Booz's Appeal , 109 Pa. 592 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the court,

The Mechanics’ Building and Loan Association of South Wilkes-Barre, appellee, was evidently incorporated under the Act of 12th April, 1859 (P. L., 544). It was held in Rhoads v. Hoernerstown Building and Savings Association, 1 Norris, 180, that said Act was general and impliedly repealed the whole system of patchwork by which building associations had been chartered prior to its passage. The contention that the building association, appellee, was incorporated under the subsequent Act of 26th March, 1867 (P. L., 44), is of little importance. An examination of said Act shows that by the third section the courts of Common Pleas are authorized to grant charters for certain purposes, among which building associations are included. The draftsman of said Act was evidently ignorant of the fact that such power had previously been conferred upon the courts of Common Pleas. The Act of 1867 therefore conferred no new power in this respect, and for all practical purposes might as well not have been passed. Aside from this it does not define the powers of such associations, and we are obliged to fall back upon the Act of 1859 to ascertain them. We are therefore of opinion that the learned Master and the court below were correct in holding that the rights of the parties in this case must be measured by the Act of 1859, and not- otherwise.

While the assignments of error are numerous the principles involved in the case are few and easily understood. The whole trouble grows out of the fact that the association, while prosperous at the commencement of its business, ceased to be so at the close of 1876 or the beginning of 1877. This was but the natural result of the financial disturbances following the year 1873. The consequence was the association could not loan its money. It culminated in the passage of a by-law on March 7th, 1877, providing that “ Any stockholder withdrawing from this association shall be entitled to receive the amount of dues actually paid in, and fifteen per cent, interest thereon, first deducting all fines and charges.” In reference to this by-law the Master finds : “ That prior to the submission of said new by-law, and at the regular monthly meeting of the directors held December 23d, 1876, the money on hand was offered for loan to the shareholders, and no hid being received an allotment was made under the provisions of Article XIV of the Constitution ; that this allotment was refused by some of the shareholders to whom it was made ; that the association became unable to make loans of its funds which continued to accumulate without demand therefor from the members, and that the said new by-law was submitted and finally adopted in view and because of this inability to make the loans as aforesaid, and that the amount for each share authorized to be paid to stockholders withdrawing under said by-law was supposed to be about the value of each share at the time of withdrawal.”

The learned Master further finds that said by-law was regularly adopted after the requisite notice, and that all the necessary forms had been fully complied with. That the appellants did not know of it at the time, if the fact be so, is not to the purpose. It was not done in a corner, and there is not the slightest ground for any allegation of fraud or concealment in its adoption. Under such circumstances it is binding upon the appellants and all other members of the association, unless in conflict with the charter or the law of the land.

It is repugnant to neither. It is true the 8th article of the charter provides that withdrawing stockholders “ shall receive the amount of dues actually paid in by him or her, first deducting all fines and charges,” but makes no mention of interest or profits. But the Act of 1859 must be written with this charter, and it provides that a withdrawing stockholder shall 'receive in addition to the dues actually paid in “such proportion of the profits as the by-laws may determine.” Here we have a by-law which fixes interest at 15 per cent, on the amount paid in as the share profits. It is true the word “profits” is not used, but that is the plain meaning of this by-law. The association thought, and the Master lias found, that the shares at the time were worth that much. We have then under the Act of 1859 a clear right to withdraw, and a perfectly proper and legal by-law by which the withdrawing members went out, and took with them such share of the profits as was honestly believed to bo their due. So far as they are concerned they are out of the association ; they have no further claim upon it, nor have the appellants or the association any claim upon them.

The effect might have been foreseen by any one conversant with the practical working of building associations. A large number of borrowers and a few non-borrowers were left. Its remaining assets were affected by the shrinkage and losses incident to all property at that time. AH of this loss fell upon those who remained in. The association could, not wind up at the 102d meeting, as was at one time contemplated. The borrowing members now want their loans cancelled and their liens satisfied, although their stock has not matured. This would let them out without having paid up in full, and throw the whole loss on the non-borrowers. It needs no argument to show that this cannot be done. The appellants have no equity to make such a demand, nor have we any power to grant it. The owners of the free shares propose to pay up until the stock matures, and ask that the appellants shall do likewise. There is perfect justice in this. If the appellants made a mistake in not going out when they had the privilege of doing so, they cannot complain that others took advantage of the opportunity and have bettered their condition thereby. And even if, as alleged, they had not the means to pay up and cancel their loans, it is their misfortune, and it cannot be visited upon those who were more fortunate. It only demonstrates the truth of what was said in Watkins v. Building and Loan Association, 1 Out., 514: “It is much to be feared that many persons of slender means embark in such enterprises without a clear understanding of their practical working.”

The Master has found that there was neither fraud nor gross mismanagement in the affairs of the association. And had there been losses from such causes, it is difficult to see what relief the appellants are entitled to, either as against the withdrawing members who have legally and in good faith severed their connection with the association, or as against the association itself, in this contest over the remaining assets. That losses have been sustained, from whatever cause, does not entitle non-borrowers to throw such losses upon the borrowers, nor the latter to throw them upon the non-borrowers. Each class must meet its full share of the responsibility which it has assumed.

The foregoing covers all that we deem material in the case.

The decree is affirmed and the appeal dismissed at the costs of the appellants.