Collins v. Citizens Bank & Trust Co.

Lamar, J. (After stating the foregoing facts.) Had the loan been an advance of money between an ordinary lender and borrower, the evidence shows that the amount paid by the defendant would have satisfied the principal and interest thereof. But the defendant’s note promised to pay the debt, interest, dues, and premiums under a building and loan contract, the scheme of which was considered in Kirklin against this same Association, 107 Ga. 313, where a contract substantially like the one here involved was held not to be usurious. That question, however, is really not in the case, because the defendant filed no formal plea of usury. Hawkins v. Americus B. & L. A., 96 Ga. 209; Pattison v. Albany B. & L. A., 63 Ga. 377; Tillman v. Morton, 65 Ga. 386. The payments claimed by him were allowed. He objected to the method of proving the charter, and had there been a plea of usury the question might have been important in testing its corporate powers. But he dealt with the association as a corporation, and was estopped from denying its corporate existence. Civil Code, § 1862. The contract, being one within the scheme of a building and loan association proper, was authorized by the general statute of Tennessee under the laws of which the Atlas Association was chartered. This statute was introduced in evidence. We find nothing in that statute, or in any decision from the courts of Tennessee produced to us, requiring anything more than competitive bids for the sale of the money by the association to the members. Indeed we find a recent ruling that a [516] written bid is sufficient under the statute. Hughes v. Farmers’ Ass’n (Tenn.), 46 S. W. 362. The testimony is that the money was cried at open meeting; that the defendant, through another, presented his written bid, which was accepted. The rulings complained of as to the admission of testimony could in no way work a reversal, since such evidence was not essential to plaintiff’s case. It made out a prima facie case on introducing the note. The burden was then cast upon the defendant. This he failed to carry. If the evidence objected to had been excluded, it would have still left this burden on the defendant. The case may be a hard one for him, but it arises from the form of the contract he made, and his agreement to pay a high premium to an association of which he was a member. These premiums in local associations conducted at small expense the member got back in the shape of dividends. And where the scheme is the same, the member is theoretically supposed to get the same dividend on stock held by him in the larger but more expensively conducted associations. The fact that this theory is rarely realized in practice, in and of itself alone, furnishes the courts no authority to relieve against .the hard bargain. Judgment affirmed. All the Justices concur.