114 Ga. 983 | Ga. | 1902
The assets of the Southern Mutual Building & Loan Association were, on February 5, 1897,upon an equitable petition, placed in the hands of receivers, for administration and distribution. The case was referred to T. A. Hammond, Esq., as auditor, who passed upon the various issues arising in the Etigation thus inaugurated, and, in due time, filed his report. It appears that at least two classes of persons held what may be termed “ stock certificates” in the association. To one of these classes belonged those who undertook to mature their stock in the association by paying in monthly installments upon the usual building and loan plan. To the other class belonged T. Y. Cashen Jr., the plaintiff in error. He held a certificate of which the following is a copy: “ Southern Mutual Building and Loan Association of Atlanta. This certifies that T. Y. Cashen Jr., of Jacksonville, State of Florida, is
The following are sections of the by-laws of the association:
“ Article 1. Section 3. The capital stock of this Association shall consist of fifty thousand shares of the par value of $100.00 each at maturity, to be paid in monthly installments of such sums -as the board of directors may fix, until tbe maturity of the stock.
“Article 1. Section 4. The capital stock of this Association may also consist of twenty-five thousand shares of the par value, at maturity, of $100.00 each, of fully-paid stock to be sold upon such terms and at such rates of interest as the board of directors may determine. The fully-paid stock shall at no time exceed one half of the amount of the installment stock in force.
*988 “Articled. Section 1. Once a year, and often er if desired, the profits arising from the business shall be equitably apportioned upon the books of the Association to each share. Whenever the amount to the credit of any shares, consisting of the monthly dues paid and the profits apportioned, shall equal one hundred dollars, such shares shall be deemed matured, and such amount may be paid upon the surrender and cancellation of the certificate of stock.
“Article 4. Section 6. If any member dies, his legal representatives may withdraw his shares at any time and receive the money paid as dues on such shares. In no other case can a share be withdrawn until after one year from the date of the certificate. At any time after one year, and before two years, the certificate may be returned and the member will be entitled to receive for each share the money paid as dues. At any time after two years and before the maturity of the stock, the certificate may be returned and the member will be entitled to receive on such shares the amount paid as dues and such interest thereon as the board of directors may from time to time determine that the series of stock to which the withdrawing member belongs is entitled for each of the several years up to maturity, provided the same shall not be less than 6 per cent, interest for the average time upon the amount paid into the loan fund. No certificate can be withdrawn unless paid to date. A withdrawal fee of one dollar per share may be charged on all stock withdrawn. A member desiring to withdraw his shares must give the Association sixty days notice of such withdrawal. Without the consent of the directors, the Association can not be required to use more than half the money received from monthly payments in any one month in the payment of withdrawing and maturing stock. Members who have obtained loans can not withdraw their shares until the loan is paid.
“Article 5. Section 6. Each shareholder shall be entitled to one vote for every share held by him or her, either in person or by proxy, at any regular or called meeting. Notice of any stockholders’ meeting shall be sent by mail to the president or secretary of each local board, ten days prior to the meeting. No one shall be eligible to vote in' any election, unless all dues are paid to date, and no one shall be eligible to hold proxies unless a stockholder in good standing. The books for transfer of stock shall be closed thirty days prior to the election for board of directors, except for transfer of stock for loans.”
It was urged that Cashen’s claim against the association could not he treated as a debt, for the reason that it had no fixed maturity. Under the by-laws it was within the power of the association to mature his claim, at its option, at any time after the expiration of three years; or it was the right of Cashen, at any time after the expiration of one year, on sixty days notice, to demand payment of his certificate. It will not do to say that a demand is not a debt merely because the time of its payment depends upon stated contingencies ; nor is it fair to Cashen to defeat his claim as a creditor because he failed to give the sixty days notice required by the bylaw. This he could not possibly have done, because very soon after he received the stock the assets of the association were placed in the hands of receivers. Surely it would never do to hold that be
In the briefs filed by the able counsel on both sides many authorities pro and con were cited. We do not care to discuss them in detail, for we recognize that there is a decided contrariety of judicial opinion with respect to the controlling question involved in the present case. Some of the decisions, apparently contrary to the
Judgment reversed.