Iowa Business Men's Building & Loan Ass'n v. Berlau

• Citation: 98 N.W. 766,125 Iowa 22
• Parties: IOWA BUSINESS MEN'S BUILDING & LOAN ASSOCIATION, Appellant, v. HANS P. BERLAU, F. S. WIDLE, ET AL
• Decision Date: 08 March 1904
• Court: United States State Supreme Court of Iowa

98 N.W. 766

125 Iowa 22

IOWA BUSINESS MEN'S BUILDING & LOAN ASSOCIATION, Appellant, v. HANS P. BERLAU, F. S. WIDLE, ET AL

Supreme Court of Iowa, Des Moines

March 8, 1904

Appeal from Marshall District Court.--HON. OBED CASWELL, Judge.

As its name indicates, the plaintiff is a building and loan association organized and doing business under the laws of this State. In January, 1894, the defendants Berlau, who are husband and wife, borrowed of the plaintiff the sum of $ 500 for which amount they executed their joint note and secured the same by a mortgage on real property. At the same time and as a part of the same transaction, the defendant Hans P Berlau became a member of the plaintiff association and the owner of five shares of its capital stock which he assigned to the plaintiff as collateral security for the loan. The note given by the defendants is as follows:

For Value Received, We hereby promise to pay to the Iowa Business Men's Building and Loan Association at its office in Marshalltown, Iowa, the sum of Five Hundred Dollars, being an advance payment on the five shares of its capital stock evidenced by Certificate No. 3,296, now owned by Hans P Berlau as a member of said Association, payable in installments as provided by the Articles of Incorporation and By-Laws of said Association.

We do hereby agree to pay to said Iowa Business Men's Building and Loan Association monthly installments of Three Dollars the same being sixty cents per share on said shares, and monthly installments of Three Dollars as premium on said advance, being equal to sixty cents per share on said shares and interest upon the said principal sum of Two 50/100 Dollars during the existence of this note in monthly payments of Eight 50/100 Dollars. The first payment of Eight 50/100 Dollars being due and payable on the date hereof, and Eight 50/100 Dollars thereafter on the 30th of each and every month until 84 full monthly payments have been made, or until dues paid, together with the earnings accrued on each share of the stock of said Association held by the said Hans P. Berlau, and assigned to the said Association as collateral security, for the payment of this note, amount to One Hundred Dollars.

The failure to pay each and every one of said monthly installments within two months after due shall make the whole sum evidenced hereby due and collectible at once, at the option of the payee.

All payments past due shall draw interest at eight per cent. from the date they become due until paid, and we agree that in any suit on this note a reasonable attorney's fee shall be allowed and taxed with the costs.

The certificate of stock issued by the plaintiff to Berlau, and referred to in the note, promised to pay to the holder thereof $ 100 for each share of stock at maturity "according to the conditions" of the certificate, which were as follows, so far as material:

84 Payment Stock.

Conditions.

First. The monthly payments named upon the face of this certificate shall be made for eighty-four full months. * * *

Third. When said eighty-four full monthly payments have been made to this Association no further payment shall be required.

Fourth. This certificate will be paid at the office of the Trustee of this Association upon maturity, as provided in Section 5 of Article XVI of the By-Laws of this Association, which is as follows:

Section 5 of Article XVI.

Whenever any share of stock has matured, by payments made and profits credited to the full amount of One Hundred Dollars ($ 100.00), the same is deemed to have matured. No further dividends will be credited, and the stock may be withdrawn at any time.

The defendant Widle bought the mortgaged premises in December 1894, and assumed the payment of the note given to the plaintiff by his grantors. At the same time the stock and loan account was transferred to him by the plaintiff's secretary, and he thereafter continued the payments provided for in the note until 88 full payments had been made. This action was brought to recover a balance alleged to be due on the note, and to foreclose the mortgage. There was a decree for the...