Penn v. . King , 202 N.C. 174 ( 1932 )

This is an action to recover the balance due on a loan of money made by the Twin City Building and Loan Association to the defendants on 16 April, 1921.

In their complaint, the plaintiffs allege that on 16 April, 1921, the Twin City Building and Loan Association loaned to the defendants the sum of $1,500, and that there is now due on said loan the sum of $1,347.85, with interest from 21 June, 1930. They demand judgment that, as receivers of the said association, they recover of the defendants the said sum as the balance due on said loan.

In their answer, the defendants admit that on 16 April, 1921, the defendant, J. Frank King, borrowed from the Twin City Building and Loan Association the sum of $1,500. They allege that said loan was payable in monthly installments, and that the said J. Frank King has paid all the installments on said loan, except the installment amounting to $27.45 due on 1 June, 1927. They allege that they have tendered to the plaintiffs the said sum of $27.45 and have paid said sum into the office of the clerk of the Superior Court of Rockingham County, subject to the order of the plaintiffs.

In their reply, the plaintiffs admit that monthly payments were made by the defendants to the Twin City Building and Loan Association, as alleged in their answer. They allege, however, that said monthly payments were not made on the loan to the defendants, but were made on shares of stock in the Twin City Building and Loan Association, which had been subscribed for by the defendant, J. Frank King. They further allege that the Twin City Building and Loan Association is now insolvent, and that as receivers of said insolvent Association they are now engaged, under orders of the court, in liquidating its affairs.

The defendants deny, for want of information and belief, that the Association is insolvent.

At the close of the evidence for the plaintiff, defendants' motion for judgment as of nonsuit was allowed, and plaintiffs excepted.

From judgment dismissing the action as upon nonsuit, plaintiffs appealed to the Supreme Court. On the admissions in the pleadings in this action plaintiffs were entitled to judgment that they recover of the defendant, J. Frank King, at least, the sum of $27.45, with interest from 21 June, 1930, and the costs of the action. The tender alleged in the answer does not relieve the defendant, J. Frank King, from liability to plaintiffs for the amount admitted to be due on the loan to him by the Twin City Building and Loan Association, with interest and costs which accrued prior to the filing of the answer. C. S., 896. There was error in the judgment dismissing the action. For this reason, the judgment must be reversed.

The determinative issued raised by the pleadings in this action should be submitted to the jury. If the jury shall find from the evidence that the defendant, J. Frank King, is a shareholder of the Twin City Building and Loan Association and that said Association is insolvent, then the monthly installments paid by him to the Association should be applied to the payment of his dues as a shareholder, and not as credits on his indebtedness to the Association. Rendleman v. Stoessel, 195 N.C. 640,143 S.E. 219. Otherwise, the payments should be applied on the indebtedness, and judgment rendered for the balance due. The judgment dismissing the action as of nonsuit is

Reversed.