35 Md. 73 | Md. | 1872
delivered the opinion of the Court.
By the agreement of the parties in this case, it is admitted that the appellee is a corporation, under the Act of 1868, ch. 471, and lias, for one of its objects, the advance and loan of money or credits upon any property, real, personal or mixed, and that the copy of the by-laws filed, may be used as evidence in the case; that the appellant received from the corporation the sum of $6,000 on his fifteen shares of its stock, re-payable in weekly instalments, including principal, interest and premium of $33.75 each; that the appellant failed to pay the instalment, due on Monday, the 19th of December, 1870; that he tendered the amount on the succeeding day, but the secretary refused to receive it, unless he would also pay the fine then claimed to be due, to wit: $3.37 ; that the appellant tendered, on each succeeding Monday, up to the date of the decree in the cause, the amount of the accrued and accruing instalments as named in the mortgage, but refused to pay the fines claimed to be due by the appellee, and the appellee refused to accept the instalments without the fines.
The following by-laws are applicable — By-Law, Art. 13, sec. 6: If any member, having received a loan, shall fail to
Art. 23, sec. 3 — If any person shall neglect, omit or refuse to pay his weekly dues at the time required hereby, he shall be fined ten cents weekly for each and every dollar remaining unpaid.
The agreement waives all other questions except those relating to the right to recover the fines charged. The single fine, for the non-payment of the weekly dues, it seems, was $3.37-|, and the appellee claims for fourteen fines, amounting to- $47.25. Under these circumstances, the only question to be determined, is the right of the appellee to recover the fines claimed.
Assuming authority to exist in the corporation to make the loan in question upon the terms stipulated, and the power to provide such by-laws, and that the appellant, by his failure punctually to pay the weekly dues on Monday, the 19th of December, 1870, did subject himself to the penalty provided in the by-law, Art. 23, sec. 3 — to wit: the fine of $3.37J, we do not perceive any ground for the infliction of the other fines because he did not pay this one.
If the appellant, regularly afterwards, tendered the weekly dues, including that omitted and the others, the refusal to pay the fine incurred did not subject him to the additional fines on that account;
The fine imposed was the penalty provided for the failure to pay his weekly dues accruing on the 19th December, 1870, and because that was not paid, gave no right to the appellee to subject the appellant to an additional weekly fine, because of such non-payment. The fine incurred did not become a part of his weekly dues embraced by the by-law, but was a distinct and independent liability, which by-law, Art. 13, sec. 6, provided, if not paid in ninety days, the Company might compel payment thereof by the sale of the mortgaged property, according to the purport of that provision.
The tender of the accrued and accruing weekly instalments, protected the appellant against any additional fines, whilst his neglect or refusal to pay the incurred fine might subject him to the provisions of by-law, Art. 13, sec. 6.
The by-law, Art. 23, sec: 3, expressly provides for the nonpayment of weekly dues — that is the proportion of the principal, the interest and the premium, and the forfeiture of ten cents weekly, for each and every dollar remaining unpaid.
If the fine incurred became part of the weekly dues, then ten cents per dollar might as well be claimed on that additional sum. We find no warrant for such construction of the by-laws of the Company. In no event, under the facts admitted, can the appellant be held accountable but for the failure to meet the weekly dues on the 19th of December, 1870.
Under the by-laws, he rendered himself liable to pay the fine of ten cents per dollar on his weekly dues, amounting to $3.37½
Tender having been made by the appellant of all the instalments, and nothing remaining due except the fine aforesaid, a Court of Equity can give no relief for a matter belowr its jurisdiction. Code, Art. 16, sec,. 78. A majority of the Court think the order below ought to be reversed.
Order reversed*
