Moore v. Southern Mutual B. & L. Ass'n

50 S.C. 89 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

These two cases being practically identical, so far as the facts are concerned, were heard and will be considered together. The complaints set forth fully the facts out of which the controversies arise, and as it is stated in the “Case” that such facts were substantially proved on the trial, the allegations of the complaints will be taken as true. For a full understanding of these facts, one of the complaints should be incorporated in the report of the case. It will, therefore, be sufficient to state here, in general terms, that these actions were commenced on the 8th of February, 1897, and at the same time attachments were issued against the assets of the association found in this State, and were served upon the defendant, J. Allen Tobin, a resident ^ agent of the association at Barnwell, South Carolina. The object of the action was to recover the withdrawal value of the stock of the plaintiff, as ascertained by a statement furnished by the proper officer of the association, and appended to the complaint, under the provisions of the by-laws, set forth in the complaint, which was duly complied with. It is stated in the “Case” that after the commencement of- the action, to wit: on the 12th of February, 1897, a temporary receiver of the defendant association was appointed, and subsequently, to wit: on the 8th of March, 1897, the defendant, J. Allen Tobin, was appointed permanent receiver of said association, and by an order of the Court of Common Pleas for Barnwell County he was required to intervene and defend these actions. In accordance with this order, the said receiver filed his answer in both of the cases, in which he denied all the allegations contained in the complaints. Aftqr the plaintiffs had proved stibstantially the allegations of their complaints, the said defendant moved for a nonsuit, upon the ground that the plaintiffs, being stockholders in the said association, could not maintain these actions against the association of which they were members; contending that the mere fact that these plaintiffs had surrendered their certificates of stock and demanded the withdrawal value of their stock in money, as allowed by the by-laws of the association, did not change the relations of the parties to that of debtor and creditor, but that the plaintiffs still remain members and stockholders of said association.

The motions for nonsuit were refused by his Honor, Judge Townsend, and the cases were presented to the jury, who-found verdicts in each of the cases for the withdrawal value of the stock of the plaintiffs respectively, and judgménts having been entered in accordance with these verdicts, defendants appealed upon the following grounds: “1. Because his Honor erred in refusing defendant’s motion for a nonsuit, as it is respectfully submitted that the same should have been sustained or granted, as it appeared from the evidence of the plaintiff that he was a stockholder of the defendant association, and as such could not maintain this action. 2. Because the relation of debtor and creditor was not established between the plaintiffs and defendant association by reason of the fact that he had surrendered his stock and given notice of sixty days to take the withdrawal thereof in cash.”

It seems to us clear that the view taken by the Circuit Judge was strictly in conformity with the contract of the parties as set forth in the eomplaint, the allegations of which are admitted to be true; and that any other view would make the contract a mere delusion and a fraud. This view is fully supported by the authorities cited by respondent’s counsel, only one of which it is deemed necessary to reproduce here. In 2 Am. & Eng. Enc. of Eaw, 1st edition, at page 625, we find the following language: “Acceptance of notice of withdrawal terminates membership in the association; the member at once assumes the position of a creditor, and may recover the amount due in assumpsit, but the judgment and the execution will be controlled by the Court as justice and right may require.”

The position taken by counsel for appellant, that the plaintiffs still remain stockholders until their certificates were actually cancelled, is manifestly untenable. After the plaintiffs had done all that they were required to do to entitle them to claim the withdrawal value of their stock, the association certainly could not be allowed to defeat such claim by delaying or refusing to formally cancel the certificates of stock.

The judgment of this Court is, that the judgment of the Circuit Court in each of the cases mentioned in the title of this opinion be affirmed.