U. S. Building and Loan Association v. Silverman

• Decision Date: 12 November 1877
• Citation: 85 Pa. 394
• Parties: United States Building and Loan Association <I>versus</I> Silverman.
• Court: Pennsylvania Supreme Court

85 Pa. 394

United States Building and Loan Association versus Silverman.

Supreme Court of Pennsylvania.

November 5, 1877.

November 12, 1877.

November 5th 1877.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, WOODWARD and STERRETT, JJ. PAXSON, J., absent

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 13.

COPYRIGHT MATERIAL OMITTED

J. H. White and James S. Young, for plaintiff in error.

A. M. Brown and John S. Lambie, for defendant in error.

Mr. Justice GORDON delivered the opinion of the court, November 12th 1877.

Had the affidavit of defence filed in this case set forth losses incurred by the association, whether resulting from the depreciation of its property or otherwise, occurring before the time of the plaintiff's withdrawal, no doubt a proper set-off to the claim in suit would have been exhibited; herein, however, is the material defect in that it does not state that such losses did happen before the withdrawal. On trial, without such showing, the defence would clearly amount to nothing, for the plaintiff could not be charged with losses which occurred after he ceased to be a member of the company, and we must take it for granted that what a defendant cannot state in his affidavit of defence he cannot prove in court. A like defect is found in the allegation concerning the indebtedness of the company contracted in the purchase of lands, for neither is it stated when that indebtedness arose nor for what purpose the lands were bought. Then, with regard to the statement that there was no money in the treasury to meet the plaintiff's claim, this also is open to the objection that is, at best, only inferentially that we can learn that this deficit occurred before Silverman withdrew. It is said that the board of managers never authorized the appropriation of more than fifty per cent. of the money in the treasury, to the payment of withdrawing stockholders, and that the full amount required by the statute had been applied to the liquidation of the claims of such stockholders, in the order of their withdrawal, and the plaintiff had not been reached. We may infer, from all this, that, at the time Silverman withdrew there was no money in the treasury which could properly be appropriated to the liquidation of his claim either in whole or in part. But why could not this have been positively stated and thus have prevented the necessity of mere inference? Giving, however, this part of the affidavit the full force of a positive statement, is it a good defence made out? We think not. The Act of April 12th 1849, Pamph. L. 544, provides: "That any stockholder wishing to...