. Ed. 662.