Archer v. Baltimore Bldg. & Loan Ass'n

Citation30 S.E. 241,45 W.Va. 37
PartiesARCHER v. BALTIMORE BUILDING & LOAN ASS'N et al.
Decision Date20 April 1898
CourtSupreme Court of West Virginia

Submitted Febuary 11, 1898

Syllabus by the Court.

1. Foreign building associations legally doing business in this state have the same rights, powers, and privileges, and are subject to the same regulations, restrictions, and liabilities, as domestic associations.

2. Building associations are authorized to adopt by-laws fixing a minimum premium at which to award loans to their members such premiums to be deducted from the loans in advance or paid in periodical installments.

3. Section 26, c. 54, Code, in so far as it exempts building associations from the operation of the general law in relation to usury, is not unconstitutional.

Appeal from circuit court. Wood county; A. I. Boreman, Judge.

Bill by Elvira B. Archer against the Baltimore Building & Loan Association and others. From a decree for plaintiff defendants appeal. Reversed.

J. G McClure, Okey Johnson, Feilder C. Slingluff, and T. J Piggott, for appellants.

V. B. Archer, for appellee.

DENT J.

The appellee in this case, Elvira B. Archer, was a member of the appellant Baltimore Building & Loan Association, holding 50 shares of stock, of the par value of $5,000. She borrowed on said shares the full par value thereof, to wit, $5,000, which she received in cash, and to secure the same executed her bond and a deed of trust on certain property, enforceable on her failure to pay the premiums, interest, dues, and other charges according to the by-laws of the association. Appellee paid into the treasury of the association at various times the sum of $450, but neglected all further payments as provided in the by-laws, when, her rights becoming forfeited, the trustee was directed to make sale of the property given in security. At this time the association claimed the amount due to be $5,444.82, while the appellee insisted the true amount to be $5,025, and obtained an injunction to restrain the sale until the true amount of the indebtedness was ascertained and determined. After the pleadings were made up, the circuit court referred the case to a commissioner to ascertain the true amount due. He reported it to be $5,162.81. The appellant excepted, but the court overruled the exception, and entered a decree confirming the report, perpetuating the injunction as to the residue of appellant's claim, and decreeing a sale of the property on nonpayment of the sum reported. From this an appeal was taken, and many errors assigned, all of which have been more elaborately argued than the real controversy, as disclosed by the record, deserves. The appellee assigns no errors, but merely asks for an affirmance of the decree. To prevail in this court, the appellant must show error to its prejudice, which is a complete answer to most, if not all, of the assignments presented and argued. The exceptions to the commissioner's report present the only questions necessary for the consideration of this court, and these are only two in number:

1. Did the commissioner err in not compounding the interest monthly because payable monthly? This is not insisted on in the argument, but the commissioner's report is apparently conceded to be correct in so far as it relates thereto. It is certainly in accordance with the law of this state. While the interest was payable monthly, it could not be compounded on failure of payment. Genin v. Ingersoll, 11 W.Va. 549; Craig c. McCulloch, 20 W.Va. 148; Stansbury's Adm'r v. Stansbury, 24 W.Va. 634; Reger v. O'Neal, 33 W.Va. 159, 10 S.E. 375.

2. Did the commissioner err in not charging Mrs. Archer premium at the rate of 50 cents per share per month? And this is the sole matter of importance presented for our consideration. The first payment of premium was allowed the association, and for which Mrs. Archer was not given credit on the sum due. All other premium charges were disallowed, not apparently because they were contrary to law, but for the reason that they were not authorized by the by-law of the association in relation thereto. The by-law in relation thereto is as follows, to wit:

"Section 1. The funds of this corporation which belong to the loan fund shall be loaned to the member paying fifty cents per share premium therefor, in addition to the stipulated six per cent. per annum interest, upon such terms and security as the board of directors may from time to time approve."

Admitting the contract of Mrs. Archer to be a Maryland contract, because it is to be performed in the city of Baltimore, at the chief office of the association, which appears to be the general trend of modern decisions on the subject, yet the legislature has the right to provide the limitations under which foreign corporations may do business in this state, and by section 30, c. 54, Code, it has provided that "any corporation duly incorporated by the laws of any state or territory of the United States or of the District of Columbia or of any foreign country, may, unless it be otherwise expressly provided, hold property and transact business in this state upon complying with the requirements of this section and not otherwise. Such corporations so complying shall have the same rights, powers and privileges, and be subject to the same regulations restrictions and liabilities, that are conferred and imposed by this and the fifty-second and fifty-third chapter of this Code, and by chapter 20 of the acts of 1885 on corporations chartered under the laws of this state." The purpose of the law was to put foreign and domestic corporations on an equality in so far as they each transacted business in this state. To enjoy the privilege of doing business here, every foreign building association must conform to the requirements, and comply with the restrictions, imposed on domestic associations. Section 26 of chapter 54 provides that "every such association shall have the power to provide by its by-laws for selling to the stockholders, who shall bid the highest premium therefor, the money in the treasury, or in default of bidders at or above a minimum premium, may...

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