41 So. 151 | Ala. | 1906
The certificates of stock of the complainant in the defendant Association, recited that the share's of stock were, subscribed for, “subject to all the conditions, rules, regulations and by-laws of said Association now in force or which may be hereafter enacted.”
In his application for shares of stock, which formed part of his contract with the association, complainant agreed “to abide by all the terms, conditions and bylaws” of the company.
The bill as originally filed, — and this is the controlling point in litigation, — alleged that the complainant, in July, 1889, subscribed for and had issued to him twenty (20) shares of the stock of the defendant association of the par value of $1,000.00, and at the time said subscription Avas made, the association guaranteed to him that the stock Avould mature after scwenty-two (72) monthly payments thereon; that afterAvards, on the 5th day of October, complainant subscribed for tAventy (20) additional shares, on the faith of a similar guaranty, as to the maturity thereof; that complainant had borroAved of the association various sums of money, aggregating more than fifteen hundred ($1,500.00) dollars, to secure Avhich, all of said shares of said stock had been pledged to the association, and a mortgage had been executed by him, also, on certain real estate, to secure one of the loans of $1,000.00; that complainant had made seventy-tAvo monthly payments on all of said shares, but that the association had failed to mature the same, and Avas taking steps to' foreclose said mortgage. .The bill prayed for an injunction against said association; that the mortgage might be canceled, and also asked for an accounting.
The ansAver denied that said association made any promise or agreement Avitli complainant that said stock AArould mature in seventy-tAvo months, as alleged in' the second and third paragraphs of the bill, and denied specifically, that the association ever, at any time, made any promise or agreement Avitli complainant, that any of the shares of stock would mature at any definite time, or on the payment of any definite number of monthly installments on said stock. On final hearing on pleadings and j>roof, the chancellor dissolved the injunction theretofore granted, and dismissed the bill.
The complainant testified, that he Avas solicited to take the stock by one Mr. EEammon, Avho guaranteed
The witness, S. R. Cruse, examined by defendant, who was the secretary of the association, was asked by complainant on the cross, if it was not a fact that the association undertook that all its shares both to investors and borrowers, alike, should mature on the basis of seventy-two monthly payments, and he replied, .“I do nor know of any literature originally issued by the association setting forth such an undertaking on the part of the association. The literature of the association has always been upon the basis of an estimate; that is, an estimate simply of the amounts that would probably be realized in about six yéars. * * *' The original by-laws do not provide for maturity after making seventy-two payments. Section 18 of the by-laws fully sets forth
It is-true that the association, for several years after it commenced business, estimated that its stock Avould mature after seventy-tAvo monthly payments. Every as
The motion to suppress the deposition of Cruse, on the grounds stated therefor, was properly overruled. There is no rule or statute that requires the commissioner, himself, to take down the answers of a witness in his own handwriting. “It is the duty of the commissioner to reduce the answers of the witness to .writing, .or cause it to be done by the witness himself, or some impartial person, as near as may be, in the language of the Avitness,” etc. Code 1896, § 1841.
There are other questions raised and discussed, bir they are unimportant, as AAdiat Ave have said disposes of the case.
Affirmed-.