13 S.D. 637 | S.D. | 1900
Lead Opinion
In its decision the circuit court finds the facts to be as follows: “(1) That the plaintiff the American
Amount received on loan..........................................$300 00
Interest on same at 7 per cent, from date received.................135 10
Total...........................................................$435 10
Amount paid in as dues.............................................$324 00
Interest on same according to the rule of partial payments at 7 per cent................•.......................................... 80 30
As interest ....................................................... 124 50
Interest thereon according to the rule of partial payments aforesaid.. 27 20
Total.........................................................$556 00
—Being $120.90 more than the amount received by defendant Gullick, as aforesaid, with interest thereon as aforesaid from the date of its receipt. This balance, however, is stated merely for the purpose of ascertaining in whose favor the balance exists, but the amount of such balance is not to be deemed conclusive as to its exact amount. (6) That prior to the commencement of this action the defendant Thomas Gullick elected to apply all of said payments made to said association as payment pro tanto upon said mortgage indebtedness at the time said payments were made, and communicated such election to the plaintiff. (7) That no action or proceeding at law or otherwise has been had to enforce the„ payment of said alleged indebtedness. (8) That the defendant George More-house has an interest in and lien upon the said premises by virtue of a mortgage thereon executed and delivered to him by said defendants Thomas Gullick and Johannah Gullick on the 8th day of February, 1898, to secure the payment to him of
Upon the facts so found the court concludes, as matters of law, (1) that plaintiff is entitled to no relief whatever in this action; (2) that the defendants Thomas Gullick and Johanna Gullick are entitled to judgment dismissing this action upon the merits; and for the costs and disbursements, and that the bond and mortgage in controversy herein be cancelled and returned to them; and (3) that the defendant George Morehouse is entitled to judgment that his mortgage is paramount to that of plaintiff’s, and for costs. Judgment was entered in favor, of defendants for the dismissal of the action upon its merits, and for costs. A new trial was denied, and plaintiff appealed.
The motion for a new trial was made upon the following grounds: (1) Insufficiency of the evidence to justify the decision; and (2) that the decision is against law. The particulars in which the evidence is alleged to be insufficient are thus specified: , “(1) There is no evidence that at the time of the making of said loan the said defendant Thomas Gullick paid the American Building & Loan Association $300, or any other sum whatever, as a premium for the privilege of making said loan. (2) That the evidence is insufficient to justify the decision as to the fifth finding *of fact, that payments of dues and-interest made by said defendant were credited by said association as payments upon the loan or advancement to said defendant Thomas Gullick, and said finding is contrary to the undisputed evidence and the admissions of the defendant in said cause.” These objections are technical rather than substantial. It may be conceded that they are well taken, 'without affecting the real
It is conceded that defendant Thomas Gullick performed all the obligations of his contract with the association up to the time It ceased to perform the contract on its part. It appears from the plaintiff’s evidence that Gullick paid $324 as dues on stock, and $115 as interest on the loan. If the amount paid as dues on the stock should be applied upon the loan, the note sued upon was overpaid, and the trial court was right in dis missing the action upon its merits. There are numerous recent decisions relating to the settlements of building and loan associations with their members. All authorities agree that on the premature abandonment of the enterprise from whatever cause, the original contract between the association and the borrower cannot be carried out, and that neither party is, therefore bound to a literal fulfillment. There are different views as to the relative rights and obligations of the advanced and unadvanced members; if being settled, according to all theories, that the former cannot b'e assessed to equalize the value of shares, but that the assets are to be distributed as they stand. One view is that the relation between the association and the borrowing member has been changed by circumstances to the one subsisting between the ordinary creditor and debtor, and that the borrowing member is to be charged with the actual amount received by him, with interest at the legal
Concurrence Opinion
I cannot concur in the conclusion reached by my associates. The avowed character and object of this