Mulrooney v. Irish-American Savings & Building Association
| Decision Date | 08 April 1913 |
| Citation | 155 S.W. 804,249 Mo. 629 |
| Parties | JOHN J. MULROONEY, Administrator of Estate of JOHN BULFIN, Appellant, v. IRISH-AMERICAN SAVINGS & BUILDING ASSOCIATION |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.
Affirmed.
James J. O'Donohoe for appellant.
(1) The funds of a building and loan association must be offered to the stockholders at a stated meeting without restriction as to the premium. Each stockholder must be afforded the opportunity of borrowing at the lowest rate he can in competition with other stockholders. The officers or board of directors have no right to fix by law or otherwise a minimum or maximum premium. Sec. 1362, R.S. 1899; Lewis v. Loan & Bldg. Assn., 183 Mo. 351; McDonnell v. Sav. & Bldg. Assn., 175 Mo. 250; Ruppell v. Guar. Sav. & Bldg Assn., 158 Mo. 613; Arbuthnot v. L. & B. Assn., 98 Mo.App. 382; Thudium v. L. & B. Assn., 98 Mo.App 377; Sappington v. Loan Co., 91 Mo.App. 551; Fry v. Sav. & Bldg. Assn., 88 Mo.App. 289; Fowles v. Loan Co., 86 Mo.App. 103; Clark v. Guar. Sav. & Bldg. Assn., 85 Mo.App. 388; State ex rel. v. Stockton, 85 Mo.App. 477; Miller v. Guar. Sav. Bldg. Assn., 83 Mo.App. 669; Edinger v. Guar. Bldg. Assn., 83 Mo.App. 615; Barnes v. Guar. Sav. & Bldg. Assn., 83 Mo.App. 466; Sappington v. Loan Co., 76 Mo.App. 242; Price v. Empire Loan Co., 75 Mo.App. 551; Moore v. Building & Loan Assn., 74 Mo.App. 468. (2) It is the law of this State for nearly three-quarters of a century that an agreement such as stated in the petition need not be in writing. Rose v. Bates, 12 Mo. 30; Groves' Heirs v. Fulsome, 16 Mo. 543; Slowey v. McMurray, 27 Mo. 118; McNew v. Booth, 42 Mo. 189; Peacock v. Nelson, 50 Mo. 256; Damschroeder v. Thias, 51 Mo. 100; Rogers v. Rogers, 87 Mo. 257; Fallon v. Clopton, 89 Mo. 284; Berlien v. Bieler, 96 Mo. 491; Leahey v. Witte, 123 Mo. 211; Richardson v. Champion, 143 Mo. 545; Phillips v. Hardenburg, 181 Mo. 475; Berg v. Moreau, 199 Mo. 416. Full performance by one of the parties to a contract takes an express trust out of the operation of the Statute of Frauds. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. McDermott, 91 Mo. 647; Hall v. Harris, 145 Mo. 614; Alexander v. Alexander, 150 Mo. 579; Bless v. Jenkins, 129 Mo. 657; Marks v. Davis, 72 Mo.App. 562; Hasenbeck v. Hasenbeck, 111 Mo.App. 38. Past performance does likewise. Hoyle v. Bush, 14 Mo.App. 408; Fuchs v. Fuchs, 48 Mo.App. 23. The Statute of Frauds has no application in a suit based upon fraud practiced by defendant. Corder v. O'Neill, 176 Mo. 401. An express trust in personal property can be created by parol. Banking Co. v. Miller, 190 Mo. 665. A conveyance absolute on its face from a debtor to his creditor, will, in equity, be treated as a mortgage. Brant v. Robertson, 16 Mo. 129; Sharkey v. Sharkey, 47 Mo. 543; O'Neill v. Capell, 62 Mo. 202; Griswold v. Seligman, 72 Mo. 124; Borum v. Reed, 73 Mo. 462; Schradski v. Albright, 93 Mo. 48; Hargadine v. Henderson, 97 Mo. 386; State to use v. Bell, 2 Mo.App. 103; Newell v. Keeler, 13 Mo.App. 191. (3) The ten-year Statute of Limitations applies in this case and it did not begin to run until after the sale of the real estate and the repudiation of the agreement by respondent. Hunter v. Hunter, 50 Mo. 445; Bender v. Zimmerman, 80 Mo.App. 138; Shinn v. Wooderson, 95 Mo.App. 6. Estoppel to be availed of as a defense must be pleaded. Cockrill v. Hutchinson, 135 Mo. 75; Throckmorton v. Pence, 121 Mo. 60; Avery v. Railroad, 113 Mo. 568; Hammerslough v. Cheatham, 84 Mo. 21; Bray v. Marshall, 75 Mo. 330; Fernean v. Whitford, 39 Mo.App. 317; Plow Co. v. Lang, 55 Mo.App. 356. Lapse of time, short of the statutory period of limitations, does not constitute laches, and, like estoppel, to be available as a defense, must be pleaded. Cantwell v. Crawley, 188 Mo. 57; Condit v. Maxwell, 142 Mo. 266; Real Estate Co. v. Lindell, 142 Mo. 61; Spurlock v. Sproule, 72 Mo. 503; Purdy v. Banker's Life Assn., 101 Mo.App. 109; Bank v. Kennett Est., 101 Mo.App. 398; Smith v. Roach, 59 Mo.App. 115. (4) The fact that Dwyer called three or four times at Bulfin's home in reference to the loan and finally secured the quit-claim deed from him establishes his agency. Ingalls v. Averitt, 34 Mo.App. 371. One who ratifies an act done in his name without previous authority ratifies it as done, and he cannot adopt the part which is beneficial to him, and reject that which is injurious. Dry Goods Co. v. Bank, 81 Mo.App. 51; Bohlmanns v. Rossi, 73 Mo.App. 313; McLachlin v. Barker, 64 Mo.App. 511; Fahy v. Grocery Co., 57 Mo.App. 73; Clark v. Clark, 59 Mo.App. 532; Horse Co. v. Bennett, 52 Mo.App. 333; Davis v. Krum, 12 Mo.App. 279; Porter v. Woods, 138 Mo. 539; Barrett v. Davis, 104 Mo. 561; State ex rel. v. Harrington, 100 Mo. 170. "Where one party to an alleged contract made by its agent denies the contract, and then introduces the agent to prove what the contract really was, such party will not be heard to deny the agent's authority to make any contract whatever." Silver v. Railroad, 5 Mo.App. 381; 72 Mo. 194.
R. M. Nichols for respondent.
(1) The payments of alleged non-competitive premium were made voluntarily and plaintiff cannot recover a voluntary payment made. Flynn v. Mechanics B. & L. Assn., 93 Mo.App. 444; Ranson v. Hayes, 39 Mo. 445; Kirkpatrick v. Smith, 55 Mo. 389; Peters v. Loenstein, 44 Mo.App. 406; 33 L.R.A. 358n. (2) The statutes against usury do not change this common law rule because they are penal and must be construed strictly, and because the present suit is not within its meaning. Flynn v. B. & L. Assn., 93 Mo.App. 444; Little v. Hooker, 122 Mo.App. 620. (3) The alleged exaction of the non-competitive premium on June 10, 1896, gave a cause of action. The payment of monthly dues on the stock up to and including January, 1898, does not, within the sense of the statute, constitute "an open and current account," so as to prevent the bar of the statute. The alleged non-competitive premium was clearly barred at the institution of the suit, December 16, 1905. R.S. 1899, sec. 4278; Thompson v. Brown, 50 Mo.App. 314; Harrison v. Hall, 8 Mo.App. 167. (4) The alleged exaction of a non-competitive premium on June 10, 1896, could not be connected with the alleged promise to receive the title and account for the sum realized from the sale less the debt; it could not be a "running account" so as to draw the one into the other, thereby saving it from the statute. The case of Hunter v. Hunter is overruled. Hudson v. Cahoon, 193 Mo. 549; R.S. 1899, secs. 4273 and 4278; Richardson v. Gregory, 126 Ill. 166; Callan v. Callan, 175 Mo. 346. (5) The deed, as Bulfin says, was given to save the expense of foreclosure. There is no rule of law which would prevent the mortgagee from taking a quit-claim deed from the mortgagor in extinguishment of the mortgage. The testimony does not show that the quit-claim deed was given as a security for the debt, or that after the giving of the quit-claim deed any debt was claimed to exist by the defendant. The testimony shows that the quit-claim deed and the $ 25 were in satisfaction of Bulfin's interest in the property, and unless the effect of the quit-claim deed is overthrown by clear and positive evidence it must prevail. Bailey v. Trust Co., 188 Mo. 483; Jones v. Hubbard, 193 Mo. 147; Bowman v. Ush, 143 Ill. 667; Boeck v. Donnovan, 217 Mo. 70.
This is an action in equity for an accounting. It is here on appeal from a judgment of the circuit court of the city of St. Louis, in which latter court it was begun on the 16th day of December, 1905. The circuit court found the issues for the defendant and dismissed the bill of plaintiff. An appeal was prosecuted in due form to the St. Louis Court of Appeals, but the latter court, upon its attention being called to the fact that the case, as made by the pleadings, involved the question of the constitutionality of section 3389 (R.S. 1909), and section 3391 (R.S. 1909), transferred the case here under the constitutional provision, without rendering any decision herein.
As originally filed, John Bulfin and his wife Mary E. Bulfin, were plaintiffs, and respondent Irish-American Building & Loan Association, a corporation, organized under the laws of Missouri, was defendant. Pending the action in the court nisi, and on the 15th day of February, 1906, plaintiff John Bulfin died, and the suit was properly revived in the present plaintiff below and appellant here, John J. Mulrooney, as administrator of John Bulfin, deceased. Upon the trial the suit was dismissed as to Mary E. Bulfin, an original plaintiff, upon the admission that she was in no wise interested in the cause of action.
In substance the allegations of the petition are that on the 9th day of June, 1896, plaintiff's intestate, John Bulfin being desirous of purchasing a home for himself (which home was afterwards purchased and will be hereinafter called, for convenience, No. 2826 Dickson street), made application to defendant for a loan, the proceeds of which were to be used, and were used in the purchase of the house above named. This loan he agreed to secure and did afterwards secure, by a deed of trust on the premises, as well as by hypothecating with defendant as collateral, seventeen shares of stock in defendant association. The loan was evidenced by a bond for the sum of $ 4080, and the said bond and deed of trust securing same were duly executed by plaintiff's intestate, hereinafter for convenience, called Bulfin, and his wife, and the same duly placed of record on the 10th of June, 1896. Bulfin was required to pay and did pay thirty per cent premium for said loan of $ 4080,...
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