Beyer v. National Building & Loan Ass'n

131 Ala. 369 | Ala. | 1901

HARALSON, J.

The errors assigned, 18 in number, relate, — 17 of them — to sustaining the demurrers to the separate sections of .the amended bill, and the 18th to granting the motion to strike the amended bill from the files.

1. The first section of the 'amended bill numbered 13 is: “Complainant alleges that at the.time he applied for his said loan or advance, there was more, than one applicant to borrow the funds of said association, and the respondent failed to put said money up at the highest bidder as required by law and the by-laws of the respondent association, and' complainant alleges! that, this made his relation to or with the association that of a borrower only, and his said transaction that of a simple loan, and for this reason, he is entitled to a credit, on the amount advanced to him, for all sums paid in the way of premiums and dues.”

This paragraph assumes that the association was bound to lend its money to the highest bidder. This loan was made while section 1556 of the Code o'f 1886 was of force, which provided, in its 9th subdivision, that when funds were on hand to lend, the company could lend them on such terms and conditions as "were prescribed by its by-laws, but the security should be by a mortgage on real estate sufficient to protect the association. There is no averment here, that the loan was not on such terms and condition's as were prescribed by the by-laws, and from anything appearing, the loan may have been made in ‘accordance with the by-laws. Furthermore, subdivision 10 of said section provides that the company may lend' its funds on hand to the highest bidder, when deemed advisable by it. The complainant seeking to 'attack the mortgage.on account of alleged invalidity, should have alleged facts to show such invalidity, independent- of alleged conclusions. Moreover, it does not appear, that complainant suffered any damage by reason of said alleged failure to put said money up to the highest bidder. The demurrer covered these infirmities of this section,. — N. B. & L. Asso. v. Ballard, 126 Ala. 155; S. B. & L. Asso. v. Casa Grande Stable Co., 128 Ala. 624; Barrett v. C. B. & L. Asso., 130 Ala. 294.

2. The 14th section is: “Complainant further alleges, that he is only liable on an accounting to six per cent, interest, that being the amount contracted •for in the bond executed by him to the said association, and the rate fixed by the by-laws and said association.” The grounds of demurrer were, that the allegations of this sections are inconsistent with and repugnant to the complainant's contract exhibited with the original bill; and that the allegations were not of matters of fact, but were the conclusions of the pleader. These grounds were well taken. The contract set up by complainant in his original bill, was?, that he was to ‘pay $57 per month, to be. applied, — $21 to monthly dues on stock, $21 to precedence premium on said stock per month, and $15 j>er month, interest on the loan, besides all fines and assessments levied against him pursuant to the. by-laws, said payments! to “be continued until the dues so credited on said stock, together with the dividends declared thereon shall equal the par value of said stock.” The contract further provided, that a failure for six months to make said monthly payments, should have the effect to make the entire debt due and payable at the option of the association. He thus contracted to pay dues, premiums and interest, while the allegation of the section is, “that he is only liable on an accounting to six^per cent, interest.” The obligations to pay dues, and premiums on stock, and interest on the loan are separable obligations. — Interstate B. & L. Asso. v. Brown, 128 Ala. 462; Barrett v. C. B. & L. Assn., 130 Ala. 294.

3. The 15th section was: “'Complainant alleges, that the agent of said respondent with whom and through whom he obtained said loan, before said bond and mortgage were executed, falsely and fraudulently represented to the complainant that the calculation had been made showing that the stock of said association which was offered to complainant, and for which he subscribed, would mature in not more than six years, and. by complainant making monthly payments of dues, interest. and premiums for the period of six years his stock would mature and his loan thereby become liquidated and cancelled, and by such representtions prevented complainant from making any calculation to ascertain whether the same was true, and relying upon such false and fraudulent representations complainant did not make any calculations, but was. induced by said representations to enter into said contract and execute said bond and mortgage, and although complainant has paid his premiums, interest and dues for more than six years, «aid stock lias not matured, nor his loan cancelled by said association.”

It "null be observed, that these alleged representations were no more than an expression of opinion as to what would occur six years in the future, and not of existing facts, — an opinion as to the time when the stock would mature, a matter based on calculation, open to the complainant to make as well as to the agent. It iis not averred that the agent knew the representations were false and made with the dishonest, intention of misleading and deceiving the complainant, and that they had such effect. “They must have been made falsely and fraudulently and with the intent to deceive. Less than intentional deception in such conditions will not answer,” even if such representations made by the agent without the knowledge of the company, could subject it to responsibility to damages caused thereby. B. W. & E. Co. v. Elyton L. Co., 93 Ala. 549, 553; Bradfield v. Elyton L. Co., 93 Ala. 527; M. S. R. Co. v. Matthews, 77 Ala. 357; Lake v. Security L. Asso., 72 Ala. 307 ;Cooke v. Cook, 100 Ala. 175; Tubb v. L. L. & G. Ins. Co., 106 Ala. 651, 658; Stephens v. Ala. S. L. Co.. 121 Ala. 450; Johnson v. N. B. & L. Asso., 126 Ala. 672; Thompson on B. & L. Asso., p. 177, § 95.

4. The 16th and 18th sections of amended bill, set up in substance, that the contract was usurious, because it required the payment, of another sum of $21 per month in the way of premium on said loan, in addition to the 6 per cent, per annum stipulated to be paid on the loan. We need not consider these averments further than to say, they are "without merit, as we have heretofore had occasion to hold. There was no error in sustaining the demurrers to them. — Interstate B. & L. Asso. v. Brown, 128 Ala. 462.

5. The 17th section, setting up that the statute authorizing building and loan associations to charge more than 8 per cent, per annum, is violative of the constitution of the State, is void, is without application to the case. This averment is sought to be based on section 23, Art. IV of the constitution, which prohibits a local law from being enacted for the benefit of individuals or corporations, or the suspension of any general law for the benefit of any individual, association or corporation. To dispose of this section of the bill, it need only be said, that the statute under which the loan was made did not authorize the company to charge more than 8 per cent per annum on the loan, (Code of 1886, §§ 1553, 1556) ; and that the contract-did not provide, for more than 8 per cent, interest, but for 6 per cent. only. It may be added, that our 'statutes on the subject of building and loan associations, apply to such organizations as a class, and do not bestow any special benefit upon any individual or corporation, or suspend any general law of the State for such purpose.

6. The defendant had demurred to the amended bill, and to its different sections, and the demurrers were respectively sustained. A motion had also been made to strike the amended bill. The court after sustaining these demurrers, also granted the motion to strike the amended bill from the file. It was unnecessary to have granted this motion, since the ruling sustaining the demurrers disposed of the amended bill, leaving nothing on which the motion to strike could operate. Demurrer was the proper form to question the sufficiency of the amendments, and not a motion to strike. — Brooks v. Continental Ins. Co., 125 Ala. 615. Under the conditions prevailing, we discover no injury to complainant from the granting of said motion.

Let the decree be affirmed.