Coppes v. Union National Savings & Loan Association
| Decision Date | 28 January 1904 |
| Docket Number | 4,424 |
| Citation | 69 N.E. 702,33 Ind.App. 367 |
| Court | Indiana Appellate Court |
| Parties | COPPES ET AL. v. UNION NATIONAL SAVINGS & LOAN ASSOCIATION |
Rehearing denied March 30, 1904.
Transfer denied June 23, 1904.
From Elkhart Circuit Court; Joseph D. Ferrall, Judge.
Action by Samuel D. Coppes and others against the Union National Savings & Loan Association of Indianapolis. From a judgment for defendant, plaintiffs appeal.
Reversed.
J. S Dodge and J. S. Dodge, Jr., for appellants.
R. W. McBride and C. S. Denny, for appellee.
The complaint of the appellants contained two paragraphs. In the first they sought to have their mortgage to the appellee on certain real estate declared satisfied, and to have satisfaction entered on the record thereof; it being alleged that they had fully paid and satisfied their promissory note for $ 6,000 secured thereby, and that the appellee, having been requested to enter satisfaction, had refused to do so; the note and mortgage having been executed October 29, 1894. In the second paragraph it was sought to recover a penalty for the refusal to enter satisfaction, and to recover attorney's fees, and to obtain an order for the entry of satisfaction. The appellee answered by a denial, and filed a cross-complaint against appellants and others for the recovery of the balance due the appellee, and the foreclosure of the mortgage.
The appellant has assigned as error that the cross-complaint does not state facts sufficient to constitute a cause of action. The sufficiency of a cross-complaint, as well as that of a complaint, may be thus tested for the first time on appeal. Loeb v. Tinkler, 124 Ind. 331, 24 N.E. 235; Elliott, App. Proc., § 478; Ewbank's Manual, § 38.
The only objection suggested to the cross-complaint is that the certificate of stock in the association, pledged by the borrowing members as security for the loan from the association evidenced by the note and mortgage, was not set out in the pleading, or exhibited with it. The stock certificate was not the basis, in whole or in part, of the cause of action, being a collateral security for the payment of the loan, and it would not have served any useful purpose to set it out or to make it an exhibit. Indiana, etc., Assn. v. Plank, 152 Ind. 197, 52 N.E. 991.
Furthermore, the want of a copy even of a written contract on which the action is founded is a defect in the complaint or cross-complaint based thereon, which is cured by the verdict or the finding of the court, the writing being deemed to have been supplied by the evidence; and such defect can not be reached for the first time by an assignment of error on appeal. Owen School Tp. v. Hay, 107 Ind. 351, 8 N.E. 220; Cummings v. Girton, 19 Ind.App. 248, 49 N.E. 360; Fidelity, etc., Assn. v. McDaniel, 25 Ind.App. 608, 57 N.E. 645; State Bldg., etc., Assn. v. Brackin, 27 Ind.App. 677, 62 N.E. 91.
The court trying the cause found in favor of the appellee in the sum of $ 2,651.40, and rendered judgment accordingly, foreclosing the mortgage. A motion of the appellants for a new trial was overruled. The note, by its terms, provided that it should be "payable when the stock we own in said association, on account of which the loan is made, matures, * * * and until said stock does mature we agree to pay the appellee the sum of $ 97.40 per month, payable on or before the last Saturday of each and every month, the said sum being interest and dues in accordance with the by-laws of said association." It was shown on the trial that at the date of the execution of the mortgage the appellants paid the appellee the sum of $ 135, called "three months advance dues of $ 45 each." It was also shown that the appellants had paid the appellee, before the commencement of this suit, $ 75 and all monthly payments of $ 97.40 each, on account of the note and mortgage, and had paid all insurance and taxes under the terms of the mortgage and by-laws, and had paid the appellee all moneys that had been demanded of them by the appellee on or before December 29, 1900, which the appellants were notified by the appellee to pay on or before that date, and that the appellants had paid nothing on account of the loan since that date. The appellants paid the appellee $ 60 as membership fee, and received from the appellee $ 6,000.
The stock certificate was for sixty shares, the "monthly payments" thereby provided for being seventy-five cents on each share, which the holder agreed to pay each month until the maturity of the stock; it being provided therein that upon performance of its conditions the appellee should pay the holder, his heirs, etc., $ 100 for each share, "whenever the amount in the loan fund to the credit of any shares from monthly payments and profits equals $ 100." The appellants made no payments on the loan except the monthly payments of $ 97.40, outside of the membership fee and the three months' dues in advance.
In the by-laws it was provided that no member could be entitled to file an application for a loan until he or she had paid, or caused to be paid, three monthly installments. Section three of article eighteen of the by-laws was as follows: "To ascertain the amount of dues payable by a shareholder when he becomes a borrower, deduct the admission fee and three months' dues, paid in advance, from the amount borrowed, and divide the result into seventy-five equal monthly payments, with interest at the rate of four per cent. per annum." It was provided in the by-laws that any person might become a member of the association and subscribe for shares by making application subject to the by-laws, and paying a membership fee of $ 1 per share. "Monthly payments, or installments, are seventy-five cents on each $ 100 share." ...
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