Detweiler v. Breckenkamp

• Decision Date: 31 October 1884
• Citation: 83 Mo. 45
• Parties: DETWEILER v. BRECKENKAMP, Appellant.
• Court: Missouri Supreme Court

83 Mo. 45

DETWEILER

v.BRECKENKAMP, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Franklin Circuit Court.--HON. A. J. SEAY, Judge.

AFFIRMED.

John R. Martin for appellant.

(1) The petition did not state a cause of action. The statute, G. S. 1865, p. 366, did not authorize the association to enter into the contracts with Pœhler which are declared on in the petition. Field on Corp., sec. 54. (2) The by-laws of the association providing that in case of non-payment of dues for four months, the delinquent shares should be forfeited, were oppressive and unreasonable and therefore void. (3) The by-laws did not authorize the condition in the deed of trust that if default should be made in the payment of interest or monthly dues on the stock, and the same should remain unpaid for four months, then the whole debt should become due and enforcible. (4) There is no evidence in the case which entitled respondent to an assignment of the bonds by reason of the fact that he held a junior incumbrance. (5) The court erred in the finding under the pleadings and evidence that any sum was due respondent on account of the bonds. (6) The court also erred in giving the instruction asked by respondent and in refusing the instructions asked by appellant.

J. C. Kiskaddon for respondent.

A corporation has the power to make any and all contracts necessary to further the purposes for which it is created. When a corporation is given a general power to do a certain business it may adopt all reasonable modes which a natural person might adopt in transacting similar business. Field on Corp. § 246; Bank vs. Patterson, 7 Cranch, 299; Kitchen v. Railroad Co., 59 Mo. 514; Henning vs. U. S. Ins. Co., 47 Mo. 425. This corporation was formed “for the purpose of accumulating a fund to be lent on real estate security, or divided among its members.” It should “lend its funds on real estate security only and upon the terms and condition and in the manner which shall be specified by its by-laws.” Gen. Stat. 1865, p. 366, §§7 and 10. The statute, constitution and by-laws sufficiently provide in general terms for all these matters. The details vary with each individual case. We therefore submit that the corporation had power to make the contract it did make with Pœhler. This corporation, if it had deemed it proper, could have taken negotiable promissory notes as evidence of its loans. Corporations having the right to receive bills and notes, have the implied right to transfer them so as to give title either with or without indorsement. Marvine vs. Hymers, 12 N. Y. 223; Bank vs. Sharp, 6 How. (U. S.) 301; Hardy vs. Merriweather, 14 Ind. 203; McIntyre vs. Preston, 5 Gil. 48; Bank vs. Bank, 3 Kern. (N. Y.) 309. In equity and under our statute every debt founded on contract is assignable; especially when the amount of the debt and the liability of the debtor are ascertained. 2 Sto. Eq. Jur., §1039, et seq; Page vs. Gardner, 20 Mo. 507; Sumrall vs. Sun. Mut. Ins. Co., 40 Mo. 27; Waterman vs. Frank, 21 Mo. 108; Minor vs. Edwards, 10 Mo. 671; Melton vs. Smith, 65 Mo. 315. Finally, the contract between the corporation and Pœhler the mortgageor made the bonds and deeds of trust in express terms, assignable. Plaintiff was a subsequent mortgagee to the corporation and had the right to pay the debt secured by prior mortgages, and by so doing he became subrogated to all the rights of the prior mortgageors. 1 Hilliard on Mort. (3rd Ed.) 329; Wolff v. Walter, 50 Mo. 292; Peltz v. Clark, 5 Pet. 481; 2 Story Eq., sec. 1023. By Pœhler's failure twice to pay his contribution on stock, and interest on the loan to him, the whole debt became due. There is nothing unreasonable in a by-law which prescribes when a debt shall become due. Field on Corp., sec. 306. Respondent's defence of tender of $35 on Aug. 22, 1879, to the corporation, in payment of all dues, interest and penalties then owing by Pœhler to the corporation is insufficient, because, 1st., it is not well pleaded; it does not state that it was made to the proper officer at the proper time or place, or that it was the exact amount then due. 2nd. There is no evidence of sufficient tender. Bouv. Law Dic., Art. Tender; 2 Par. on Cont. (6th Ed.) 637. A debtor may direct where his payment shall be applied, but if he does not the creditor may apply it to any one of two or more debts, or to any item of indebtedness. Middleton v. France, 21 Mo. 412; Waterman v. Younger, 49 Mo. 413; Gantner v. Kemper, 58 Mo. 567; Shortridge v. Pardee, 2 Mo. App. 363.

EWING, C.

The plaintiff substantially alleged that the “Washington Building and Savings Association” was a corporation. That on January 3rd, 1872, the defendant, Aug. Pœhler, made and delivered to said association his bond with conditions, for $800. That to secure the payment thereof he then and there executed and delivered to Stephen M. Jones his deed whereby he conveyed certain real estate to said Jones as trustee. In this deed of trust and bond there are numerous conditions fully set out, as to the requirements of the by-laws and constitution of the association which need not be fully stated here.

Plaintiff further alleged that said Pœhler on January 8th, 1873, and on February 4th, 1874, made two other bonds for $200 each, similar to the first and delivered them to said association and secured them by two other deeds of trust on the same real estate. That afterwards, on February 1st, 1877, said Pœhler made and delivered to plaintiff his three promissory notes, and to secure them executed a deed for the same real estate to VanBuren Jones as trustee. That the said Pœhler failed to comply with the conditions as to the payment of the bonds to said association, and that the association advertised the land as provided by their deeds; that the three notes made and delivered to plaintiff as above set forth were not then due; and that plaintiff paid off the bonds to the association and took an assignment thereof, and stopped the sale. That afterwards Pœhler failed to pay the three notes given to plaintiff as above, whereupon VanBuren Jones, the trustee, advertised and sold the land, which was bought by Breckenkamp for $453, and he received a trustee's deed from the trustee, VanBuren Jones.

That afterwards the defendant, Breckenkamp, paid to plaintiff the sum of $250, and at the time of said payment it was mutually agreed by and between plaintiff and the said Breckenkamp, that said sum of $250 should be credited of the sum which plaintiff claims to be due him on the three bonds aforesaid, without any acknowledgment on the part of said defendant that any more than that sum is due on said bonds, or that the sums claimed to be due on any particular bond is due. That there is yet due plaintiff on said bonds, after deducting said sum of $250, the sum of $231.73, with interest from the date last aforesaid. Plaintiff then prays for an ascertainment of the sum due, and that the land be sold to satisfy it.

The sole appellant, Breckenkamp, alone answered and admitted that his interest in the land was correctly stated by plaintiff, and sets out the constitution of the said Savings Association, amongst other provisions of which is the following:

Art. 6.--Payment of monthly installments.

Every shareholder shall pay for each and every share subscribed by him, in the monthly meeting as prescribed in the by-laws of this association, one dollar monthly to the treasurer. In case of his neglect or refusal to pay the same, a fine of ten cents per month for every dollar due, shall be assessed and added to his dues by the secretary. In case of non-payment of dues for the term of four months in succession, the delinquent shares shall be forfeited to the association.

And the following:

Art. 11.--Object of the Association.

The object of this association is and shall be the accumulation of a fund from monthly installments, premiums, fines, and interest on loans, for the benefit of its members.

The defendant then admits that Pœhler violated the conditions of the three bonds and deed of trust in certain particulars, to wit: “That he failed to pay his monthly dues and interest on the first Wednesday in June, 1878, and also failed to pay on first Wednesday in October, 1878,” but alleges that he afterwards tendered the amounts to the said association and to the plaintiff, which was refused; and that the assignment of the said bonds by said association to plaintiff was without authority of law, was not authorized by its charter, and therefore void. That on the 24th day of January, 1880, this defendant paid plaintiff, on account of said bonds, the sum of $250, which sum so paid, at said time, was in excess of the amount actually owing thereon, and prays that the three bonds and deeds of trust be declared void, and the title to the land decreed in the defendant.

Plaintiff then read in evidence the several bonds and deeds of trust, and notes and trustee's deed, as referred to in the petition, and introduced the former secretary of the association, whose evidence tended to show the amount paid by Pœhler and amounts then due and unpaid; that a tender was made by appellant but which was refused because the bonds had been assigned to plaintiff, and because the association claimed the whole debt to be due. Also offered in evidence the assignments on the bonds, of which the following is a copy:

“WASHINGTON, MO., Sept. 17, 1879.

The Washington Building and Savings Association hereby assigns the within bond, and deed of trust securing it, for the sum of $321.22, the balance due thereon, to J. J. Detweiler, for value received.

Washington Building and Savings Association,

By H. H. BEINKE, President.”

Defendant then offered in evidence a deed from Pœhler to Wm. H. Breckenkamp, trustee, conveying the land described in the petition to secure a $500 note made by Pœhler to appellant November 1st, 1...