Johnson v. National Building & Loan Ass'n

125 Ala. 465

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

DOWDELL, J.

The appellee here, respondent in the court below, is a domestic corporation organized under the general law of this State authorizing the incorporation of building and loan associations. The appellant is a member of said respondent and as such a borrowing stockholder. As shown by the bill, the appellant became a member and stockholder in said corporation in April, 1893, by subscribing for two hundred shares of the stock, of the par or face value of fifty dollars per share, on what is called and known as the installment plan. In May following, he obtained a loan of ten thousand dollars from the respondent company, and to secure the same he gave a mortgage on certain real estate described in the mortgage and also pledged as collateral his two hundred shares of stock. This mortgage is made an exhibit to the bill and contains the conditions and terms of contract of the loan. There is no dispute as to the amount of the loan, nor as to payment or credits on the «ame — except that it is claimed by the complainant that the payments made by bim as a stockholder for dues and premiums, should be applied as payments on. the loan, and go in discharge of the mortgage debt. Neither is. there any dispute as-to the amounts paid by the complainant by way of such dues and premiums,, and interest on the loan. It is alleged in the bill that the complainant began his negotiation for the loan concurrent with his becoming a member of and stockholder in- the respondent company. The purpose of the bill is to avoid, the contract of complainant with respondent company as a member and stockholder and to have all payments-made by him, as such stockholder, to the company, applied to the mortgage debt.

It is charged in the bill that the respondent association has issued six thousand shares of its stock, known: as paid up stock, and that in so doing if acted without the scope of its powers and transcended the legitimate-bounds of its creation, and that the same was an act ultra vires the corporation. The by-laws of the association are made an exhibit to the bill, and by them it appears that the plan for the issuance of paid up stock as described in the bill is provided for. ■ It is, however,, contended there is no legislative grant of such power, and in the absence of express -statutory grant, the association is without right to exercise the power.

We have then the question presented, -whether or not the building and loan association can in the absence of express legislative authority exercise the right or power of issuing prepaid or paid up stock, and this involves the-inquiry ns to whether -such right comes within the legitimate scope of the business of a building and loan association.

One of the principal objects of a building and loan-association is to create a loan fund for the benefit of its: borrowing members, and the premiums and interest arising from the loans go to hasten the maturity of its stock. This being true, -and we think there can -be no doubt of the correctness of the proposition, it is obvious that the íssuánce of prepaid' or paid up stock contributes directly to the promotion of the objects and end for which the association is created, and reasonably and fairly comes-within the scope of legitimate business.

While there may be found some authorities tending to. support the contention of appellant, that in the absence-of express legislative grant of power a building and loan-association may not issue paid up stock, yet the weight of authority is to the contrary. In the recent work of Thornton & Black!edge on Building and Loan Associations, section 148, it is said: “It is no uncommon thing, for an association to issue paid up or prepaid stock; by which is meant stock paid for in full when it is issued, just like -stock in an ordinary corporation paid -for in full Avhen issued to the holder. The statute may provide for this, or if it do not, then the association may do so under its general powers to enact by-laws. When issued, it is. in fact matured stock, to be treated just as any other other matured stock. Not infrequently the by-laws of an association provide for a particular kind of prepaid stock by allowing a member holding ordinary or common stock to return his stock after a certain time, and get a new certificate for a less number of shares. In that event the money paid on the old shares is applied to-the new, and no more money is required until the money already paid in is exhausted. Such an agreement is valid. A prepaid shareholder is as much a member, of the association as any other member. If insolvency intervenes, however, a member who holds paid up stock is-not entitled to be classed as a creditor, and thus have preference over the other stockholders.” To the same-effect -are the following authorities: Endlich on B. & L. Associations, (2d ed.) §§ 461-464; Thompson on B. & L. Association, (2d ed.), §§ 130-135; People v. Preston, 140 N. Y. 549; Hohenschell v. Savings Association, 140 Mo. 566 ;s. c. 41 S. W. Rep. 948; s. c. 4 Am. & Eng. Dec. in Equity, 9; State v. Equitable Loan & Investment Co., (Mo.), 41 S. W. Rep, 916; Towle v. Am. Building & Loan Association, 75 Fed. Rep. 938; Latimer v. Equitable Loan & Investment Co., 81 Fed. Rep. 776; Cook v. Eq. B. & L. Asso., (Ga.) 30 S. E. Rep. 911; Leahy v. Nat. B. & L. Asso., (Wis.) 76 N. W. Rep. 625; 4 Am. & Eng. Encye. Law (2d ed.), 1030.

In'a note to the case of Hohenschell v. Savings Association, supra, reported in 4 Am. & Eng. Dec. in Eq. 9, it is said by the annotator, Mr. Stewart: “It seems to .be now settled by the preponderance of authority that a building and loan association, under its general power, may issue, besides the ordinary form of installment .stock, shares which have been either fully or partly prepaid, and stipulate for the payment of a specified dividend thereon, as long as that does not exceed a pro rata, share of the profits, (or possibly, in the ease of full-paid :stock, the legal rate of interest, if the profits should fall below that )as long as the holders of such stock are given no undue advantage over the holders of the ordinary stock: — Murray v. Scott, 9 App. Cas. 519, affirming In Re Guardian Permanent Benefit Bdg. Society, 23 Ch. D. 440, 453; In Re Middlesbrough, R. S. & G. Dist. Permanent Benefit Bdg. Society, 53 L. T. (N. S.) 203; In Re Reliance Permanent Benefit Bdg. Society, 61 L. J. Ch. 453; Latimer v. Equitable Loan & Investment Co., 81 Fed. Rep. 776; State v. Equitable Loan & Investment Co., (Mo.) 41 S. W. Rep. 916; People v. Preston, 140 N. Y. 549; Criswell's Appeal, 100 Pa. 488.”

From the foregoing authorities as .well as from a common sense view, and upon common business principles, we are led to the conclusion, that although there may not be an express legislative grant of power in the charter, 'there being no legislative prohibition, the association under its general powers to enact by-laws may' provide for the sale and issuance of paid up stock.

The complainant bears a dual relation to the defendant company — that of a member or stockholder in said association, and that of a borrower from the same. His contract with the association as a stockholder and member is distinct from that as a borrower. As a member of the association he agrees to pay certain dues and assessments and becomes entitled to certain privileges and 'benefits, and as a borrowing member he obligates him•self to pay the loan obtained with interest and premiums.

. The contract of loan as set out in the mortgage being ■such as the association was authorized by law to make, 'is not usurious. — Montgomery Mutual Bdg. & Loan Association v. Robinson, 69 Ala. 413; Security Loan Association v. Lake, 69 Ala. 456,; Southern B. & L. Asso. v. Anniston etc. Co., 101 Ala. 582; Sheldon v. Birmingham B. & L. Asso. 121 Ala. 278; Hayes v. Southern Home B. & L. Asso., 124 Ala. 663.

It is charged in the hill that in the issuance of the paid up stock, the paid up stockholder is giveh an advantage over the complainant as installment stockholder. 'This becomes then a question of corporate wrong in the abuse of, or improper exercise of, corporate power. If injury results to the shareholder in the abuse of corporate power, .the wrong may be redressed within the corporation, and .the stockholder .cannot maintain a suit against the corporation to redress corporate wrongs, until he has done all in his power .to obtain within the corporation, redress for the wrong complained of, or else shown by his bill a reason for his failure to do so. — Tuscaloosa Manufacturing co. v. Cox, 68 Ala. 71; Merchants & Planters Line v. Waganer, 71 Ala. 581; Roman v. Woolfolk, 98 Ala. 237; Nathan v. Tompkins, 82 Ala. 437; Steiner v. Parsons, 103 Ala. 220; Bridgeport Dev. Co. v. Tritsch, 110 Ala. 274; Decatur Min. & Land Co. v. Palm, 113 Alla. 531.

The present bill is wanting in the necessary averments .■as a bill by a stockholder against the corporation for the ■redress of corporate wrong’s.

Moreover, the plan for the issuance of paid up stock is ■provided for in the by-laws of the respondent company, and so far as the bill shows the very conditions out of which the supposed inequality arises between the two 'classes' of stock, existed when the complainant subscribed for his stock and became a member of the association. For aught that can be known from the bill, the six thousand shares of paid up stock mentioned had already been issued by the association when the complainant subscribed for his stock, and even if it had not been, he had notice that the issuance of paid up stock, and upon the plan that the six thousand shares were actually issued, was provided for and authorized by the by-laws. The complainant with this knowledge became a member of the association as an installment stockholder, prompted as lie says, by a desire to secure a loan of tern thousand dollars of the funds of the association, and. having secured the loan and had the use of the same for the loan period stipulated in the mortgage, he now seeks-through a court of equity to evade the payment of his-debt by having his contract of membership in the association annulled on account >of alleged corporate wrongs, of.' which he had full knowledge when he became a member' and obtained the loan. Independent of the consideration of other questions as to the right of the complainant, as a stockholder to maintain a suit against the corporation to redress corporate wrongs upon a proper bill filed,, these facts do not commend the complainant to a court of equity as one who is entitled to the relief sought by the present bill.

As to the charge of fraud, it is not shown by the bill, in what the alleged false and fraudulent representations consisted, further than it is averred, “that the true consideration of said mortgage was, that complainant was to pay the corporation monthly the sum of $190 per-month for sixty-five months, and at the outside- limit he was to pay only seventy-two months.” This evidently relates to the matter of the maturing of the stock, a matter of opinion or judgment, and so far as is shown by the' bill, equally open to both parties. In Mont. So. R’y. Co. v. Matthews, 77 Ala. 364, it was said by this court, speaking through Stone, C. J.: “An opinion expressed', even if not realized, cannot, without more, -become a fraudulent representation. If, however, such opinion is falsely expressed, with intent to deceive, and does deceive, this constitutes such opinion or representation a false-statement of fact, and vitiates a contract thereby procured, unless the representation relates to a matter-equally -open to both parties. This could not deceive.”' Lake v. Association, 72 Ala. 209; Bradfield v. Elyton Land Co., 93 Ala. 527; Birmingham Warehouse &c. Co. v. Elyton Land Co., 93 Ala. 549; Thompson on B. & L. Asso., p. 17S, note.

Upon the question of an accounting, as we have stated above, there is no dispute as to the amount of the loan nor as to the payments made by the complainant either in liis character as 'borrower or as a stockholder; and it may be added here that there was never any demand and refusal for an accounting so far as the bill shows. We do not think the complainant shows himself entitled to maintain the bill for an accounting under its averments. 1 Ency. PI. & Pr., 98; Association v. Lake, 69 Ala. 456, 465; Hudson v. Vaughan, 57 Ala. 609; Avery v. Ware, 58 Ala. 475; Tecumseh Iron Co. v. Camp, 93 Ala. 572.

Our conclusion is that the bill is without equity, -and the court below committed no error in the decree sustaining the demurrer to the bill, and that ruling must be affirmed. On the cross-appeal from the decree overruling the motion to dismiss the bill for want of equity and to dissolve the injunction, we are of opinion the court erred in overruling the motion and refusing to dissolve the injunction, and this action of the court must be reversed. That the complainant may have an opportunity of meeting the ruling here made in holding the bill in its present shape to be without equity, by amending the same, the cause will be remanded for such opportunity.