National Equitable Soc. v. Carpenter

• Decision Date: 13 February 1916
• Docket Number: (No. 1559.)
• Citation: 184 S.W. 585
• Parties: NATIONAL EQUITABLE SOC. OF BELTON v. CARPENTER.
• Court: Texas Court of Appeals

184 S.W. 585

NATIONAL EQUITABLE SOC. OF BELTON v. CARPENTER.

(No. 1559.)

Court of Civil Appeals of Texas. Texarkana.

February 13, 1916.

On Motion for Rehearing, February 24, 1916.

Appeal from Bowie County Court; Lee Tidwell, Judge.

Suit by J. W. Carpenter against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

The suit was by appellee against appellant. It was to recover back $110 paid by the former to the latter for and on one of its "loan contracts," and was commenced in a justice court. As grounds for the recovery he sought, appellee alleged as follows:

"That defendant is a corporation under the laws of the state of Texas, and on the 26th day of February, A. D. 1913, was pretending to make loans, for the purpose of improving and building homes, to persons desirous of borrowing money for that purpose upon real estate security. That said defendant on or about said date and in Bowie county, Texas, by its duly authorized agents, fraudulently procured and induced plaintiff to subscribe for one of its contracts and then and there stating and representing to plaintiff that if he would pay to the defendant the sum of one hundred ten and no/100 dollars, that defendant would immediately, as soon as plaintiffs presented it with an abstract of title to certain real estate, make a loan of the sum of one thousand dollars to plaintiff at 6 per cent. interest per annum, and that plaintiff, relying upon said statement and representation so made to him by defendant, paid to said defendant the sum of one hundred ten and no/100 dollars and thereafter within ninety days made application to the said defendant and offered to the said defendant an abstract of the title to the real estate upon which the loan was to be made and which would be acceptable to the defendant, and upon which he applied for the loan in the sum of one thousand dollars; that said statements so made in Bowie county, Texas, were fraudulent and untrue, and made for the purpose of procuring and inducing the plaintiff to pay to the defendant the said sum of one hundred ten and no/100 dollars, and without any intention on the part of the defendant to make the said loan, or any other loan; and that since said date and time defendant has refused to make any loan whatever, and refuses to repay plaintiff said sum of money, but has appropriated same to its own use to plaintiff's damage in the sum of one hundred ten and no/100, with interest from the 26th day of February, 1913, for which he prays judgment and for costs of suit."

In the county court, to which an appeal was prosecuted, judgment was rendered in appellee's favor for the sum he sued for. This appeal is from that judgment.

It appears from the record that appellee applied to appellant for a "loan contract," through and at the instance of one King, appellant's agent, to whom he at the time paid $10 as the price thereof. The application was in writing, and was as follows:

"Application for a Contract of National Equitable Society of Belton (Incorporated) Belton, Texas.

"I, J. W. Carpenter, being of legal age, hereby apply for one of your contracts for the amount of $1,000 in accordance with the plans of the society as set out in said contract, and have paid Mr. King & Mathews, a solicitor (whose authority, I understand, extends only to the sales of contracts issued by the society under their printed covenants and requirements), $10 as purchase price for same, and I agree to pay the society hereafter, without notice, a monthly installment of dues on said contract of $1,000 on or before the 15th day of each month following the date hereof, until the contract issued hereon is surrendered for a paid-up certificate of deposit, or cash surrender value, or on account of a regular loan being granted, or until said contract is fully paid according to its printed covenants and requirements.

"I have examined the plans of the society and have read a printed copy of your contract and am familiar with and understand and accept all the covenants and requirements of said contract, and I make this application expressly and solely upon the terms and conditions of this application, and the covenants and requirements of said contract issued by the society, and not upon the faith of any statements, promise, undertaking or guarantee on the part of said solicitor or any other person, and it is hereby expressly agreed that this application without being corporeally attached thereto shall be a part of the contract issued hereon and every condition hereof and statement herein is as binding as if corporeally attached to or incorporated in said contract.

"In witness whereof, I hereunto subscribe my name this 21st day of February, 1913.

                        "Signature, J. W. Carpenter
                        "Street Address, 1403 Olive Street
                        "City, Texarkana; State of Texas."
                

Appellant thereupon delivered to appellee, and he accepted as a compliance with his application as shown by his indorsement thereon, appellant's obligation as follows:

"Contract.

"National Equitable Society of Belton, hereinafter styled `the society,' for and in consideration of the sum of $10.00, being the purchase price hereof, in hand paid by J. W. Carpenter, hereinafter called `the holder hereof,' of Texarkana, Texas, the receipt of which is hereby acknowledged, and the payment by the holder hereof of $10.00 monthly, in advance on the 15th day of each month consecutively, for the term hereof, does hereby with said holder hereof and his heirs, executors, administrators and assigns, subject to the terms of the written application herefor, and the covenants and requirements hereto attached, both of which application and said attached covenants and requirements are expressly made a part hereof, and as fully incorporated herein as if set forth completely above the ensuing signatures, agree and bind itself:

"(1) That from each payment, except the purchase price and the first two made hereon, the society will deposit to the credit of the loan reserve fund, with a state or National Bank, designated by the society as a depository, 85 per cent. thereof, with all fees and fines, to be held by said bank and paid out by it for the purpose only of making loans or settlements on contracts, as and when the society may direct; and that from said loan reserve funds, all prior claims thereon having been satisfied, the society, whenever the accumulation is sufficient, will lend the holder hereof, at the rate of interest hereinafter provided, and repayable in the manner and form, and as and when, as hereinafter stipulated, the sum of $1,000.00, only on lawful, good and sufficient real estate security, legally mortgageable by the said the holder hereof for said loan: Provided, that prior to the making of said loan said the holder hereof shall have made at least 10 of the hereinabove stipulated monthly payments, which may be done in advance if desired by said the holder hereof.

"(2) When ten of the...