Louchheim v. Somerset Building & Loan Ass'n

Opinion by Rice, P. J., This action of assumpsit was brought by a stockholder in a building and loan association to recover the withdrawal value of nine shares of stock. The principal question in the case is as to the amount to which the plaintiff is entitled to credit for payments on his stock, and this depends upon the validity of certain payments of dues which were made to the secretary of the association, as he each month called for them at the place of business of plaintiff’s father and trustee, for which the secretary receipted in the plaintiff’s pass or deposit book, but fraudulently neglected to pay to the association. The by-laws -relative to the subject provide that a member, “ for each share of stock owned or held by him shall pay the sum of $1.00 a month at the stated monthly meetings of the board of directors,” that “ the board of directors shall hold a stated meeting .... on the third Monday of each month for the purpose of receiving the monthly dues, interest and fines from the stockholders,”'and that at “the regular meeting of the board of directors in March and September the president shall appoint three directors as a financial committee to serve the ensuing six months ; who shall receive the monthly payment of dues, interest and fines at the monthly meetings, pay the same to the treasurer and take his receipt for the same.” The by-law prescribing the power, authority and duties of the secretary contains nothing which expressly or impliedly authorizes him to collect dues from members ; nor has any by-law been called to our attention which can be construed as empowering the board of directors to give him such authority; nor does the evidence disclose any formal action of the board of directors having that object in view. The by-laws of a corporation, upon their adoption, become written into the charter, and all persons, whether strangers or members, who deal with the corporation are bound to take notice of the powers and duties, as defined in the by-laws, of those officers of the corporation with whom they deal: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157 ; Wayne Title & Trust Co. v. — 332 — Schuylkill Electric Ry. Co., 191 Pa. 90; Worthington v. Schuylkill Electric Ry. Co., 195 Pa. 211; 10 Pa. Superior Ct. 117. There is obviously a stronger reason for applying this rule where a party dealing with a corporation is a member, and, as was the case here, has in his actual possession a copy of the by-laws. Prima facie, therefore, the defendant association was not chargeable with the payments in question, not merely because they were not made at the stated meetings of the board of directors, but because they were not made to the persons appointed under the by-laws to receive them. This distinguishes the case from Schutte v. California Building & Loan Association, 146 Pa. 324, and Louchheim v. Richmond Mutual Building & Loan Association, 16 Pa. Superior Ct. 33, and makes these decisions inapplicable. The learned referee in an able and lucid report held the association to be liable for these payments upon another ground. He says: “ Since it was in the power of the board to have authorized collection of dues differing from that provided under the by-laws, it being purely a matter of company control and management, it was in its power to ratify and sanction such collection and this it did.” We are not prepared to give assent to the legal proposition involved in the foregoing statement, namely, that notwithstanding the by-laws prescribed that payments shall be made to the financial committee to be appointed by the president, and notwithstanding such committee was appointed and attended at the time and place prescribed by the by-laws, it was nevertheless within the power of the board of directors to authorize the secretary or any other officer to go about among the members and collect their dues. But it seems unnecessary to enter into an extended discussion of that question, because the evidence, as we view it, does not show that the board of directors attempted to exercise such power, nor that there was any conduct on their part which may be regarded as an acquiescence in or a ratification of any unauthorized action of the secretary. It appears that the plaintiff through his father as trustee had been a subscriber to a former series of stock, the fifth; that, during a period of ten years all payments of dues upon that stock were received by the secretary at the place of business of the trustee, which was disconnected from, and in a different part of the city from, the — 333 — meeting place of the association ; that the money thus received by the secretary was paid by him to the financial committee and by them turned over to the treasurer; that the board of directors knew that the payments were made in this way, and with this knowledge, by resolution declared the fifth series of stock matured and pursuant thereto paid to the plaintiff’s trustee the full value of his shares as matured stock. This was about a month before the date of the first payment to the secretary upon the stock now in question. This course of dealing with reference to the stock of the fifth series is relied on as proof that a different mode of payment from that prescribed by the by-laws had been set up by the board of directors, and as a justification of the plaintiff’s belief that payments to the secretary would be duly credited to him by the associa- ■ tion, as they had been in the former series. But it is to be observed that the by-laws did not require members to appear in person at the monthly meetings, and the referee reports that it was customary for them to send their dues to the meetings by members of their families, by other stockholders and sometimes by officers of the association. The reception of dues from such intermediary, even though an officer, established no course of dealing which was in anyway inconsistent with the provisions of the by-laws, and therefore, would not warrant a member in supposing that in future series his full duty would be discharged by paying them • to the same officer. Judge Beitler well says: “ There was no reason why the association should object to Houseman being the bearer of the moneys any more than if Mr. Louchheim had sent his coachman or a messenger boy with the money. There was no requirement in the by-laws that the money must be paid by the member nor any that the pass book or receipt book must be produced by the member or his messenger. „ If the member chose to pay without getting a receipt it was no concern of the association. We fail to see, then, how the fact that the association declared Mr. Louchheim’s shares, of which it had actually received through channels named in its by-laws every cent due, matured, committed it at all to a recognition of the secretary as its agent. Had the moneys been brought to the meetings every night by someone unconnected with the association, or by someone who was a member, the fact that the association repaid on maturity — 334 — to Mr. Louchheim would not have constituted the messenger, in one ease a stranger to the association, in the other a member, the association’s agent .... In reality the association paid because it had received the dues every month from Mr. Louchheim. It could not have escaped paying.” He further elaborates this idea in such manner as to render it unnecessary to pursue the discussion further. An elaborate argument is made to show that the defendant is estopped to prove the true state of the account between it and the defendant by the negligent failure of several auditing committees to discover the falsifications which the secretary had made in the roll book to cover up his fraud. Upon this subject we remark that there is no distinct finding of the referee that these audits were negligently conducted; nor is it clear to us that such finding was required by the evidence. • The truth seems to be that the secretary fraudulently kept the roll book in such manner as to deceive the directors and officers, but just how this can be made to operate in the plaintiff’s favor and enable him to recover dues from the association which the association did not receive has not been made clear. If be had read the by-laws which were actually before his eyes every time he took a receipt for his monthly dues, he would have seen that the secretary whom he was trusting was not the authorized agent of the association in that matter. The primary cause of the loss was his own misplaced confidence in the person to whom he intrusted his dues, and it is impossible to see how the fact that this person added to the crime of embezzling the plaintiff’s money the fraudulent manipulation of the association’s accounts in such a way as to deceive its officers can be given as a valid reason for allowing him to throw off from himself on to the defendant the loss which has resulted from the dishonesty of his own agent. Upon the question of the conclusiveness of the account as kept by the secretary we call attention to our decision in Folsom Building and Loan Association v. Gogel, No. 228, October term, 1902 (24 Pa. Superior Ct. 539), rendered since this case was argued, in which Judge Beaver, says: “The dues and fines are payable under the by-laws and, whether entered in the hooks or not, are due and payable by the defaulting member. It is no contradiction, therefore, of the books to show that dues and fines — 335 — other than those entered thereon were due from the defendant.” One of the by-laws of the association reads as follows: “If any member is in arrears in his payments for six months, and also has not a loan from the association, the board of directors may declare his stock forfeited; and he shall thereupon be entitled to receive all moneys paid in by him on said stock, less fines and his proportion of losses.” It is argued that the fines referred to in the latter clause of this section are such fines as are chargeable for six months’ arrears and no more, and the clause entitling the non-borrowing stockholder to receive all moneys paid in by him on his stock less fines and his proportion of losses confers a right upon him of which the board of directors cannot deprive him by failure to forfeit his stock. We cannot give our consent to this construction of the by-law. The member is bound to know whether he is in arrear, and has no standing to complain that the directors did not forfeit his stock at the expiration of the six months for which he was in arrears or notify him of that which it was his duty to know. As to the reasonableness of the imposition of a fine of two per cent a month on arrearages, where the member is a non-borrower, it seems sufficient to say that it is not in excess of the amount authorized by the act of 18T9 and the by-laws of the association. The first entry in the financial committee’s book and the first payment made to the financial committee upon the shares of stock in question was on April 16, 1894. This was $9.50, of which, as shown by the amount, $9.00 were for dues and fifty cents for entry fee. No certificate of stock was issued to the plaintiff for these shares. This payment, in our opinion, determined the series in which the plaintiff’s stock belonged. As originally opened and kept for nearly a year the secretary’s account showed that it belonged to the series, the thirty-fifth, then being issued by the association, and the fact that subsequently the secretary for his own fraudulent purposes transferred the account to the twenty-ninth series cannot affect the question. After all the case turns upon the question whether the secretary in receiving from the plaintiff his monthly dues and carrying them to the monthly meetings of the association was the agent of the plaintiff or the agent of the defendant. Having — 336 — determined that under the facts of the case he must be deemed to have been the former, the familiar principle is applicable that “ where one of two parties, who are equally innocent of actual fraud, must lose, it is the suggestion of common sense, as well as equity, that the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall not throw it on the other: ” Pennsylvania Railroad Co.’s Appeal, 86 Pa. 80. The case cited furnishes an illustration of the application of this principle which is pertinent here. Judgment affirmed.