24 Ind. App. 654 | Ind. Ct. App. | 1900
Appellant commenced this action in the court below against appellees, seeking to recover upon a bond executed by J ames Silver and Eliza Silver. The bond bears date March 30, 1891, arid is for the sum of $600, with interest at the rate of five per cent., and a premium of five per cent., and ten per cent, attorney’s fees. The complaint avers that on the 7th of April, 1891, appellees, Henry W. Plenderson and Howard M. Henderson, assumed in writing the payment of said bond, and that on the 27th of May, 1892, the appellee Bratton, by written agreement, assumed the payment of said bond. The bond or note sued on is the evidence of a loan made by appellant to James and Eliza Silver, which was secured by a mortgage upon certain real estáte in the city of Lebanon. Appellees, Llenry and Howard Henderson, assumed the payment of the bond when the mortgaged real estate was conveyed to them. Appellee Bratton assumed the payment of the bond when he purchased the mortgaged property from the Hendersons. The bond and the written agreements of assumption made by
The' only alleged error brought to the attention of this court arises from the ruling of the lower court in overruling appellant’s motion for a new trial. The sufficiency of the evidence is the only question presented by the motion for a new trial. The evidence consisted of the bond and the mortgage, the various contracts of assumption evidenced by the deeds made to the different purchasers, and the oral testimony of the secretary of appellant.
[Seal] ■ ' James Silver.
her
[Seal] Eliza (X) Silver.
mark.
Signed and delivered in the presence of Robert W. Roberts.”
The mortgage executed to secure the payment of the bond contained the following provisions: “This mortgage is executed and intended as a security for the performance by the said James Silver and Eliza Silver of certain stipula
The language of the bond and mortgage is plain. Appellee has, according to the uncontradicted evidence, paid to appellant seventy-nine monthly payments of dues and interest and premiums on the six shares of stock issued by appellant. When appellee assumed the obligation of Silvers, he, in effect, became a borrowing member of appellant corporation, and he acquired all the rights said Silvers had under his contract with appellant, and became subject to the powers with which said corporation was invested, whether express or implied. If appellant is bound by the contract entered into with Silver, then, the evidence showing, as it does, a full compliance with the terms of that contract upon
Appellee having fully complied with the terms of the contract, appellant will not be permitted to say the contract was ultra vires. But is this contract in fact ultra vires ? It js a contract by a private corporation. It is not forbidden by any statute, and it is not immoral in itself. In Lime City, etc., Assn. v. Wagner, 122 Ind. 78, the Supreme Court of this State held that a contract in all respects like the one in this case was a valid contract, and that when the borrower had paid the stipulated number of payments mentioned in
Appellant contends that the case of Lime City, etc., Assn. v. Wagner, supra, was criticised and distinguished in the later case of Wohlford v. Citizens, etc., Assn., 140 Ind. 662, 29 L. R. A. 177. We do not attempt to determine whether the two last mentioned cases are conflicting. The first case is cited in the second case as being authority in eases of its class, and to that class this case undoubtedly belongs. The two cases cited and relied upon by appellant, King v. International, etc., Union, 170 Ill. 135, 48 N. E. 677, and Bertche v. Equitable, etc., Co., 147 Mo. 343, 48 S. W. 954, are not controlling for two reasons: Eirst, because they conflict with the decisions of our own courts, and second, they are both based upon statutes which expressly prohibit building associations from entering into contracts like the one in suit. We find no error. Judgment affirmed.