119 Ga. 941 | Ga. | 1904
On the call of the case the defendant moved to continue, on the ground that the plaintiff had been put into the hands of a receiver, who was authorized to intervene in the present suit, supporting the same by certified copies of the order of the circuit courts of the United States in Alabama and Georgia. The defendant, by a plea in abatement, or motion to make parties, might have raised the question as to whether the case could be prosecuted in the name of the plaintiff, or in its name for the use of the receiver, or by the receiver alone. But this could not be done by a motion to continue. The appointment of the receiver did not abate the suit. Branch v. Augusta Glass Works, 95 Ga. 579. There need be no danger of paying to the wrong party. According to Griffin v. Mutual Life Insurance Co., 119 Ga. 664, the defendant by appropriate proceeding may obtain a proper receipt from the one entitled to the money. But here the evidence as to the appointment of a receiver was not offered on the trial, and there is therefore nothing properly in the record to indicate that the company is not in a position to receive and control its own "funds, or to prosecute suits in its own name.
The former record in this case (115 Ga. 400) raised the question as to the validity of the “ fully. paid,” “prepaid,” and “installment ” stock. The verdict then was for the plaintiff, and, except in the admission of interrogatories improperly executed, this court held that “ the principles of law involved in this case have been ruled in favor of the company, and no error appears to have been committed by the trial judge.” The same issue as to the “prepaid” and “installment” stock was again presented by an amended plea, more elaborate in detail but involving the same legal principle. It is almost a case for the application of the doctrine of the “law of the case” or “res ad judicata.’ But, as the two pleas are not identical, we will deal with the errors assigned. The note sued on is dated at Huntsville, Alabama, is made there payable, and according to its terms it is to be construed as an Alabama contract. The plea nowhere alleges that the contract was usurious according to the laws of that State; the record contains no copy of its statute concerning interest and usury; though it may be proper to say that a contract identical in form with that sued on has been held to be valid, in Sou. B. & L. Assn. v. Ector,
Mutual participation in profits and losses is undoubtedly the basic principle on which contracts between this class of associations and its members have been saved from the consequences attaching to other usurious loans. While there has been some doubt expressed as to the right to issue paid-up or preferential-
A mere name can not be used as a cloak under which the law' against usury can be evaded. If the plaintiff is not a building and loan association in fact, it can not, by calling itself such, acquire the privilege of charging more than the lawful rate of interest. But its name prima facie imports that it is such. Smith v. Southern B. & L. A., 111 Ga. 811. The burden was on the de-, fendant to meet this presumption. , .The plea does not nega-* tive the idea that it was chartered as such, nor .does it aver that the defendant did not recéive the benefits to which he was entitled as a member of such during the years he was not in default.
There was no motion for a new trial, but a direct bill of exceptions in which the evidence, objections to evidence, colloquies between counsel, arguments to the court, and his rulings thereon are set out. In addition to the points hereinbefore discussed, the exceptions relate mainly to the admission of testimony by the officers of the company, over the defendant’s objection that this evidence was as to cash, items of payments, and facts knowledge of which must necessarily have been derived from the books, and that the witnesses could not testify from the ledger, but only from the books of original entry. • On the face of the bond the plaintiff promised to pay $2,500 with five per cent, interest and five per cent, premium from July 24, 1895. The other primary evidence, in the shape of the deed, the note, the stock-scrip, and the bylaws, entitled the plaintiff to principal, interest, premiums, and, on default, to fines and attorney’s fees. The defendant’s original answer admitted the date of his default. On this primary evidence therefore the plaintiff was entitled to a verdict, and the burden was on the defendant to make his own proof as to the credits to which he was entitled. It is true that the plaintiff attempted unnecessarily to make this proof for the defendant by the cashier and other officers. If it was secondary, it was harmless, because it caused a reduction in the amount which the plaintiff would otherwise have been entitled to recover. If we concede that the testimony would have been incompetent to debit the defendant, here it was helpful and not harmful, in that it went to establish a credit.
Judgment affirmed.