Star Loan Ass'n v. Moore

Boyce, J., charging the jury: Gentlemen of the jury:—This action was brought by the plaintiff, the Star Loan Association, a corporation of the State of Delaware, against the defendant, William A. Moore, upon a mortgage dated February 21, 1887, given by the defendant to the plaintiff, conditioned for the payment of the principal sum of one thousand dollars with lawful interest thereon from the tenth day of February, 1887. At the time of the execution of said mortgage the defendant transferred to the plaintiff, as collateral security for the mortgage, five shares of the stock of the tenth series of said association held by him, and also a policy of fire insurance on the mortgaged premises. The plaintiff claims that there is due on the said mortgage as the balance of the principal debt the sum of $180.75, with interest thereon from the first day of October, 1899; and it ascertains that balance as follows: Amount of mortgage debt...........$1000.00 Interest on principal debt from July I, 1898, to Oct. I, 1899............. 75.00 Total amount due $1075.00 [315] Subject to the following credits: Value of each of the said five shares of stock, to wit, $164.11, making...........$820.55 And three cash payments made as follows: January 6, 1899................. 20.00 February 4, 1899............... 20.00 March 25, 1899............... 33.7° Making a total credit of.......... $894.25 Leaving a balance of........... $180.75 The total amount now claimed to be due on said mortgage, debt and interest, is the sum of $219.62. The defendant, on the other hand, claims that he has fully paid the principal debt and interest of said mortgage and that nothing is due from him thereon. That he made a final settlement of the mortgage on the twenty-fifth day of March, 1899, with John F. Miller, then Secretary of the association, at which time he alleges that he paid him the sum of thirty-three dollars and seventy cents, the balance then due on said mortgage. And that at the same time the said Miller surrendered to him the said mortgage and the accompanying bond with receipts in full payment thereof endorsed on each of them and also the policy of fire insurance. He alleges that he paid the said mortgage and accrued interest in the following manner: By surrendering the said five shares of stock, each at the value of $185.84, as was ascertained and determined by the stockholders at an annual meeting held on July 7, 1898, aggregating in value the sum of...........$929.20 And further by the three cash payments inade subsequently to the said meeting, aggregating............ 73.70 It will thus be seen that the contention between the parties is as to the amount which should be credited to the defendant as the value of said five shares of stock. [316] It is conceded that Article 22 of the By-laws, which provides a method by which'the value of the shares of stock of the association may be credited to a debt for which they may be held as collateral, has no application to this case under the evidence adduced. The plaintiff claims that the true value of the stock by which the defendant could make a full and final settlement of his mortgage and interest was not and could not be accurately and definitely ascertained until after the sale of the real estate held by the association, and that the value of said stock was not so ascertained until October 1, 1899, and that then when it was so ascertained it was found to be of the value of $164.11, and not of the value of $185.84, as claimed by the defendant. The defendant justifies his claim of the credit of said stock at $185.84 per share, and the last three cash payments made by him, as in full payment of the mortgage, for the reason that the stockholders of said association at their said annual meeting, held on the said seventh day of July, 1898, for the purpose, as he alleges, of winding up the affairs of said association, ascertained the value of the shares of stock of the tenth series of said association to be the said sum of $185.84, and that for the purpose aforesaid they further ascertained the sums or balance due from the several borrowing members of said association; and in doing so they determined that there was then due on said mortgage of the said debt, after deducting the aforesaid valuation of his said shares of stock therefrom, the sum of seventy dollars and eighty cents. He further alleges that he was notified in writing of the action taken at said annual meeting, and that in pursuance thereof he made a final and full settlement of his mortgage debt and interest by the three cash payments already alluded to, the last having been made on the twenty-fifth day of March, A. D. 1899. The plaintiff claims that whatever may have been the estimate of the value of said stock at the said stockholders’ meeting, held on July 7, 1898, Miller, the secretary, had no authority to adopt such valuation as the amount to be credited on said mortgage and to ac [317] cept the said sum of $70.80, then found to be the balance due on said mortgage, together with interest thereon, in full payment and discharge thereof, and that the action of the stockholders at said annual meeting in estimating the value of the stock and ascertaining the balance due from defendant on said mortgage was not a final determination of the amount actually due upon said mortgage, entitling him to make a final settlement upon that basis and in discharge of said mortgage—but was made for the purpose of suspending the payment of dues until the final disposition of the real estate held by the association, it being contended that the estimated value of the shares of stock thus ascertained, had in part at least been determined by the estimated value then placed upon the real estate of the association, and not by a final disposition thereof. It was competent for the stockholders at the said annual meeting of July 7, 1898, for the purpose of winding up the business or the association, to make a final estimate of the value of the shares of stock of said association and to ascertain the amount to be paid by each borrowing member of the association in discharge of his indebtedness to the association, after deducting therefrom the valuation of the shares of stock so estimated by the stockholders. And if at said meeting a valuation of the shares was made and the balance due from the borrowing stockholders was ascertained and determined, and the defendant, in pursuance of such action of the stockholders, has paid to the association the amount so ascertained to be the balance of his indebtedness to the association, then and in that event such payment would be in full discharge of the mortgage, and he would be entitled to a verdict. If the ascertainment alleged then to have been made was not final so far as it related to the liability of borrowing members, but was, as to them, subject to modification by the subsequent disposition of the said real estate and the collection of the outstanding debts then due the association, then the settlement alleged to have been made by the defendant on the twenty-fifth of March, A. D. 1898, would not discharge the mortgage. [318] The possession by a debtor of the evidence of a debt (such as a bond or mortgage), or a receipt in full payment thereof, is prima fade evidence of payment, if unexplained; but there is no such presumption if the circumstances under which he got possession of the evidence of the indebtedness, or under which he procured a receipt in full payment thereof, are fully disclosed by the evidence. It is conceded that the minutes of July 7, 1898, have been altered since they were first written. The alteration so made was done in such a manner as to leave no doubt, upon an inspection, what the entry was as first written, and likewise what change was intended to be effected in the minutes by the erasures and interlineations. It is for you to determine, under all the evidence, whether the entry as first made, or as changed by the erasures and interlineations, correctly recorded the action of the stockholders at said meeting. Verdict for defendant.