Daily v. Saginaw Building & Loan Ass'n

• Decision Date: 15 June 1903
• Parties: DAILY et ux. v. SAGINAW BUILDING & LOAN ASS'N et al.
• Court: Michigan Supreme Court

95 N.W. 326

133 Mich. 403

DAILY et ux. v. SAGINAW BUILDING & LOAN ASS'N et al.

Supreme Court of Michigan

June 15, 1903

Appeal from Circuit Court, Saginaw County, in Chancery; Emmet L Beach, Judge.

Bill by George W. Daily and wife against the Saginaw Building & Loan Association. Decree for defendant, and complainants appeal. Affirmed.

George C. Ryan (Eugene A. Snow, of counsel), for appellants.

Nathan S. Wood, for appellee.

MONTGOMERY J.

This is a bill in the nature of a bill of review. The original bill was a foreclosure bill, and was filed on November 3, 1894. There was personal service. The Dailys appeared by their solicitor, Mr. Emerick. There was a waiver of service of further notices, and decree was entered in the sum of $3,041.52 and costs, and a sale was advertised, under the decree, for December 21, 1895. Mr. Daily was present, and asked for and procured an adjournment to December 26th, when a sale of the property was made for $3,000, and a deficiency of $304.21 reported. The building association took possession soon after the sale. Four years after this sale was made complainants Daily discovered receipts for money paid to the association aggregating $185, which appeared not to have been credited to the Dailys in the foreclosure proceeding. Negotiations were had between themselves, represented by their attorney, and the association, and in November, 1899 nearly four years after the sale, the amount represented by these receipts, with an agreed rate of interest, was paid to Daily; and a receipt was given, reciting that it was in satisfaction of any and every claim of every kind and character against said association. The present bill of complaint was filed in February, 1902, more than two years after this settlement, and more than six years after the decree. The bill sets up the claim that in making the original loan of the association a minimum premium was fixed by the association of 25 per cent., and that the Dailys' bid was 30 per cent. on the loan. They also set up the claim that they had not received credit for the $185, and did not discover this error until 1899, but it is conceded that the matter was then adjusted, and the money repaid them. They also claim that other payments were made, of which no credit was given, and seek to prove this by entries in books in their own possession, and claim that certain fines imposed were improper.

The evidence discloses that there was a by-law fixing a minimum premium of 25 per cent.; but it also appears that the several loans in which complainants are interested were made after competitive bidding, and that the premiums bid, and upon which the loans were awarded, were 30 and 31 per cent. It further appears that all loans made up to the time that complainants' loans were effected were made upon competitive bidding, and at a per cent. considerably above the minimum fixed by the rules. Under these circumstances, it cannot be said that the rule worked any damage to the complainants. The benefit of free and competitive bidding was had, the same as though no fixed minimum premium had been adopted. While the authorities are not numerous upon the question, a well-reasoned case (Orangeville Mut. Savings Fund & Loan Ass'n v. Young) is reported in 9 Wkly. Notes Cas. p. 251. See, also Albright v. Building & Loan Association, 102 Pa. 411, 424; Endlich on Building Associations, � 411.

The bill also sets up a claim that, in the exchange of property between the defendant Mary G. Lewis and complainants, a loan had been effected upon the property exchanged by Mrs. Lewis with complainants of $400, and that this was concealed from complainants, and that the defendant association was a party to the fraud which was perpetrated upon complainants by such concealment. This is a serious charge, which presents a question of fact, and complainants' claim is supported solely by the...