Daley v. People's Bldg., Loan & Sav. Ass'n
| Decision Date | 26 February 1901 |
| Citation | 178 Mass. 13,59 N.E. 452 |
| Parties | DALEY v. PEOPLE'S BUILDING, LOAN & SAVINGS ASS'N. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. W. Cummings and C. R. Cummings, for plaintiff.
C. M Elliott, for defendant.
This is an action by a member of the defendant corporation, counting first for $1,000 upon the covenant contained in his certificate of membership, and secondly on an account annexed, which is for the money paid by the plaintiff for and under the certificate. The first count was disposed of by the decision reported in 172 Mass. 533, 52 N.E. 1090. The right to recover on the second now is argued on the footing that the defendant declared a forfeiture of the plaintiff's stock without right, and that therefore the plaintiff at his election may treat the contract as repudiated and annihilated as if from the beginning, and may recover the consideration which he has paid. The case comes here by report after a ruling that the plaintiff could not recover. The first count being on the contract and the second being on a supposed right which depends on the annihilation of the contract at the plaintiff's election, it is a little hard to see how the plaintiff can press the second after having gone to trial and done his best to recover upon the first. Whiteside v. Brawley, 152 Mass. 133, 135 24 N.E. 1088. But we will pass to the other considerations in the case.
The report states that 'no question arises as to the pleadings.' We should suppose this to mean that the ruling of the court was on the substance of the case and not upon any question of form. We hardly should take it to open an argument that the plaintiff had a cause of action for the withdrawal value of his certificate, a matter quite different from the subject of either of the counts. That would be a claim under the contract of a different nature from the one set up in the first count, and of course it would be different also from the claim in the second count. The plaintiff did not attempt to make out a case of that new kind, and it is questionable whether if he did he could succeed. After being informed that the amount standing to the credit of his certificate was $690.38, he had written in a threatening tone a letter which implied that he insisted on being paid a thousand dollars. A conciliatory reply stated that if he desired the withdrawal value of his certificate the defendant would send a withdrawal blank. The plaintiff answered, it is true, that he desired the withdrawal value of his certificate, but the letter indicated pretty plainly that he meant by this the whole thousand dollars. His conduct showed that that was what he intended to get. The application returned to him was not signed, and he said nothing for nearly a year, when again he pressed for a thousand dollars. Whether he ever did anything sufficient to indicate that he wanted the withdrawal value we need not consider further.
We find it still more difficult to see how the plaintiff can recover as upon a rescission. The plaintiff says that the defendant was wrong in supposing that his stock was forfeited. The plaintiff made default in a monthly payment due on the last Saturday of January, the 26th. A notice was published on July 11th to all stockholders 'who are in default for six months or more in the payment of dues,' etc., to pay in 60 days under penalty of forfeiture. Without considering what could be said on the other side, we assume that the notice was a condition of the power to forfeit, that it did not hit the plaintiff as his default was a few days less than six months before July 11th, and that the defendant was wrong. But all that the defendant did was to notify the plaintiff that his stock was forfeited, seemingly under a bona fide belief that he fell within the class described in the notice. It would be straining the facts and the law to say that this imported a refusal, before any demand, to pay any sum under the policy even if the defendant's mistake should be pointed out, and that therefore it was a repudiation.
A mere refusal to pay money when due, especially a refusal based upon the terms of the contract and in good faith although mistakenly believed to be justified by it, is not a repudiation of the contract and does not warrant a rescission. The only remedy is a suit upon the contract, not a suit for the consideration. This is clearly the law in the case of a failure to pay the price after a sale and delivery of goods. Martindale v. Smith, 1 Q. B. 389. The law would seem to be even clearer when, as here, the plaintiff has had the rights of membership in the defendant company for five years, not to speak of his having elected to insist upon...
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