Building & L. Assn. Co. v. Desnoyers.

May 5, 1868 (65 O. L. 127), and amended three days later. 65 0. L. The original act as amended provided as follows:

173.

"Section 2. Such corporation shall be authorized and empowered to levy, assess and collect from its members such sums of money, by rates of stated dues, fines, interest on loans advanced, and premiums bid by members or depositors for the right of precedence in taking loans, as the corporation by its by-laws shall adopt; also, to acquire, hold, encumber and convey all such real estate and personal property as may be legitimately pledged to it on such loans, or may otherwise be transferred to it in the due course of its business; provided, that the dues, fines and premiums so paid by members or depositors of such corporation, although paid in addition to the legal rate of interest on loans taken by them, shall not be construed to make the loans so taken usurious; and provided also, that no person shall hold more than twenty shares in any such association, in his own right."

While this act was in force the case of Lucas v. Building & Sav. Assn. 22 Ohio St. 339, was heard by the Supreme Court.

"This was an action by the association to recover of Lucas money which he had as a loan from it as a member of the company. Interest was reserved and paid upon this loan exceeding 8 per cent per annum, the maximum rate allowed by the general law, but not exceeding the limits allowed by the statute under which the company was organized. This matter of alleged usury was set up as a defense, to the extent of the excess of interest paid over 6 per cent." The court held: "The interest reserved was no more than the law allowed."

In the case of State v. Building & Sav. Assn. 29 Ohio St. 92, the court recognized the right of the association to charge a premium in addition to the legal rate of interest, but held that "the only mode by which the premium on a loan can be fixed is by the bidding of the members or depositors for the right of precedence."

In the case of Licking Co. Sav. L. & Bldg. Assn. v. Bebout, 29 Ohio St. 252, 254, it appears that one Bebout had received from the association the sum of $410, bidding $390 premium for precedence in taking the loan and had given the association a mortgage to secure the payment to it of the full sum of $800. He made payment of monthly installments of dues and interest for some time and then died. His administrator elected to return the $410, and tendered the amount, less amounts previously paid in dues and interest, but the association refused to accept it. Thereupon the administrator commenced suit to cancel the mortgage, the common pleas court ruled in his favor and the district court did the same. Judge Gilmore, in deciding the case said:

Cuyahoga County.

“If the loan in this case consisted of the cash received on taking it, which was $410 exclusive of the premium bid for precedence, which was $390, the decree of the district court was correct, and must be affirmed. If, on the other hand, the loan consisted of the aggregate of these sums, i. e., $800, the decree was erroneous, and must be reversed." The decree was reversed.

In the case of Bates v. Savings & L. Assn. 42 Ohio St. 655, the court defined the premium which should not be construed to make the loan usurious as one bid by a member or depositor for the right of precedence in taking a loan, at a competitive sale of such right. This case was decided in 1885 and the following year the law was amended by leaving out the requirement that the premium must be bid, leaving it to the association to provide in its constitution and by-laws regarding the payment of premiums. 83 O. L. 116. Again, in 1891, the law was amended and the provision now known as Sec. 3836-3 Rev. Stat. and heretofore quoted, was adopted. 88 O. L. 469. In the present law such associations are authorized to charge such dues, fines, interest and premiums on loans made, or other assessments, as may be provided for in the constitution and by-laws. Since the passage of this act, the powers of such corporations and the rights and liabilities of their members thereunder, have been reviewed by the Supreme Court, and the following quotations are from an opinion by Chief Justice Minshall in the case of Eversmann v. Schmitt, 53 Ohio St. 174 [41 N. E. Rep. 139; 29 L. R. A. 184; 53 Am. St. Rep. 632], decided in 1895:

"Mutuality is the essential principle of a building association. Its business is confined to its own members; its object being to raise a fund to be loaned among themselves, or such as may desire to avail themselves of the privilege. This is done by the payment, at stated times, of small sums, in the way of dues, interest on loans and premiums for loans. Each shareholder, whether a borrower or nonborrower, participates alike in the earnings of the association, and alike assists in bearing the burden of losses sustained.

"A borrower before his stock is paid up, receives from the association the par value of his shares, in the nature of an advance loan. For this, he agrees to pay the premium, if any, for the privilege, the interest on the money advanced, subject to abatements to be made at stated times, and the dues on his stock until it matures. In other words, he agrees to keep up and pay out his stock, as if he were a nonborrower, in consideration of the amount being advanced to him before that time. Hence, the borrower remains a stockholder, and participates in all the

Building & L. Assn. Co. v. Desnoyers.

privileges and benefits of a stockholder; has a voice in the management of the association and participates in its earnings. The latter go toward discharging his obligations arising on the loan, and to shorten the time in which he will be fully discharged therefrom. For, taking all losses into account, whenever the shares of the borrower have reached their par value by the payment of dues and the apportionment of earnings, the loan is liquidated and he ceases to be a member, as he would, if he had not borrowed at all. In other words, with his shares paid up, he discharges his obligations as a borrower. And the exact test of his right to call for a cancellation of the mortgage given to secure his obligations as a borrower, is the inquiry, whether he would have been entitled to receive from the association the par value of the shares on which the loan was made, had he not become a borrower.

"In this case Mrs. Schmitt subscribed for twelve shares, and received from the association their par value, $3,000, as an advanced loan, at a premium of $240. She paid the premium, and agreed to pay the dues thereon, $6 per week, and interest at the rate of 6 per cent, subject to an annual abatement, 'until such time as the weekly dues paid and dividends declared and unpaid shall amount to the sum of $3,000,' and all 'assessments' that might be levied upon her as a member of the association. It is wholly unlike a savings society where the borrower is not a member or otherwise interested in its business. Having no voice in the management, nor interest in the earnings of the society, the borrower and it sustain the simple relation of debtor and creditor. Here, as shown, the borrower is also interested as a creditor. The loan is for no definite period of time. It depends upon the management of the association, in which he continues as a member and has a voice."

In that case, the court held the defendant to the payment not only of dues, interest and premium on her loan, but required her to pay in addition thereto as assessment of nearly $1,000 made by a receiver of the association after its insolvency, as her share of the losses of the association.

From the foregoing authorities it appears that the very question here involved, to wit, the constitutionality of the law authorizing building and loan associations to charge premiums in addition to the legal rate of interest, has been many times incidentally, if not directly, before the Supreme Court, and yet the law has stood upon the statute books of this state and been enforced for more than thirty-six years. Indeed, some of the reputed cases were in the nature of quo warranto cases in which the associations pleaded the statute as their warrant for charging

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premiums, and the Supreme Court refused to oust them from such franchise, though it saw fit to regulate them in its exercise to conform to the strict letter of the law.

Believing the decisions of this state recognize the validity of the law, we have deemed it unnecessary to consider the many authorities cited to us from other states in which the constitutionality of similar statutes has been sustained.

It may be remarked that our usury laws are statutory. Their application may be extended or limited at the pleasure of the legislature. In recent years many of the states have repealed all laws regulating the rate of interest which may be contracted for.

In Mykrantz v. Building & L. Assn. supra, the able judge delivering the opinion concedes that the statute here in question does not violate Sec. 26, Art. 2 of the constitution, which requires that all laws of a general nature shall be uniform in operation throughout the state, nor Sec. 1, Art. 13, which prohibits special acts granting corporate powers. He says, page 253:

"This law, whatever else may be said about it, is a law of a general nature and is uniform throughout the state. It applies to all building and loan associations in whatever corner of the state they may be found. It is not granting, as we view it, a special or corporate power by special act of legislation.

He says, page 254, it "gives special privileges to a certain class of people, and to a certain class of corporations." That is true of all corporation laws, they grant special privileges to classes of corporations by which the classes of people who are members thereof, benefit.

Railroad corporations enjoy the right to condemn private property; this is a special privilege enjoyed by no individual; and so the special privileges enjoyed by corporations and their stockholders might be enumerated at great length. We are not in harmony with the conclusion reached in Mykrantz v. Building & L. Assn. supra, and therefore affirm the constitutionality of the law.

Decree for plaintiff.

Hale and Marvin, JJ., concur.

Greenberg v. Murphy.

LANDLORD AND TENANT-NOTICE.

[Cuyahoga (8th) Circuit Court, June 20, 1904.]

Hale, Marvin and Winch, JJ.

SAMUEL GREENBERG V. TIMOTHY MURPHY.

TENANT MOVING OUT UPON NOTICE TO VACATE, NOT EVICTION. Before the expiration of the term under a lease, a landlord served upon the tenant a notice in writing to vacate the demised premises within three days, or legal measures would be taken to obtain possession, and the tenant thereupon moved out without protest: Held, no eviction.

ERROR to Cuyahoga common pleas court.

J. F. Clark, for plaintiff in error.

Scott & Parks, for defendant in error:

To constitute an eviction, there must be some act of the landlord that compels an abandonment of the property; notice to vacate or demand for possession is not an eviction. Wood, Landl. & Ten. 481; 11 Enc. Law (2 ed.) 466, Par. 4; 2 McAdam, Landl. & Ten. 407, 418.

The statutory notice to vacate is only a preliminary step, it may or may not be followed by a judgment of eviction, and till there is such judgment, the tenant is in no way disturbed in his possession.

WINCH, J.

The error complained of in this case is the action of the trial court in sustaining a general demurrer to the amended petition. Said amended petition reads as follows:

"Now comes the plaintiff and by leave of the court first had and obtained, files this, his amended petition herein, and for his cause of action, says that prior to and upon September 1, 1903, and while the said plaintiff was a tenant of the said defendant and was occupying the premises hereinafter mentioned and described, the said defendant for a valuable consideration, agreed to and with the said plaintiff, that he would further lease and let to the said plaintiff, the said premises then being occupied by plaintiff, and which premises have been so occupied by the plaintiff for two years prior thereto, for a further term of one year after the expiration of the then term under which the plaintiff was then occupying the said premises, to wit, No. 2336 Broadway, in the city of Cleveland, Ohio. That in pursuance and as a result of such promise and agreement so made by said defendant with said plaintiff as aforesaid, the plaintiff relying thereon that he would have the said premises above described for another year, incurred expenses by way of repairs upon the