Hiskey v. Pacific States Savings, Loan & Building Co.

76 P. 20 | Utah | 1904

McCARTY, J.,

after making the foregoing statement of the case, delivered the opinion of the court. _

1 Counsel for appellant contend that the trial court, by overruling the demurrer to the complaint, and enter-' ing judgment cancelling the bond and mortgage, deprived appellant of a right guaranteed by the Constitution of this State. They say in their brief: “The question whether the plaintiffs should be upheld in their refusal to abide by the contract involves a constitutional right conferred by the Constitution of Utah, and that is that all persons have the right to acquire, possess, and protect property.” They then proceed to discuss the question on the theory that the parties to the contract under consideration having exercised their inherent and constitutional rights by entering into it, appellant is entitled to have it enforced in accordance with its terms, and that “to deny this right is to deny appellant the equal protection of the laws.” This contention is entirely without-merit. Ry complying with the requirements of the laws of this State, foreign corporations are accorded the same rights and privileges, and the same protection of the laws, as are extended to domestic corporations. The same rules governing the making and enforcement of contracts apply to all alike, and the fact that appellant is a foreign corporation does not entitle it to any greater or other privileges than those lawfully exercised by corporations created and existing under and by virtue of the laws of this State.

2 3 The paramount and vital question, however, in this case is, was the payment of $444.20 made by plaintiffs July 9,1901, a liquidation of the debt; the sum thus paid being more than equal to the unpaid balance o’f the principal, $1,300? The monthly payments of dues and premiums made by plaintiffs up to this time amounted to a sum total of $858. These payments, under what is now the settled law of this State, plaintiffs were entitled to have credited on the amount borrowed, to-wit, the $1,300. The different amounts paid by plaintiffs under the contract, including the monthly payment of $6.50, as interest, aggregate $1,659.70, which they claim wipes out the debt, and cancels all obligations created by the contract on their part. Appellant insists that there is still due from plaintiffs on the contract the sum of $263; this being the difference between the amount ($1,659.70). paid in by them and $1,922.70,. the amount or sum total for which they obligated themselves in the bond and mortgage. In 1890 the Legislature passed a law authorizing the formation of building and loan associations in this State (then Territory), and prescribing certain rules and regulations by which they are to be governed. Section 1 of the act, in part, provides “that whenever any number of persons, not less. than five residents of the territory, may desire to become incorporated as a mutual building, loan and homestead association, for the purpose of loaning' money to the members thereof only,” etc. Section 10 provides as follows: “A borrower may repay the loan at any time upon duly complying with the charter and by-laws in relation to repayment of loans, ’ ’ Sess. Laws Utah 1890, pp. 7-10. While there have been some changes made in the law by subsequent legislation, section 10 is continued in force literally by section 396, Rev. St. 1898; and appellant, although a foreign corporation, is presumed to have entered into the contract with notice of the existence of this law.

4 'It is not claimed but what plaintiffs complied with the by-laws of the corporation np to the time they remitted their last payment of $444.20, and wiped out the principal indebtedness of $1,300. Therefore, under the foregoing provisions of the statute their obligations under the contract were discharged, and they were entitled to have the bond and mortgage canceled, regardless of the eonscionableness or unconscion-ableness of the contract.

5 6 Counsel for the appellant have briefly discussed the question of estoppel; claiming that, as plaintiffs solicited the loan and entered into the contract with full knowledge of the terms thereof, they are estopped from claiming that the obligations have been fully discharged. A party to a suit is never estopped from availing himself of every defense sanctioned by the law, in the absence of some showing that he resorted to deceit, fraud, or misrepresentation by which the other party, who, being ignorant of the real facts, and acting under such misrepresentations, fraud, or deceit, was misled thereby to his injury. Trust Co. v. Wagener, 12 Utah 1, 40 Pac. 764, and cases therein cited. It is manifest that there is no fact alleged in the answer in this case, which, if proved, would constitute an estoppel. The pleadings show that all of the facts and circumstances surrounding and leading up to the transaction and upon which the loan was based, were equally within the knowledge of appellant and respondents.

The judgment is affirmed, with costs.

BASKIN, C. J., and BARTCH, J., concur.