U. S. Building & Loan Ass'n Assignee v. U. S. Building & Loan Ass'n

56 S.W. 422, 108 Ky. 330, 1900 Ky. LEXIS 45

• Court: Court of Appeals of Kentucky
• Decided: April 18, 1900
• Status: Published

Opinion

Opinion op the court by

CHIEF JUSTICE HAZELRIGG

Affirming.

Tbe appellee Paul was the owner of fifteen shares of stock in the Fnited States Building & Loan Association, and on October 10, 1892, borrowed from the association the sum of $1,500, pledging the stock as collateral, and executing a mortgage on certain real estate to secure the loan. After making some thirty-four monthly payments, of $15 each, as interest and premiums, she on July 12, 1895, paid off the loan, and procured the release of her stock and mortgage by paying the association the sum of $1,500 in cash. She then continued to pay the dues on her stock until July 6, 1896, when she withdrew its book value, receiving therefor the sum of $497.65. It appears that she had paid in as dues the' sum of $425. On July 11, 1896, she brought suit against the association for usury growing out of the foregoing transactions, and in November, 1898, recovered judgment for $284. In the meantime, and before the judgment was obtained, the association ha,d ceased to be a going concern, by reason of its inability to meet its obligations to its stockholders, and its affairs had been placed in the hands of an assignee. The assignee brought his suit for a settlement of the trust, and in this suit the appellee Paul has filed her judgment, claiming payment in full. The chancellor so adjudged, and the assignee has appealed.

'What defense was interposed in the suit for the usury, we are not informed in this record. We do know, however, that, to the extent that the plaintiff ,Paul had not been charged with her proportionate share of the expenses- and losses of the concern up to the date of her withdrawal, she might have been made liable for in the usury suit, and the claim for usury have been lessened to that extent, or have been defeated entirely if such share were greater than the usury. This liability was a primary and independent liability growing out of the shareholder’s relation to the corporation or partnership, and would have been in the nature of a set-off. The association did not have to plead it, or be estopped thereafter from doing so. It might have allowed the suit to proceed to judgment in order to fix the amount due on the usury, claim. When the judgment was filed, and payment demanded of the as-signee, he might then have asserted a claim for contribution on the part of the stockholder, growing out of her liability for expenses and losses accruing prior to the member’s withdrawal. This has not been done with any degree of certainty. In effect, the answer merely says that the association paid out to Paul too much on her stock, under the belief that the concern was solvent and able to continue its buisness. In Association v. Denton (Ky.) 50 S. W. 53., it was-held that, to recover against'a member on account of his liability for expense and loss, there must be made a full exhibit of the expense and loss account in detail. No effort was made here to do this. What we have said applies with equal force to the Brehme appeal, heard with the Paul case. The judgments in each case are affirmed.