Holmes v. Royal Loan Ass'n

Citation128 Mo. App. 329,107 S.W. 1005
PartiesHOLMES v. ROYAL LOAN ASS'N.
Decision Date27 January 1908
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Gentry County; Wm. C. Ellison, Judge.

Action by Richard A. Holmes against the Royal Loan Association. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

J. W. Peery and Rust & Stringfellow, for appellant. J. W. Sullinger, for respondent.

BROADDUS, P. J.

This is a suit by plaintiff for an accounting, and to have a certain deed of trust executed by him canceled. The defendant is a building and loan association under the laws of Missouri, located at the city of St. Joseph. On the 21st day of September, 1896, the plaintiff made sworn written application to the defendant association for a loan of $600 on the real property described in the said deed of trust. On the 21st day of December next following plaintiff with his wife, Mattie, executed what was denominated a mortgage bond, wherein they acknowledged themselves indebted to the defendant in the sum $600 borrowed money "on six shares of the 57th series of the capital stock of said society now [then] owned by Richard Holmes." In said bond plaintiff bound himself to pay to the defendant the sum of $3.60 each month as monthly dues upon said stock, and also the sum of $3 each month as monthly interest at the rate of 6 per cent. per annum upon said $600, and $3 as monthly premium upon said shares of stock. By the terms of the mortgage bond the six shares of stock were pledged for the payment of the sum borrowed. On the 22d day of December plaintiff and his wife executed the deed of trust mentioned to secure the payment of said principal sum of $600 loaned on said six shares of capital stock, and the payment monthly of $3.60 as dues on said stock, $3 as interest on the money loaned, and $3 as premium. The plaintiff alleges that he was compelled to execute said mortgage bond and said deed of trust to defendant; that he has been compelled to pay on said bond the sum of $3.60 as dues, $3 as interest, $3 as premium monthly, as provided therein; and that he has made 90 monthly payments, which aggregate the sum of $864 — a sum more than sufficient to discharge said sum of $600 borrowed and the accumulation of the legal rate of interest thereon. The record does not furnish any evidence that plaintiff was under duress when he executed the said bond and deed of trust, and there is no evidence of fraud; therefore their validity stands admitted unless they are invalid for some other reason.

The plaintiff introduced evidence tending to prove that it was represented to him by defendant's local agent and its secretary that the monthly payments made by him were only 6 per cent. per annum on the principal sum, and the loan would be discharged in 90 months. He testified that he had no knowledge that any stock had been issued to him by the association at any time until this controversy arose. It appears among other things that the six shares of stock were issued to plaintiff, but retained by defendant as required by statute, and that the secretary handed him the old by-laws of the association on which was written across the face in red ink "amended June 22d, 1895." The plaintiff says that he was unable to compute the interest and the payment himself, but he does not state or make any further explanation in that respect. He does not claim that the defendant's agents practiced any fraud to deceive him, but merely makes a statement of the transaction as he understood it. Under this state of facts, the plaintiff claims that the transaction was an ordinary loan; to support which much reliance is placed upon the case of the Defendant Association v. Forter, 68 Kan. 468, 75 Pac. 484, where the court, in passing upon a similar loan, in which the circumstances were much like the ones in this case, held that the loan was an ordinary one, without reference to the question whether the association was acting under the amended act of June 21, 1895 (Laws 1895, p. 105), or the previous statute regulating building and loan associations. The court, in commenting on the facts, treats the provisions in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT