International Building & Loan Ass'n v. Radebaugh

Monks, J. — Appellant, a building and loan association organized under the laws of this State, sued appellees upon a contract for the payment of money, and to foreclose a mortgage on real estate given to secure said contract. A trial of said cause resulted in a judgment in favor of appellees. The contract and mortgage were executed May 28, 1891, to secure a loan of $3,000 to a shareholder of appellant. Thirty shares of stock in appellant association were also assigned to appellant as collateral security for said loan. At the time the loan was made by appellant, the statute, §6, Acts 1885, p. 83, required the loans to be made to the members of the association in open meeting; the premium to be paid at one time or in instalments. In this case there was no bidding, but the loan was made, and the contract provided for the payment of a premium of five per cent, per annum on $3,000, payable monthly. The borrower, however, received only $2,700 ; $300 being deducted and retained by appellant as a gross premium. Appellant could only require a premium in gross, or in instalments. It had no power to require both. It is insisted, however, by appellant, that section nine of the act of 1897 (Acts 1897, p. 287, §M63i Burns 1901) legalizes contracts for the payment of premiums without bidding. It was so decided by this court in International, etc., Assn. v. Wall, 153 Ind. 551; but said section does not profess to legalize the taking of two premiums, — the one in gross, and the five per cent, per annum premium payable monthly. This action was commenced January 19, 1899. The monthly dues on stock were paid for six years and eight months. The premium and interest were paid for six years and seven months. This, appellees insist, paid the loan under the terms of the contract. Appellant insists that [551] notwithstanding its promise in the certificate of stock to pay $100 for each share of stock at the end of six and one-half years, the other provisions therein, when construed therewith, show that the same does not mature until after the dues paid and the profits apportioned to each share of stock amount to $100,— its face value, — although more than six and one-half years from the date thereof. It is not necessary to decide, and we do not decide, which of said theories is the correct one, for the reason that, even if appellant’s theory is correct, the' judgment rendered is not shown by the record to be erroneous. The certificate of stock provided that appellant would pay $100 for each o'f said thirty shares at the end of six and one-half years from May 1, 1891, the date of said certificate. Said certificate also provided that “at stated periods the profits arising from interest, premiums, fines,' and other sources shall be apportioned among the shares in good standing, and whenever the monthly payments made on shares, together with the profits apportioned to such share, shall amount to $100, such share shall be deemed to have been matured and no more monthly payments shall be required. No share of stock of this association shall be deemed to have matured until the sum of all payments thereon, together with the profits apportioned to said share, shall amount to the full sum of $100.” There was evidence given at the trial that dues had been paid on said thirty shares of stock for eighty months, amounting to $1,800, and that profits amounting to $1,-039.06 had been apportioned to said stock as provided in the certificate of stock. The amount of monthly payments of interest and premium for said seventy-nine months was $1,975, while the amount of premium and interest on $2,700,' — the amount received by the borrower, — was only $1,775.50, showing an overpayment of said interest and premium of $199.50. Add said sum of $199.50 and the $300 gross premium retained by appellant to the dues [552] paid and dividends declared, as above stated, and we have ’$3,338.56, which is $338.56 more than the amount required to mature said stock. Under such evidence this court can not say that the finding was contrary to law, or not sustained by sufficient evidence. Judgment affirmed.