Russell v. Equitable Loan & Sec. Co

Decision Date05 October 1907
Citation129 Ga. 154,58 S.E. 881
CourtGeorgia Supreme Court
PartiesRUSSELL. v. EQUITABLE LOAN & SECURITY CO.

Writ of Error — Divided Court —Affirmance.

This case being for decision by a full bench of six justices, and the justices being equally divided in opinion, the judgment is affirmed by operation of law.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4421-4427.]

Fish, C. J., and Lumpkin and Evans, JJ., dissenting.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by Lewis C. Russell against the Equitable Loan & Security Company. Judgment for defendant, and plaintiff brings error. Affirmed by divided court.

Lewis C. Russell instituted suit against the Equitable Loan & Security Company, a corporation, in the superior court of Fulton county. In the petition it was alleged, among other things, as follows: "(2) That your petitioner is the holder and owner * * * of four certificates, numbered 740, 742, 743, and 745, respectively, class A. (3) By the terms of said certificates, the Equitable Loan & Security Company agreed, undertook, and obligated itself to pay * * * the sum of $505.54 upon each of said certili-cates, making $2,022.16, should the holders of each of said certificates pay as specified therein 130 monthly installments of $1.25 each upon each certificate. (4) The said certificates are identical in form; * * * the only difference being that each certificate shows its proper number, and a copy of one of said certificates is hereto attached as a part of this petition, and marked 'Exhibit A.' (5) Your petitioner shows that upon his part he has fully complied with each and all of the stipulations, conditions, and requirements devolving upon him under said contract. (6) Having paid all dues and charges according to the requirements mentioned in paragraph 3, the said company is indebted to him in the sum of $2,022.16. (7) The said Equitable Loan & Security Company refuses to pay said sum of money according to its undertaking and obligation, though requested so to do and in duty bound thereto. * * *" Other allegations were made which involved certain certificates known as "Class B"; but, as the judge did not pass upon them, it is unnecessary to set them out.

Exhibit A, which is referred to in paragraph 4 of the plaintiff's petition, is as follows:

"United States of America. Incorporated under the laws of the state of Georgia. Equitable Loan & Security Company. Atlanta [$505.54] Georgia. Class A. No. 2, 049. The Equitable Loan & Security Company of

Atlanta, Georgia, promises to pay to ——

of ——, Georgia, or order, at its home of-

five in Atlanta, Ga., five hundred and five dollars and fifty-four cents ($505.54) upon the following express terms and conditions: (1) That there shall be paid by the holder to the maker hereof, at its home office in Atlanta, Georgia, without any other or further notice, an installment of one dollar and twenty-five cents ($1.25) on the fifth day of each and every succeeding month hereafter until one hundred and thirty installments shall have been thus paid, time being of the essence of this contract. (2) That the holder hereof shall surrender for cancellation this certificate whenever the same shall be called, upon the payment to him of its then redemption value, the maker reserving the right to call and pay the same before maturity under the following rules and regulations. Certificates paid before maturity shall be paid in the following order, to wit: The first paid shall be No. 1, the second paid shall be No. 3, the third paid shall be No. 9, the fourth paid shall be No. 2, the fifth paid shall be No. 6, the sixth paid shall be No. 18, the seventh paid shall be No. 27, the eighth paid shall be No. 4, the ninth paid shall be No. 12, the tenth paid shall be No. 36, and so on, according to the table which is printed on the back hereof, and which table is hereby referred to and made a part of this contract (3) That the redemption value of this certificate, if paid prior to its maturity, shall be fifteen dollars, if paid one month after date eighteen and 5/100 dollars, if paid two months after date twenty-one and 11/100 dollars, if paid three months after date twenty-four and 18/100 dollars, if paid four months after date twenty-seven and 26/100 dollars, if paid five months after date thirty and 25/100 dollars, if paid six months after date, and so on, the redemption value increasing three dollars with each installment paid, besides interest at the rate of 4 per cent, per annum on the redemption value of said certificate for the month next preceding the date of redemption hereof. (4) That of each and every installment paid as aforesaid the maker hereof shall place twent-five cents to a reserve fund, which shall be used and held for the protection of all live outstanding certificates issued by this company, and seventy-five cents to a redemption fund, which may be used as follows: (a) For paying certificates issued by this company in order and manner that they shall mature, (b) For paying off and retiring certificates prior to their maturity according to the terms hereinbefore stated, (c) For paying the heirs, executors, or administrators of any deceased holder hereof the sum that installments paid by such deceased may have contributed to the redemption and reserve funds, provided said certificate is in full force at death of holder, and satisfactory proof of such death is furnished the maker hereof within sixty days after death occurs, and the remaining twenty-five cents and all transfer fees shall be used for the expenses of said company. (5) That a failure to pay any one of said installments when due subjects the holder hereof to a fine of fifty cents, which, together with the omitted installment, must be paid by the fifth day of the next succeeding month, and, if said installment and fine are not paid within the said time, then this certificate shall be null and void and of no value, and the holder hereof forfeits all payments and fines, provided, however, that this company will reinstate said certificate at any time within three months after such forfeiture, upon the holder hereof first paying all dues hereon, together with fines assessed at the rate of fifty cents for each payment in default. If this certificate shall, according to the plan of redemption herein stated, become payable after it shall have been forfeited and before its reinstatement, then it shall be entitled to payment the next month after its reinstatement, and provided, further, that after six monthly installments shall have been paid in the manner herein provided, and all other stipulations herein shall have been fully complied with by the holder hereof and such holder shall thereafter default in any subsequent installment, the maker agrees to issue to such defaulting holder a new certificate, which shall bear the next unsold num-ber for an amount equal to the payments made on such defaulted certificate, less the amount deducted for expenses, which new certificate thus issued, shall be nonassessable, and shall bear interest at the rate of 4 per cent, per annum and shall be payable in its regular order as per plan of redemption herein stated, provided application for such new certificate shall be made to the home office of the company, and the old or defaulted certificate surrendered within three months after such defaulted certificate shall be canceled on the books of the company. (6) That all receipts and fines shall be paid into the redemption fund. (7) That the contributions to the reserve and redemption funds may be loaned to the holders of certificates issued by this company upon terms and security to be accepted by the board of directors, provided that not more than one hundred dollars can be loaned on account of any one certificate and no loan can be made for a longer time than five years. (8) That after the reserve fund shall have reached the sum of one hundred thousand dollars, the Interest earnings therefrom may at the option of the board of directors of this company be applied to the redemption of certificates then in force issued by this company. And, when the reserve fund shall have reached the sum of two hundred thousand dollars, then 50 per cent, or any other portion or all the further current contributions thereto may be applied to the redemption of certificates in force in like manner with the interest thereon when the board of directors shall so authorize. (9) That no transfer of this certificate shall be valid or binding on the maker hereof, until such transfer has been made in writing hereon, and the same duly recorded on the books of the company at its home office, and for each transfer a fee of one dollar must be paid before a transfer will be made. (10) That each and every transferee of this certificate accepts it subject to all the stipulations herein. (11) That no statement made by any one except as herein set forth shall be binding on this company. (12) That no part of the reserve, redemption, or other funds shall ever be loaned to any officer or director of this company. (13) That no part of the reserve and redemption fund shall be loaned, except (a) upon Improved real estate within the incorporate limits of the city in which it is located, and then not in excess of 50 per cent, of its cash market value; (b) upon government, state, county, or city bonds that have never defaulted the payment of interest, and this provision can never be changed, except by the consent of every holder of live certificates issued by this company in class A. In witness whereof this company has caused this certificate to be executed in its name and behalf under its corporate seal and by its president and secretary. This—day of——. Equitable Loan & Security Co., by H. E. W. Palmer, President, Jno. S. Owens, Secretary."

On the back of the certificate appears the following:

...

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6 cases
  • State v. Emerson
    • United States
    • Missouri Supreme Court
    • December 12, 1927
    ... ... Pl. (2 Ed.) 68; ... Joyce on Indictments (2 Ed.) sec. 284. It is fundamental that ... a defendant may plead one prosecution in ... effect. Russell v. Equitable L. & S. Co., 129 Ga ... 154; People v. Elliott, 74 Mich ... ...
  • State v. Emerson
    • United States
    • Missouri Supreme Court
    • December 12, 1927
    ...to an agreement do not know what another party to it will do, nor when or whether he will do it, have that effect. Russell v. Equitable L. & S. Co., 129 Ga. 154; People v. Elliott, 74 Mich. 264. (3) The evidence is insufficient to sustain a conviction. (a) The testimony to the effect that d......
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    • April 24, 1967
    ...and consideration. Equitable Loan and Security Co. v. Waring, 117 Ga. 599(14), 44 S.E. 320, 62 L.R.A. 93; Russell v. Equitable Loan and Security Co., 129 Ga. 154, 58 S.E. 881; Barker v. State, 56 Ga.App. 705(1), 193 S.E. 605; Heath Sales Co. v. Bloodworth, 221 Ga. 567, 569, 146 S.E.2d 275. ......
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    ...together in deter-mining whether or not the offense of carrying on a lottery has been committed. Russell v. Equitable Loan & Security Co., 129 Ga. 154, 161, 58 S.E. 881, 12 Ann.Cas. 129; Meyer v. State, 112 Ga. 20, 22, 37 S.E. 96, 51 L.R.A. 496, 81 Am.St.Rep. 17. Thus it was not error for t......
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