189 Mo. App. 95 | Mo. Ct. App. | 1915
The plaintiff is a borrower from the defendant building and loan association and seeks to enjoin a sale of his property covered by a deed of trust given to secure payment of the same. A loan was first made, August 24, 1909, for $750'. The plaintiff at the same time took out and pledged to the defendant thirty-eight shares of its installment stock of the value of $100 each when fully paid up. By his note or bond, secured by the deed of trust, plaintiff contracted to pay “first, the sum of nineteen dollars as monthly dues on said thirty-eight pledged shares, second, the further sum of six and 25-100. . . dollars as monthly interest and premium on said loan; and shall pay all fines, penalties and charges assessed against said share, either until the dues and dividends credited by said Association to each of said pledged shares, in accordance with its by-laws, shall amount to the sum of one hundred dollars, whereupon the sum so loaned shall be repaid by the absolute surrender to, and cancellation by, said Association of said pledged shares, or until said obligor shall repay the sum loaned in accordance with the by-laws of the Association.” The monthly dues on the stock, fifty
The ground of plaintiff’s complaint is that the premium thus provided for by the by-laws and agreed to be paid by plaintiff is not fixed in the manner provided by section 3389, Eevised Statutes 1909, and is, therefore, not protected by section 3391, Eevised Statutes 1909, from being usurious. This contention is based on the ruling of the Kansas City Court of Appeals in Holmes v. Loan Ass’n, 166 Mo. App. 719, 150 S. W. 1111.
Plaintiff further states in his petition that he has repaid to the said defendant association the said sum of seven hundred and fifty dollars, received by them, together with interest thereon at the rate of eight per cent per annum, being the amount that the plaintiff claims by reason of the premises would be due the said defendant association, except the sum of one hundred and forty dollars, which amount the plaintiff on the--day of February, 1914, duly tendered in lawful money to defendant association and demanded a return to plaintiff of the said obligation and deed of trust; that the defendant refused to receive said sum of money, or to cancel said obligation and surrender said deed of trust, but, arbitrarily and without authority in law, demanded that the plaintiff pay to
The defendant’s answer admits making the loan and the execution of the papers evidencing and securing the same; asserts that the interest and premium were fixed according to its by-laws and denies that same is usurious; admits the tender of one hundred and forty dollars and its refusal to accept same in full payment of the loan, and denies that the amount
I. The only evidence in the case as to what plaintiff had paid on the loan was given by the defendant’s secretary, called as a witness for plaintiff, so that the facts are not disputed. Without going into details, it is sufficient to say that the plaintiff paid his dues, interest and premium, amounting to $26.25 per month, irregularly, so that on April 1, 1911, he was in arrears some five or six monthly payments and owed $9.50 for fines. At that time a settlement was made between plaintiff and defendant, by which plaintiff cashed in his shares of stock at their then value, received credit for all delinquencies and $100 on the principal of his loan, and defendant paid him a cash balance of $122.50. The plaintiff then took out forty new shares of stock, making his monthly dues thereon $20, and in effect made a new loan for $650, on which he was charged and paid $5.42 each month for interest and premium. His monthly payments thereafter amounted to $25.42. It will be seen that the interest and premium were fixed in accordance with defendant’s by-laws as above set ont. On this loan the plaintiff’s payments were still more irregular, the last payment being in November, 1913. Though plaintiff was then eight or nine months in arrears and fines amounting to $35 had been assessed against him. This suit was filed February* 25, 1914.
It is evident that the question of usurious interest so far as it might affect the first loan is out of the case. When plaintiff and defendant made the voluntary settlement in April, 1911, the plaintiff cashed in and accepted the profits on his thirty-eight shares of stock which profits arose from his and like ..contracts with other borrowing shareholders. If Ms contract was usurious, so were all the others and the profits re
II. Under any view of the evidence in this case plaintiff did not tender to defendant the amount actually due. The second loan, with which we alone are concerned, is for $650'. The total amount paid thereon by plaintiff, stock dues, interest, premium and fines, during the three years between its date and •plaintiff’s tender of the one hundred and forty dollars as the total amount then due, is $593.74. The simple interest on the amount of the loan for this period at eight per cent, the amount plaintiff says in his petition is correct, or at six per cent, as he now claims is all that can be charged under court decisions as to usury (Arbuthnot v. Loan & Bldg. Ass’n, 98 Mo. App. 382, 72 S. W. 132, and McDonnell v. Sav. & Bldg. Ass’n, 175 Mo. 250, 75 S. W. 438), would in any event make a considerably larger amount due than was tendered. The plaintiff, however, does not claim, and could not well do so, that the fines for nonpayment of stock dues were not, for the most part at least, correctly assessed.
It is generally held that, in order to maintain injunction to restrain the enforcement of steps taken to collect rnoney on the ground that the amount demanded is excessive or that part of same is illegal, the plaintiff must first tender what is justly due. [McDaniel v. Springfield Waterworks Co., 46 Mo. App. 273, 280; Porter v. Paving & Const. Co., 214 Mo. 1, 22, 112 S. W. 235; Johnson v. Duer, 115 Mo. l. c. 379, 21 S. W. 800.] In a case involving the same principle as here, Price v. Empire Loan Ass’n, 75 Mo. App. 551, 556, the court recognized this rule and quotes form High on Injunctions, section 1116, as follows:
ni. Nor does the plaintiff complain in his motion for new trial of the court’s action in dismissing the bill instead of taMng an accounting and determining the amount due and allowing plaintiff to pay same as a condition to making the injunction permanent. The ground for complaint in the motion for new trial is that the court erred in finding any amount due defendant and that the evidence showed that plaintiff had already paid more than was justly due, and that the deed of trust should have been canceled and the injunction made permanent on the facts as presented.
IV. We also doubt whether the plaintiff presented the facts to the trial court in such a way as to admit of its making an accurate accounting on any theory of the case. Plaintiff admits that this court may not be able to make such accounting on the evidence. adduced in the trial court. He asks that this court determine if plaintiff owes defendant anything (which we have done) and, if we find that he does (and we so find), that we remand the cause for a full and final accounting'. This, we think, is not a proper method of trying a case. The plaintiff must present his whole case to the trial court in the first instance unless precluded from so doing by some adverse ruling in that court. He cannot present evidence sufficient to raise one question, suffer an adverse judgment and on appeal ask this court, while sustaining the correctness of the trial court’s ruling on the question presented, to reverse and remand the cause for further trial.
V. Under the ruling in Holmes v. Loan Ass’n, 166 Mo. App. 719, 150 S. W. 1111, to the effect that under section 3389', Revised Statutes 1909, the premium allowed to be charged in addition to the lawful
Interest may be at a certain rate payable in monthly installments during the life of the loan, which runs until the maturity of the stock unless paid sooner, and we may grant that premium cannot be thus indefinitely limited but must have an exact limit. The statute, section 3389, supra, as it now reads, after providing for competitive bidding for a gross amount of premium to be deducted in a lump sum from the face of the loan, or to be paid in monthly installments on the basis of the loan running one hundred and twenty months, provides: “Said association may provide in its by-laws that the bid for loans at its stated meetings, instead of a premium, shall be a stated rate of annual interest upon the sum desired, payable in periodical installments; such bids shall be the interest to be paid during the whole period of the loan or advance. ’’ This' provision of this statute was first enacted in 1895, Laws of 1895, page 105, section 7. It is evident that the rate of interest which may be fixed by competitive bidding may be larger than the lawful rate of eight per' cent and not be usurious because section 3391, Revised Statutes 1909, provides: “No premium, fines
When the statute allowed only a premium to be fixed by competitive bidding in addition to the lawful
It is proper to add, however, that the safeguard against oppressive or extortionate rates of interest, premium, or fines, is found in section 3391, supra,
The result is that the cause will be affirmed.