106 Ky. 186 | Ky. Ct. App. | 1899
delivered ti-ie opinion of the court.
In March, 1888, appellee borrowed from appellant, a building and loan association, the sum of $600; and, after paying divers sums, was adjudged, at the suit of the .association, to owe a balance on his indebtedness of $145.47, as of May 25, 1897. A judgment of sale to satisfy this sum was accordingly entered, and the question of further indebtedness was reserved by the lower court for future decision. Subsequently the plaintiff filed what is termed a “second amended petition,” and in this the terms of the contract of loan were, in effect, ignored or abandoned, and the account of the appellee, beginning at the date of his loan, and embracing all his payments, of whatever character, is so recast as to show a balance due the association of $290, less the sum of $145.47, for which judgment has already been entered. The appellant’s plan of thus recasting the account consists in charging appellee with the amount of his loan, with legal interest until the end of a year. Then the payments made during the year, with interest thereon for the average time, are ascertained and lessened by what is termed “expense rate per share.” This last result, taken from the principal and interest, gives a new principal; and so on for each year. On final hearing the court held that its former judgment gave all the relief to wliich the plaintiff was entitled, and dismissed the action. The association appeals, and brings
We are to assume that the court below, on a proper state of pleading, gave judgment for the plaintiff’s debt, with legal interest, less all payments made by him, whether as dues, interest or premium. And this principle seems not to be combatted, as far as it goes; but it is contended by the association that the court refused to render judgment for any fines against the delinquent member, or any expenses or losses incurred by it whilst he was a member.
As to the fines, there is nothing to show what was done with respect thereto by the court below, and we need not consider this subject further.
On the other branch of the case an interesting question is presented. It has been said by this court in several of the cases that a member of these associations is liable for his pro rata share of the expenses of maintaining the organization, notwithstanding which no association has ever sought directly a recovery against its delinquent member on account of his liability on this behalf, except incidentally in the Eckler case (recently decided), [50 S. W., 50], and in the present case. It may be that in such cases, if an exhibit were made on the one hand of the member’s share of profits in the partnership, and on the other of his share of expenses and losses, there would be nothing coming to the association on the account. This assumption, however, may be erroneous. If so, and it can be made to appear that the profits or dividends distributable to a delinquent borrowing member’s stock are not sufficient to cover his proportionate share of expenses and losses in running the concern, then we are prepared to say what we have often said, that the delinquent mem