| W. Va. | Jul 1, 1882
announced the opinion of the Court:
The counsel of the plaintiff in error insists, that the court should have sustained the demurrer to the first and second counts of the declaration; to the first count, because it failed to allege, that the pluintiff had given written notice to the defendant’s directory, as required by the constitution of the defendant, of.his intention to withdraw his shares ; and to the second count, because it is based on section 7 of article 14 of the defendant’s constitution and yet failed to show, that it was applicable to the plaintiff, as it did not allege, that he had given his stock as security, to which species of redemption only this section applies. But perhaps these objections might be met by the fact, that each of these counts alleges, that the plaintiffs’ shares had been withdrawn with the defendant’s consent, which consent was a waiver of the notice; and even if the redeemed shares named in the second count could not have been as of right withdrawn by the plaintiff under the defendant’s constitution, yet if it consented thereto, such withdrawal would have conferred on the plaintiff the same rights, as if his redeemed shares had been secured by his stock. We need not however decide, whether these two counts are good and sufficient, as upon the proof in the case, all the' facts being before us, and the case being submitted to the court in lieu of a jury, there can be no question, unless the defendant made out its defence of accord and satisfaction, that the plaintiff would have had a right to recover on the common counts in the declaration.
If under such circumstances we should think, that the two first special counts were defectively drawn, and that the court below ought to have sustained the demurrer to them, yet this error could not possibly have prejudiced the defendant, and to justify this court in reversing a judgment the error of the court below must be prejudicial to the plaintiff in error. When the record shows affirmatively, as in this case, that the supposed error of the court below in refusing to sustain a demurrer to some counts in a declaration could not possibly have been prejudicial to the plaintiff in error, such supposed error furnishes no ground for a reversal in this Court. See Merchants’ and Mechanics’ Bank v. Evans and Dorsey, 9 W. Va. 373; Hale v. The West Virginia Oil and Oil Band
There can be no question, bnt that on the facts proven on the trial and properly proven under the common money-counts and bill of particulars filed with them the plaintiff would have had a right to* recover, if the evidence does not sustain the defence set up by the defendant, though there had been no special count in his declaration. It is well settled, that though there has been a special agreement, yet if it has been rescinded by mutual consent, or in any other manner put altogether out of the case, the plaintiff need not declare on such special agreement but may recover on the common counts indebitatus assumpsit. See Planche v. Colburn et als., 8 Bing. 14 (21 E. C. L. 203); Phillips v. Wiggington, 1 Ad. & E. 33 (28 Eng. C. L.) 100; Keyes v. Stone, 5 Mass. 391" court="Mass." date_filed="1809-09-15" href="https://app.midpage.ai/document/keyes-v-stone-6403424?utm_source=webapp" opinion_id="6403424">5 Mass. 391; Perkins v. Hart, 11 Wheat. 251; Ladue v. Seymour, 24 Wend. 62; Londregon v. Corwley, 12 Conn. 558" court="Conn." date_filed="1838-07-15" href="https://app.midpage.ai/document/londregon-v-crowley-6575169?utm_source=webapp" opinion_id="6575169">12 Conn. 558; Johnson’s ex’r v. Jennings’s adm’r, 10 Graft. 4.
There was no necessity in this case to have any special counts in the declaration, The common counts were altogether sufficient. Nor was there any necessity to file a special plea of accord and satisfaction, as this defense could have been made under the general pleas of non-assumpsit and payment accompanied as these were in this case with a specification of payments. See First National Bank of Wellsburg v. Kimberlands, 16 W. Va. 555" court="W. Va." date_filed="1880-04-24" href="https://app.midpage.ai/document/first-national-bank-of-wellsburg-v-kimberlands-6592227?utm_source=webapp" opinion_id="6592227">16 W. Va. 555.
Upon the merits of the case the plaintiff had clearly under the constitution of the defendant a right to withdraw all his shares both the redeemed and the unredeemed. Under the 1st section of article XIV of defendant’s constitution a member had an unquestionable right to withdraw his unredeemed shares on certain terms clearly specified; and the 7th section of article XIV authorizes expressly any member, who has redeemed his shares and given his shares of stock as security, to withdraw these shares apparently on the same terms substantially as a member, who had not redeemed his shares. The plaintiff in this case had actually given his twelve shares of stock, which he had redeemed, as security for the money, which he had borrowed, and thus under the 7th section of article XJ V he had a right to withdraw these shares. It is
If we were to assume, as probably we might reasonably do, that this seventh section of article XIV contemplated, that what was rightfully' due from the redeeming member on his loans should on his withdrawal be paid up, though not then due, it would on such withdrawal be necessary to determine, what ex equo et bono was due. It would seem obvious, if the redeeming member had a right to withdraw and settle his loans then with the association, that in the absence of any express provision as to the terms of such settlement the association could not demand the payment in full of the money loaned with the interest thereon till the close of the association ; for though the member had promised to pay this, yet his promise was to pay much of this at future periods extending over years; and the present value of these future payments is all, that ex equo et bono he could be required to pay. Now, as he had paid up all the past interest, if is evident, that, excluding for the present the consideration of the premium, these loans would be satisfied by the payment back of the exact amount borrowed, that is, in the present case, by the repayment of the $1,116.00 borrowed; and upon this payment being made the member would be entitled to have refunded to him all the dues, which he had paid on the fifteen shares. The amount of dues, which had been paid, when the plaintiff withdrew, was $396.25. He would also be entitled to reasonable interest on such dues. That by section 1 of article XIV of the defendant’s constitution was fixed “ at simple interest at the rate of six per centum per annum for the average time on the amount paid in after the first year.” This interest would be about $23.85 ; and as the plaintiff had paid usurious interest theretofore on his loans, having paid interest on the par value of his shares instead of on the money actually loaned, he would be entitled to have this usurious
John J. Haigh,
To The U. S. Building Association, Dr.
To the amt. of the principal sum borrowed on redemption of twelve shares.. $1,118 00
Cr.
By amt. of dues, which had been paid on fifteen shares.$ 396 26
Interest on same accrued as per constitution. 23 86
Amount of usurious interest theretofore paid. 78 84
$ 498 94
Balance due.$ 619 06
But this would obviously be a mode of settlement unjust to the building association. The member withdrawing had agreed to pay for the preference in obtaining these loans amounting to $1,116.00 a premium to be paid at the close of the association of $684.00. By this mode of settlement insisted on by the counsel of defendant in error it is obvious, that the plaintiff on withdrawing would repudiate the payment of any portion of this premium, which he had agreed to pay, and which the association had a right to receive. Though he thus agreed to pay this legitimate premium for the loans, he now claims, that he had a right to withdraw and could be required to pay only the money borrowed and legal interest. Of course, if he had this right, every member would have it; and most of them would exercise it, just before the association closed; and thus no premiums would ever be received by the association. It would be obviously unjust thus to deprive the association of all premiums, when the statute had expressly conferred on it a right to receive such premiums. The most the defendant in error could claim is, that he should have been required to pay only such portion of the premium, $684.00, as would be a fair apportionment of it for the time he had the use of the $1,116.00 borrowed. This premium was payable at the close of the association an average period of sixty-five months, after the money was borrowed. If it
This, it seems to me, would be the legitimate mode of settlement, had there been no provision in the defendant’s constitution except those contained in the 14th article; but there is another article in this constitution not referred to in the plaintiff’s declaration, which appears to have been inserted for the express purpose of determining the manner, in which a settlement should be made, when a redeeming member withdrew and desired to have his deed of trust released. It is the 21st article, which provides : “ Any member wishing to have his deed of trust released shall repay the full amonnt of money covered by his deed of trust, &c., but in a,ll cases he shall receive credit on his note for the dues paid on his stock to the association.” This is very awkwardly expressed. Its purpose was apparently, when a member desired to withdraw from the association and obtain a release of his indebtedness to the association arising from his having borrowed money from it, to allow him to do so, and to provide, that the settlement of what should be paid by the borrower should be so made, that both parties should be left pecuniarly in the same situation, that they would have been in, had he continued a member to the close of the association. This purpose is confusedly expressed by declaring, that he is to be charged with
Now, as the business of this association was actually conducted, it would be impossible to effect the purpose of this article, to permit a settlement ofthis loan in advance without pecuniary loss to either party by an attempt to follow in detail the mode of settlement named in this article. The association did not take anote of the borrower for the amount of money actually loaned and require this note to be paid, as an individual borrowing money of another would pay it; and yet the drauhgtsman of this article has expressed his general purpose, that neither party should suffer pecuniary loss in the settlement, by using language, which would have been appropriate, had it been a loan by one individual to another, and a note had been given for the money borrowed, and this note secured by a deed of trust. But the form of the transaction, as actually used by the parties, is very different; and the language used in this article is inappropriate to express the idea, which was intended to be expressed, that neither party was to suffer pecuniary loss by the settlement of the loan in advance ; and if the details of this settlement as spoken of in this article were literally carried out, the obvious purpose of the article would be defeated.
We have in effect decided in the case of Pfeister v. Wheeling Building Association et al. supra, that the “ full amount of money covered by the deed of trust,” &c., is the amount of money actually borrowed and received by the member with legal interest thereon payable quarterly in advance and the premium bid for the preference in taking the loans. The principal of this loan and the premium being payable at the close of the association, when there would be due from the association to the member the par value of these shares, wherewith to pay off this principal due from him and this premium also, provided he paid up promptly his interest and dues to
To meet his obligations the plaintiff in this case would have had to pay his dues from the time, when he withdrew, to the close of the association, estimated to be four years and ten months. His dues on his twelve redeemed shares were $3.00 per week, and for the two hundred and fifty-six weeks would amount to $768.00; and the interest, which he would have had to pay, had he paid interest on the par value of his shares, as he had been doing, would have amounted to $522.00 ; but instead of paying interest on $1,800.00 the par value of his shares, he should have paid interest only on the money actually loaned him. Pfeister v. Wheeling Building Association et al., supra. The true amount of interest, which he ought to have paid after the time, when he withdrew, would have been $336.00. So that the “full amount of money covered by the deed of trust,” &o., was $1,104.00 to be paid at intervals extending over four years and ten months or, averaging the time, two years and five months after the date of the withdrawal. Discounting this $1,104.00 for this two years and five months at the rate of 6 per cent, per annum its present value would be $964.25, the true amount, which should have been paid by the plaintiff to procure the release of his deed of trust, the amount due on the withdrawal of the three unredeemed shares, the amount of dues paid in the preceding one hundred and eight weeks was $81.00, and interest after the first year about $5.00 total $86.00, which deducted from $964.25 would leave as due from the plaintiff $878.25, from which again
This result corresponds very closely with the amount, which was reached by the calculation we made based on what would have been the rights of the parties, where a member withdrew and paid off his indebtedness, had the constitution of the association made, no special provision about this mode of settlement. And this correspondence might reasonably have been anticipated; for independent of this 21st article of this constitution, if a member had a right to withdraw, the law would have said, that in exercising this right neither he nor the association should be pecuniarily injured, and that both parties should be left pecuniarily in the same situation, as though the member had not withdrawn. As we interpret this 21st article, the draughtsman intended to carryout what we conceive, would have been at any rate the rights of the parties. And in the last statement we have endeavored to give to both parties their respective rights so understood, adopting the mode, so far as could be done, indicated by this 21st article. In the first statement we have endeavored to give to each party the same rights but by a mode, which was the most natural in the absence of any special provision in the constitution, but which adopted in the calculation an estimate of interest and past dues paid as also the dues themselves, which-had been paid on the redeemed shares, which was not necessary to consider in the mode of settlement indicated in the 21st article ot the constitution. That the results of these two modes of calculation should be substantially the same might therefore be expected.
The errors in the calculations of the secretary of the defendant consisted first in charging interest on the par value of the shares, $1,800.00, instead of on the amount actually loaned, $1,116.00. This he had no right to do. See Pfeisler v. Wheeling Building Association et al., supra. He again erred in making the arbitrary abatement of $90.00 instead of making a discount for payment in advance at the rate of six per cent, per annum. This discount at this rate was proper as shown by the Maryland cases, which we have cited. He
It remains to determine, whether this $318.00 can be properly recovered in this suit on the actual facts proven in this case. It is well settled by numerous decisions, that money paid under a mistake of law cannot be recovered back. If it be paid in ignorance of facts, it may be recovered back. To permit money to be recovered back, which has been paid by a party with a full and perfect knowledge of all the facts, simply because he was mistaken in his opinion as to his legal rights, would be to introduce into the law a new and most dangerous principle. In the case of Mayor, &c. of Richmond v. Judah, 5 Leigh 305 the authorities on this subject are fully reviewed ; and they establish beyond controversy the above proposition. Among these authorities are Bilbie v. Lumley, 2 East 469; Lundie v. Robertson, 7 East 231 and 12 East 38; Brisbane v. Dacres, 5 Taunt. 144 (1 Eng. C. L. 43); Milnes v. Duncan, 6 B. & C. 671 (13 Eng. C. L. 293) Brown v. McKinley, 4 Esp. 279 ; Martin v. Morgan, 1 B. & B. 289, (5 Eng. C. L. 87); Child v. Morley, 8 T. R. 610; Lyon v. Richmond, 2 Johns. Chy. 60. These and other cases cited in this case are but a very few of the very large number of cases, which have been decided based on these principles. The rule is firmly established, that when a party voluntarily pays money in ignorance of law, though he could clearly not have been compelled to pay the money, still he never can recover it back in the absence of duress or fraud practiced on him. Judge Carr in the case of Mayor, &c. of Richmond v. Judah, 5 Leigh 311 thus states this proposition : “Can a party who has voluntarily paid money with a full knowledge of all'the facts and circumstances but under a mistake as to the law recover it back by an action for money had and received to his use? I hold, that he cannot; and if a multitude of adjudged cases settle a point I think there are fewer better settled in law.”
This, as I understand the case now before us, is the exact question involved in this record. Upon it the counsel of the defendant in error refers to but two authorities Ashmole v. Wainwright, 2 Ad. & E. 873 (42 Eng. C. L.
In the ease before us the payment of the $1,116.00 by the plaintiff to the defendant on October 24, 1876, on his withdrawal from the association was, as shown by the evidence in this case, a perfectly voluntary payment made with a perfect knowledge on his part of all the facts and circumstances of the case but under a misconception as to the terms, on which under the constitution of the building association he had a right to withdraw. He had in his possession the constitution of this association and had had possession of it for nearly two years taking in the blank leaves bound up with it every week receipts for his dues paid. He had several days before told the secretary of the defendant, that he intended withdrawing, and was then told, that if he withdrew, he would have to pay under this constitution on his withdrawal $1,240.00. When he came back after several days and complained, that this sum was too much, the calculation was made over and the demand was reduced to $1,116.00, with which he appeared satisfied and paid it in cash and had his notes surrendered and his deed of trust released.
It is true, that he was not at the time, when this settlement was made, told by the secretary of the building association, that the discount of $90.00 made because of his payment of the money borrowed in advance of the time, when it was due,
The circuit court gave the plaintiff a judgment for the difference between this $90.00 and the true discount at six per cent, per annum. But the plaintiff misconceiving his legal rights, when he knew all the facts and circumstances, permitted this settlement to be made in this manner, and concluded it by paying the $1,116.00 and having his notes surrendered, and could on the principles, which we have stated, never recover back any of the moneys so paid. ITe had just as much right to have other errors as to the rights of the parties corrected as the particular one, which was corrected by the court. It was a voluntary settlement made with perfect knowledge of all the facts ; and the voluntary payment made by reason of this settlement cannot be recovered back, though it now appears, that the plaintiff had a right to withdraw on the payment of some $300.00 more or less than the sum, which he thus actually and voluntarily paid.
It is true, that the association had received from the plaintiff as from all its other redeeming members usurious interest for two years prior to this settlement; but it is equally true, that this is an immaterial matter in this case, as the declara-ration made no complaint thereof, and this suit was not in any manner based upon this receipt by the association of usurious interest. But, that the “association actually compelled the plaintiff to pay the like usurious interest for the five years the association would last after this settlement” is entirely without foundation. When this settlement was made the plaintiff was no needy borrower prepared to pay any ex-actions of usurious interest, which might be demanded. On the contrary he seems to have had an abundance of money, for which he had no present use, and sought to pay off a debt at once, a part of which was not due, for nearly five years. So little use had he for this surplus, that he was willing to pay off this debt, though his creditor would only discount it at a rate of less than 3 per ceut. per annum. In effect he was willing for the use of this money ($1,118.00) for this long time to take the very small sum of $90.00. And having agreed to do so he now seeks to compel bis creditor to pay him 6 per cent, per annum interest on this money, and seems to regard as usurious on the part of his creditor the acceptance of this money by him at 3 per cent, per annum interest.
It is true, that the creditor was unwilling to receive the money and allow more than three per centum per annum interest ; and it is further true, that he had a right to compel his
In the ease of Mayor, &c., of Richmond v. Judah, 5 Leigh 305, the payment was of city-taxes, which the city had a right to enforce summarily by sale, and yet the payment was held to be voluntary ; and therefore, though the taxes claimed were unjust, the amount paid could not be recovered back. Here the building association had not even the power of sale under the deed of trust, unless the plaintiff made default in the payment of small amounts of fines and dues — amounts he was perfectly able to pay, as he had cash enongh to pay them off for five years in advance. The principles we have laid down were applied in a transaction between a building asso-esation and a member in Miller v. Second Jefferson Building Association, 50 Pa. St. 32.
We are for these reasons clearly of the opinion, that the circuit court erred in its judgment in favor of the plaintiff, rendered November 1st, 1879 ; and this judgment must be reversed, and the plaintiff in error must recover its costs in this Court; and this Court entering up such judgment as the circuit court should have entered, must dismiss the plaintiff’s case and give a judgment for the defendant for its costs in the circuit court.
Judgment Reveesed. Cause Dismissed.