Latham v. The Washington Bldg. and Loan Ass'n.

• Decision Date: 30 June 1877
• Citation: 77 N.C. 145
• Court: North Carolina Supreme Court
• Parties: A. C. LATHAM and wife v. THE WASHINGTON BUILDING AND LOAN ASSOCIATION.

77 N.C. 145

A. C. LATHAM and wife

v.THE WASHINGTON BUILDING AND LOAN ASSOCIATION.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL ACTION tried at Spring Term, 1877, of BEAUFORT Superior Court, before Eure, J.

Elizabeth J. Latham, the wife of plaintiff, was a member of the defendant association, and transacted her business with the same through her husband. She continued to pay dues of one dollar per month, on each share of stock owned by her, until the first Monday in October, 1872, as required by the by-laws of the association. At that date she borrowed of the association $204 for which she executed a bond for $400 with the written assent of her husband, conditioned that she should pay four dollars per month on two shares, until the regular dues paid thereon and the dividends arising therefrom, shall have paid to the association $400. This bond was secured by mortgage on a house and lot in the Town of Washington with a power to sell the same in default of payment as aforesaid. On the 3d of December, 1872, she received $312 more and executed a bond for $700 similar to the above for the payment of six dollars per month on each share, and this was secured by a second mortgage with like condition as above on the said house and lot. It was the custom of the association to put up its money for sale in lots of $200 and the bidding was restricted to its members. The highest bidder received $200 less the per centage bid. The said sum of $312 was $600 (the amount of the stock sold) less the per centage bid by the plaintiffs. There were two other sums received by the plaintiffs at subsequent times and in the manner aforesaid for which bonds were given and mortgages executed on the property to secure the payment of the same.

In August, 1876, the association adopted the following resolution; “That the Secretary be instructed to state the account of each member of the association who has stock redeemed, charging interest at the rate of six per cent per annum, on the sum of money received in redeeming, giving credit for all dues paid in, either as dues, interest, or fines, and charging to each share of stock its quota of expenses and losses.” Upon stating the accounts, it was ascertained that the plaintiffs had overpaid to the amount of $92.06. The association was winding up its business under said resolution, and the plaintiffs brought an action for the recovery of said amount alleged to be due them, insisting that the contract was usurious and that said payment had been made under a mistake of fact.

A jury trial being waived, His Honor found that the payment was not made under a mistake of fact, and that the assets of the association would not be sufficient to pay the present stockholders the amounts they had paid in; and held...