International Bldg. & Loan Ass'n v. Biering

• Court: Texas Supreme Court
• Writing for the Court: Brown
• Citation: International Bldg. & Loan Ass'n v. Biering, 26 S.W. 39 (Tex. 1894)
• Decision Date: 09 April 1894
• Parties: INTERNATIONAL BLDG. & LOAN ASS'N v. BIERING.

Page 39

26 S.W. 39

INTERNATIONAL BLDG. & LOAN ASS'N v. BIERING.

Supreme Court of Texas.

April 9, 1894.

On motion for rehearing. Motion overruled.

For principal opinion, see 25 S. W. 622.

BROWN, J.

The International Building & Loan Association asks for a rehearing in this cause for several reasons, which we will briefly examine.

1. It is claimed that the court below entered judgment against it for more than plaintiff claimed in his petition. Biering alleged in his petition, among other things, that he had paid on his seven shares of stock a given amount, and had given the notice of withdrawal required by the by-laws; that the directors of the defendant had failed to ascertain the withdrawal value of his stock to which he was entitled; and that, under the by-laws, he was in any event entitled to the full amount he had paid, for which he prayed judgment, and for general relief. Defendant answered, setting up its by-laws, from which the right of plaintiff to withdraw, and the terms upon which such withdrawal could be made, appeared. In a trial amendment, defendant set up that it had under the by-laws ascertained the value of the series of stock in which plaintiff owned the 7 shares to be $99.50 per share; that plaintiff was owner of 6½ shares of that series; and asked that, in case plaintiff was entitled to recover, the ascertained value of his stock be credited upon the debt due to defendant, which was alleged to be $1,260. It also alleged that, after deducting the value of the stock, defendant was entitled to judgment for $613. To subtract the amount claimed as balance on the debt from the amount of the debt gives the admitted value of the stock at $647. The court found the value to be $646.75. The defendant having pleaded the act of the directors in declaring the value, and the maturity of the stock and its ascertained value, the court rightly entered judgment upon the answer. Bourke v. Vanderlip, 22 Tex. 221. It is likewise claimed that the defendant association was entitled to a credit for installments which plaintiff failed to pay upon his stock. Nowhere in the answer does it appear that any unpaid installments upon stock were claimed against plaintiff. On the contrary, the several items are specifically stated, and do not include such claim. Besides, the court found that plaintiff had paid all installments accruing before the time that the stock was declared matured. By the terms of the by-laws, when the stock was matured, it was to be canceled, and plaintiff was entitled to the value of the stock, less any indebtedness due from the shareholder to the association. Certainly, after plaintiff was entitled to withdraw the money, and the stock was canceled, he could not be required to pay upon it.

2. It is urged that the premium embraced in the note was not to be paid for the use of the money loaned, but that the "method of business is to advance a member the present value of the shares, that he may build a house for his family, which shall not cost him more than the ordinary rent." The same contention was made in Jackson v. Cassidy, 68 Tex. 283, 4 S. W. 541. Chief Justice Willie, for the court, so clearly...