Price v. Kendall

• Decision Date: 04 June 1896
• Parties: PRICE v. KENDALL.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 810

36 S.W. 810

PRICE v. KENDALL.¹

Court of Civil Appeals of Texas.

June 4, 1896.

Appeal from district court, Anderson county; J. R. Burnett, Judge.

Action by W. C. Kendall, receiver of the Palestine Loan Association, against F. E. Price, administrator of C. F. Sawyers, deceased. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by the appellee, as receiver of the Palestine Loan Association, to recover of the appellant upon certain obligations executed by his intestate, C. F. Sawyers, as a borrowing member of the association. The material facts shown upon the trial below are as follows:

(1) The Palestine Loan Association was an association duly incorporated under the laws of the state of Texas. C. F. Sawyers, who was a stockholder and borrowing member in said association, died on the ____ day of July, 1893, and the appellant is the administrator of his estate.

(2) On September 4, 1889, Sawyers borrowed of the association the sum of $596, and entered into a written contract with it, whereby he agreed to pay the association the sum of $800, of which $596 was to bear interest at the rate of 12 per cent. per annum, upon the following conditions:

First. That the interest payments were to continue monthly until the stock of the association became of the par value of $200 per share, under the by-laws, or until the loan should be otherwise discharged. Second. That shares of stock numbered 832, 833, 834, and 835 had been transferred to the association as collateral security for the loan, and that all dues upon said shares, payable under the by-laws, should be paid until the shares reached the par value of $200 each. Third. That the association held a vendor's lien, a mechanic's lien, and a deed of trust upon part of block 42, in De Bard's addition to the city of Palestine, to secure compliance with the contract, and that the borrower should pay all taxes on said parcel of land, and keep the improvements insured. Fourth. That all moneys paid by Sawyers into the association should be appropriated as follows: (1) To taxes, (2) to insurance, (3) to fines, (4) to all expenses and losses sustained upon said four shares of stock, (5) to interest, and (6) to dues. Fifth. That if Sawyers should pay all interest upon the $596 as above stipulated, and pay the dues upon the four shares of stock as the same were payable under the by-laws, and pay all fines and other proper charges upon said shares until they matured, then the above obligation should become void. Sixth. That upon failure to pay interest or dues for six months the principal sum of $800, and all interest due on the $596 should at once become payable. Seventh. That said Sawyers might at any time return his debt by paying the principal sum due, with interest to the date of repayment, and in the event of repayment the stock should be released; and if he should desire to have his stock redeemed by the association in repayment of his debt, it should be taken by the association at the cash cancellation value thereof as determined by the association. Eighth. That if Sawyers' debt was not paid until the maturity of his four shares of stock, then his obligation above set out should be a full set-off against said four shares. Ninth. That Sawyers should pay 10 per cent. attorneys' fees, if the contracts were enforced by legal proceedings.

(3) The loan association held as collateral to the contract above set out the note of C. F. Sawyers for $750, given for the purchase money of part of block 42 in De Bard's addition to Palestine.

(4) Upon said contract of date September 4, 1889, there has been paid $307.90 interest and $288 dues in installments of $4 per month from July, 1888, to June, 1894, inclusive.

(5) Upon December 30, 1890, C. F. Sawyers and wife borrowed of the Palestine Loan Association the sum of $1,730, and entered into a written contract with the association, whereby they obligated themselves to pay to the association the sum of $2,000, of which $1,730 was to bear 12 per cent. per annum interest. This obligation is conditioned exactly as that of C. F. Sawyers, of date September 4, 1889, above set out, except as to amounts and security. Ten shares of stock were transferred as collateral to secure this second contract.

(6) The loan association held as collateral to this second contract two mechanics' liens upon part of block 42 in De Bard's addition to Palestine.

(7) Upon said contract of date December 30, 1890, there has been paid $638.80 interest, and $720 dues in installments of $10 per month from July, 1888, to June, 1894, inclusive.

(8) The payments made by appellant and his intestate were receipted for by entries in receipt books furnished by the association, which were ruled into columns, one column being for dues, another for interest, and another for fines and assessments; and all payments pleaded by appellant as payments of interest were entered in the interest column, and all payments pleaded as payments of dues were entered in the dues column.

(9) When appellant's intestate joined the Palestine Loan Association and purchased his stock, and at the dates of the contracts sued upon, the association was operating under a by-law which provided that nonborrowing members desiring to cancel and withdraw, or borrowing members desiring to pay up their loans, using pledged stock as part payment, should receive for their stock a cancellation price fixed by the board of directors, but which should not be less than the amount of dues paid in on each share and 5 per cent. per annum interest, and this amount was fixed by the board of directors as the...