25 Mont. 444 | Mont. | 1901
Lead Opinion
after stating the case, delivered the opinion of the Court.
Many errors are alleged as grounds for a reversal of the action of the district court, but of these we shall notice only three.
1. In the directions given to the referee touching the credits to be allowed plaintiff in ascertaining the balance due, no' account was taken of the sum of $30 paid as interest and dues for June, July and August on the four shares of Series D. This amount, with interest from the date of payment, should have been allowed as a credit.
2. Plaintiff insists that he should have been allowed as •credits upon his loans the whole amount of the premiums paid by him as of the respective dates of payment. The theory of his argument is that the consideration or inducement for paying these large premiums was the mode of payment, being in small sums monthly, and his participation in profits resulting from premiums, dues and fines from time to time, and other sources of income; and that as the association allowed itself to become dissolved by limitation, this consideration has failed. He insists, also; that the relation between himself and the association should be declared to be that of debtor and creditor simply, and that the settlement should be made on that basis, he being allowed credit for all payments made on the principle of partial payments. Taking the contracts as they are stated in the bonds and mortgages according to their terms, they provide for a repayment of the sums advanced absolutely at the end of ten years, or upon the expiration of the charter limit, without reference to the maturity of the shares. They contain no stipulation that upon the maturity of the shares they should be finally surrendered in full payment of the loans. Under the by-laws of the association, however, this stipulation is to- be read into them, and they are to be construed accordingly. The shares were bought, and the loans or advancements were made,
The district court held that the only credits to which the plaintiff was entitled were the interest payments and the unearned portion of the premiums, and that he must pay the balance due upon the bonds and mortgages. No provision was made in the decree allowing him a distributive share in the assets upon final distribution. We think it was its duty to ascertain what the accrued value of the shares of each class was, and to allow plaintiff a credit also for these amounts upon the respective loans, without interest, after deducting’ from the value of the stock a sufficient amount to pay plaintiff’s proportionate share of the reasonable expenses of administration of affairs by tlm trustees. There can be no just reason assigned, under the circumstances, why the plaintiff should be compelled to pay the full amount, of his loan as found by the trial court, and then be presently reimbursed by the trustees. The method of settlement thus indicated not only secures to- plaintiff all the rights to which he is entitled, but. it also does no wrong to other shareholders. The settlement should, therefore, have been made as follows: Charge the plaintiff with the amounts of the loans, without interest, including the earned portion of the premiums as found by the district court; credit him with the ascertained value of his shares on May 6, 1896, less his share of expenses of administration; then charge interest from that date until the date of judgment upon any balance found due. Plaintiff should also be credited, as hereinbefore indicated, with the amount of the payment made in August, 1896, and in like manner charged with the insurance premium paid by the trustees in November, 1897.
3. Plaintiff contends that a receiver should have been appointed, because the evidence demonstrates that the association was insolvent at the date of its dissolution, and that at the time, this suit was brought the trustees were proceeding to continue the business by collecting dues, fines and interest from the borrowing shareholders, instead of limiting themselves to collecting and distributing the assets; thus casting an unequal birr
Let tho judgment and order be reversed, and the cause be remanded, with directions to proceed in accordance with the views herein expressed.
Reversed and remanded.
Concurrence Opinion
I concur.
Concurrence Opinion
I concur in the judgment of reversal, and with the conclusions and reasoning of the Chief Justice as to all matters except as to the premiums. There seems to be no contention between the parties as to the district court’s finding that the plaintiff was entitled h> a credit for unearned premiums or “bonus,” but as to its correctness I am not sure. If the company had failed to do its part of the contract, or if it had agreed to let the plaintiff pay up before the end of the life of the concern, then we should have a different case from the one at bar; but when the borrower gives a bonus for the use of the money, to be paid back in installments during a term limited, as he contemplates, by the life of the association, I cannot see why, at the end of such life, he should have a special credit upon his mortgage debt for any alleged unearned part of the bonus. In the auction sale of the money to. the borrower, he, knowing the term of the company’s life, made his bid proportionately large or small. I do not- see how he can get any credit for any alleged unearned part, except indirectly,, and so far as all the bonus went to swell the value of his stock with all the other stock, the value of the stock going to wipe-out his mortgages.