The Irish standard., 1895-07-20

L See. 4sS OF Art. 8 prOvid les, Interest at
the rate OF s per cent per annum on the,
amount received, payable monthly In adj
vance shall commence from the accept
ance by the manager Of the security
offered. = NJ ss. N y M
The following mendments TO these by
laws were made in 1881 !: ..; ssss
/. Resolved, That we adopt nine years
as a basis instead Of eight. sssf..
2. Resolved, That hereafter our annual
report be made out giving the cash value
Of stock, instead Of a book or fictitious
value, ss5 VI u. U Il 81 q
81 s.. Resolved, That with drawing mems
bers who shall not have borrowed be al
lowed seven (D per cent interest on their
dues from the twelfth to the thirty sixth
monthly meeting, and after The thirty
sixth monthly meeting, they be allowed
the net.earnings less four per cent OF the
net earnings. 5 h;
4. Resolved, That in settling with
members DESTROYS OF paying back their
Loans, they be charged with the total
amount Of loan and premium, and credit
ed with one-ninth of the premium for
each whole unexpired year, up to the
ninth year, together with dues and in
terest. or profits on said dues, as the
case may be. .s.st5
5. Resolved, That a rebate of one
ninth Of the premium be allowed, to bor-
rowing members, for each year expired
Of the series in which they loan and that
said rebate, instead Of being deducted
from the bonus as heretofore, be placed
to the credit Of said members until said
series natures or loan paid back
The original bylaws In no way re-
ferred to a basis of eight years, and
there is nothing in either the original
or amended bylaws except as above
quoted, by which it can be determined
what is meant by basis Of eight years
or Of nine years referred to in amendment
1, or which throws any light on the
meaning Of Amendments and b.
Having nothing before us 10 the Fitz-
gerald case but these bylaws and a bond
and mortgage which provided for the
payment Of interest on the premium, bid
as well as on the money loaned, (as did
the bonds and mortgage in. this case)
we. hold that under Amendment 5, time
earned the premium at the rate OF l-9
for each full year Of the loan, but that
the borrower should be charged with In
terest each year on all Of the premiums
not SO earned.
But from the evidence in the case at
bar, it appears that the association and
it's members by their uniform course OF
Idealing, have always construed Amend
ments and 5 to mean that the borrower
must pay the premium without interest;
at the rate Of 10 of the premium for
each whole year or fraction thereof for
which he has the loan, and that he must,
be credited with 1-9 of the premium for
- M 1r>hr Y,nf: avParf1
nine, during which he. does not have
the loan. !. The Amendment S applies to
cases where the borrower has held his
stock for year or more before he takes
q loan in which case he is credited with
10 of the premium for each full year
during which he so held his stock before
he took the loan, and that Amendment 4
applies to cases where the borrower pays
back his loan a year OF more before the
end Of years, in which case he is credit
ed with 10 of the premium for each. full
year from the time he so pays back the
loan to the etld Of the 8 years. Thus If
his stock was 2 years old when he took
his loan and he held it years and paid
it back, he would be required to pay
40 Of the premium bid, and would be
credited with SO of the same, 20 for the
the time after he paid it back. y,
This evidence of the custom and course
OF dealing between the association and
its N bers, is wholly uncontradicted,
and plaintiff does not pretend that he
did, not know and fully understand that
such was the uniform custom and course
of dealing. 4
Under these circumstances the findings
and order for judgment are against the
evidence When an ordinary contract
between two individuals Is ambiguous,
the practical construction of it by the
course of dealing under it between the
parties, will control, First National Bank
VS.. Jaeger Al MINI. 30S. But that prin-
chile has much stronger application
to case like this.
These amendments to the bylaws were
ambiguous, but the parties have by their
uniform course of dealing under them
given them a practical construction
which must control. ~,
Neither are we prepared to say that
even il such uniform well defined and
well understood course Of dealing was oil
rectlv in conflict with .by-law that were
NOT ambiguous, it would not supersede
Or control the bylaws at least. as against
an action to reform a contract which
was. and which the parties understood
tn be in accord with such course OF deal
ing, though in conflict with such bylaws.
I But it. is not necessary to decide that
question in this case.
The contention that defendant is not
a mutual building and loan association
is disposed Of in the Fitzgerald case.
The order appealed from IS reversed
and a new trial granted. e@
-. CAVITY, J.
N The case Of Hughes vss the same de-
PENDANT was argued at the same time,
,nynlres The same question and the evil
dence OF the course Of dealing between
the association and its members is more
f,,l1 and complete In this case the trial
court held that such course Of dealing
gaye "a practical construction to said
amendments to the bylaws, which COM;
struction should control, and decided the
case for the defendant.
,s From the Judgment entered therein
plaintiff appeals.
Il FOR the reason in the above opinion
in the. case. Of McDonough VS.. the same
defendant, the judgment is affirmed
/ a. 7.15s Il, CAVITY, J.
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