33 N.Y.S. 406 | N.Y. Sup. Ct. | 1895
This action was brought to recover of the defendants moneys deposited by the plaintiff with the Brown Street & Jef
It was established by the evidence that the plaintiff had on deposit in a bank in the city of Bochester a considerable sum of money, which was drawing only 4 per cent, interest. The defendants, with others, were directors of the loan association mentioned. The defendant Spiess, being informed that the plaintiff had money in a bank, and that it was drawing but 4 per cent, interest, suggested to him that, if he would loan some money to the association, he would obtain a much larger rate of interest. He informed him that the association was paying to its subscribers some 16 per cent, annually upon its shares, and that it would be to his interest to withdraw his money from the bank, and loan it to the association. By arrangement, the plaintiff met the directors of the association at a meeting held on the 3d day of January, 1888; and the plan of the business of the association was explained to the plaintiff by the directors. The plaintiff concluded to loan $5,000 to the association, and thereupon, in the presence of the plaintiff, the following resolution was adopted by the board of directors:
“On motion of John A. Spiess, it was agreed to accept the loan of $5,000 from Thomas H. Groves at four per cent, per annum until our next quarter. He shall, however, withdraw loan at any time in cash or association notes not to exceed three months, with interest. At end of present quarter, if loan is not withdrawn, dividends shall be allowed as on ordinary stock.”
Plaintiff had informed the directors that he might desire to withdraw the money for use if he should engage in business. He paid into the association $5,025, and was given a pass book, such as is furnished subscribers to the shares of the association. It appears from an entry in his pass book, dated on the day the money was advanced, that the plaintiff had subscribed for 500 shares of the stock of the association. He was credited with having paid the $5,000, and the further sum of $25, that being the entrance fee on 500 shares, according to the regulations of the association. The plaintiff having suggested, as stated, that he might desire to withdraw the money, there was written upon the last page of his pass book an agreement upon which he relies to sustain his cause of ac
“We, the undersigned, officers of The Brown Street and Jefferson Avenue Dime Permanent Savings & Loan Association, of Bochester, N. Y., hereby agree with Thomas H. Groves that we will pay him interest at the rate of four per cent, per annum on $5,000, paid by him into the treasury of said association, until the first day of March next, and also agree to pay him the cash on withdrawal or a well-indorsed note for not over three months, with use.
“Bochester, January 3, 1888.
John L. Acker, President.
“Frank Horn, Vice President.
“John P. Smith, Secretary.
“John A. Spiess, Treasurer.”
It is the contention of the plaintiff that this contract was the individual obligation of the defendants; that they had no authority to, and did not intend to, and did not in fact, execute it as a corporate obligation; and that having called upon the society for his money, and it not being paid, he was entitled to recover of the defendants personally under this agreement.
The $5,000 was allowed by the plaintiff to remain with the association, without notice of withdrawal, until the year 1893. He made other deposits with the association from time to time, aggregating $5,520. He was duly credited in his pass book with dividends on his shares, amounting in all to $3,740.48. No distinction was made in the entries in his pass book between these various deposits. At the close of the first quarter (March 1, 1889), the association paid to plaintiff $33.33. This was interest upon the $5,000, at the rate of 4 per cent, per annum. Letters from the plaintiff to the association were read in evidence which tended to show that he understood that his dealings were with the association, and not with the defendants personally. The articles of association of the company provided that persons loaning money to the company might withdraw the same upon giving written notice of such intention. The plaintiff directed a notice to the secretary of the association on the 3d day of February, 1893, of his desire to withdraw the sum of $10,000, giving as a reason that he was about to open a store. He stated in the notice as follows:
“My agreement with the association was that at any time I needed money, if the association did not have it, they would give me the association’s notes for two or three months, with interest, so I could use them at once. It is written in the back of my pass book, as you will remember,” etc.
At the time this notice was received, there were other applications for withdrawals on file. The articles of association provided that applications for withdrawals of money should be numbered and paid in the order in which they were received. The association ne_glected to respond at once to plaintiff’s call, and he commenced this action against the defendants.
The evidence fairly established that the plaintiff was aware when he loaned the money that the defendants were acting as the representatives of the association. There was no reason, so far as appears, why the defendants should assume any personal responsibility in the matter. They were directors and officers of the
The judgment appealed from should be affirmed. All concur.