Western Loan & Savings Co. v. Desky

BARTCH, J., after stating the case as above, delivered the opinion of the court. The appellant insists that the court erred in permitting the defendant to go behind the settlement of June 28, 1898, and admitting evidence of transactions prior thereto. This point refers to the indorsement by the respondent on the certificate issued to him by the National Building and Loan Association, representing fourteen shares of its common stock, which indorsement was signed by the respondent on June 28-, 1898, and states that for the consideration of the sum of $111.27, credited on his note, he releases all claims under the certificate, and surrenders the same, for cancellation. It is urged that this indorsement constitutes a complete and final settlement of the transactions between the parties up to 1 that date. The facts and circumstances in evidence, [357] however, negative such contention. Long prior to the date of the indorsement the certificate in question had been transferred and surrendered to the plaintiff for cancellation, and it had issued another certificate to the respondent in lieu thereof, which, at -the time of the indorsement, he had in his possession. "When the indorsement was made the indorser’s obligation had already been overpaid, and he was then entitled to have the trust deed cancelled. Such is the finding of the court, and its finding appears to be supported by the evidence. The court also found that the said credit and release were without consideration, and that the act of the plaintiff, as trustee of the National Building and Loan Association, in procuring, after the loan had been fully paid and satisfied, the release and making the credit, was void, and we cannot say that such finding is not warranted by the proof. Nor can we assume or hold, under the evidence in this case, that by 2 that indorsement the respondent intended to or understood that he was also releasing any and all claims he had against the plaintiff prior to that date, by virtue of the certificate which he then had in his own possession. Especially is this so when it is considered that at the time of the indorsement the respondent had already paid over $1,900 because of the loan. It is true there is some evidence tending to show that the National Building and Loan Association was at the time of the transfer in a failing condition, but that it was insolvent does not appear. It is shown, however, that the transferee continued the business. Undoubtedly, when a building association sustains losses, each member thereof must bear his proportionate share; but just what the losses, if any, were in this case, or whether they were properly distributed, is not established by proof, and therefore no question as to losses can avail the appellant, to sustain the validity of the indorsement. The case of Betz v. Association, 22 Utah 149, 61 Pac. 334, is not in point in this' case, because the material facts in that case differ from those in this. Likewise as to the case of [358] White v. Building Co., 21 Utah 23, 59 Pac. 521. We are of the opinion that tbe court properly admitted the evidence in question. It is further urged that the judgment ought to be reversed because of the admission in evidence, over the objection of the plaintiff, of the computations of the witness Meloy. The witness made the computations according to the rule 3 of partial payments, and it is insisted that the rule does not apply to a case like this. The computations, however, were evidently not adopted by the court, and therefore, if it be admitted that such rule does not apply to this case, the error, if one was committed, was harmless. According to the computations, the amount due the respondent was more than the amount allowed by the decree. In arriving at the amount due the respondent, the court, it seems, adopted the plan set forth in the appellant’s regulations in force and representations made at the time of the loan, and according to which the transaction was to end at the maturity of the note, April 29, 1898. This is indicated by the twelfth finding of fact, which reads: “The court finds that the issuing of stock, the making of the note and mortgage, the issuing by plaintiff of lieu stock, were all in fact one transaction to secure the repayment of the loan, and that the monthly payment of dues and loan dues upon the stock up to the maturity of the note fully discharged and paid the said obligation of the defendant M. H. Desky; that the excess in said monthly payments over the principal sum constituted the only interest which the said National Building and Loan Association and said plaintiff, Western Loan and Savings Company, were entitled to receive or retain.” This finding is clearly in accordance with the declared plan and object of the appellant, as shown by its bylaws, regulations, prospectus, and representations; and, 4 while it is contended that such finding is inconsistent with the fifth conclusion of law, we think such contention is not well founded. The facts so found appear to be legitimate [359] deductions from the evidence. Nowhere in the findings docs it appear that the court resorted to the rule of partial payments in determining the amount due the respondent. The point here under consideration, as appears from the record, presents no ground for reversal. Error is also predicated upon the thirteenth finding of fact, where the court found “that ‘loan dues/ as used in said note and mortgage, did not and does not mean ‘monthly 5 interest.’ ” We do not, in view of our conclusion in this ease, think an extended discussion of this point important. Suffice it to say that we deem the finding justified by the evidence. It is in harmony with the by-laws and the appellant’s own plan of operation. Loan dues are there characterized as payments upon the stock — as a charge upon the stock — and only the excess of such payments is regarded as interest or allowance for the loan. The appellant must be held bound by its by-laws, regulations, and by the representations it made to the public. This court has frequently 6 decided that all payments made as dues upon the stock of such'a concern must be applied in reduction of the debt. Sawtelle v. Building Co., 14 Utah 443, 48 Pac. 211; Association v. Fowble, 17 Utah 122, 53 Pac. 999; Hale v. Thomas, 20 Utah 426, 59 Pac. 241; Howells v. Building Co., 21 Utah 45, 60 Pac. 1025; Association v. Kroeger, 22 Utah 134, 61 Pac. 559; Snyder v. Association, 23 Utah 291, 64 Pac. 870. It is not deemed important to discuss any of tbe other questions presented. We find no reversible error in tbe record. Tbe judgment is affirmed, with costs. •MINER, C. L, concurs. BASKIN, J., concurs in tbe judgment.