Hillers v. Local Federal Savings & Loan Ass'n ( 1951 )

ARNOLD, C. J.

Albert Heitmann died intestate on September 2, 1930, owning three certificates representing 45 shares of stock, of the par value of $4,500, in the Local Building & Loan Association. C. S. Young was appointed administrator of his estate by the county court of Canadian county. On September 25, 1931, the county court entered a final decree setting over to the heirs, brothers and sisters of the decedent, in equal parts, said shares of stock and other assets. On January 20, 1932, Young was discharged as administrator. While he was acting as such administrator, Young made a demand upon the defendant for withdrawal and for payment of the amount due on the certificates of stock and submitted to it an order by the county court to convert said stock into cash, but because of the economic depression and the rules governing building and loan associations, the defendant did not then make payment but suggested a plan of payment which would be followed. On August 17, 1934, Local Building & Loan Association, not actually knowing that Young had been discharged as such administrator, issued to him a check for $2,728.13 as partial payment on the stock. On January 28, 1935, upon surrender and cancellation of the stock certificates, which had been in Young’s possession until the time of cancellation, it delivered to Young, payable to him as such administrator, two checks, one for $299.32 and one for $627.60, in payment of the balance due on the stock. Young deposited these checks in the bank at Wheatland and testified that he wrote out checks dividing the amounts so collected among the five heirs of the decedent and that the banker was to mail them to the respective parties. The record is silent as to what became of the last named checks, but the heirs did not receive the money due them. After these checks were issued, the Local Building & Loan Association was converted into a Federal institution and became the Local Federal Savings & Loan Association.

Two of the heirs lived in Iowa and three lived in Germany. One of those in Iowa died. On December 19, 1941, the four living heirs and the administrator of the estate of the deceased heir filed a suit against the Local Federal Savings & Loan Association to recover the amount due on said certificates of stock. That suit was dismissed without prejudice on May 6, 1943, and on May 5, 1944, the present action was filed. As one ground of defense, the defendant relied on the statute of limitations.

The plaintiffs plead and argue that it was a fraud upon them for defendant to pay the amount due to Young after he was discharged as administrator, that they did not discover the fraud until within two years prior to the commencement of the first action; that 12 O. S. 1941 §95 (3) is the applicable statute of limitations; that their action is not barred since their cause of -action accrued less than two years prior to the filing of the first action, and that since that action failed otherwise than on its merits the present action was timely filed under 12 O. S. 1941 §100.

After the case was tried, the cause was dismissed as to the three heirs residing in Germany, presumably because as alien enemies they were prohibited from prosecuting a suit in the courts of this country.

Judgment was rendered for the defendant, and from that judgment Annie Hillers, one of the heirs residing in Iowa, and L. F. Kruse, administrator of the estate of Henry Heitmann, deceased heir who also resided in Iowa, have perfected this appeal.

The pertinent facts in this case can be summarized as follows:

Albert Heitmann owned 45 shares of defendant’s stock;

He died September 2, 1930;

C. S. Young was appointed administrator October 4, 1930;

On May 25, 1931, he demanded redemption of the stock by defendant and delivered copy of letters and copy of order of court authorizing the conversion of the stock to cash;

The building and loan company acknowledged the obligation and suggested a plan of future payment which was acceded to by the administrator and followed by it;

His final account was approved September 25, 1931, and he was discharged January 20, 1932;

Stock certificates were surrendered and final payment made thereon to administrator January 28, 1935;

Plaintiffs brought suit December 19, 1941.

The cause of action for the establishment and enforcement of the liability of the building and loan company to the representative of the estate of Heitmann or the heirs of his stock is statutory and accrued when suit could have first been brought against the defendant under and by virtue of the statute. Baker v. Tulsa Building & Loan Ass’n, 179 Okla. 432, 66 P. 2d 45.

Section 9800, of O. S. 1931, in force from the time of decedent’s purchase of the stock until and after his death provides in part:

“Upon the death of a stockholder, his legal representative shall be entitled to receive the full amount paid in by him and legal interest thereon, first deducting all charges that may be due on the stock.”

The building and loan company is a special sort of financial institution that issues stock to those who make regular payments of money to it for the purpose of investment. In some respects it is much like a partnership. Provision is made by law and the by-laws of the company for withdrawal by a stockholder. In withdrawing the stockholder is bound by applicable law and the rules of the company. The Legislature, either thinking that the law and the rules of the company did not apply to a stockowner by inheritance or to the representatives of an estate or desiring to fix a different method of withdrawal, passed the foregoing statute. It surely was not the intention of the Legislature to subject the building and loan company to a suit immediately after the death of a stockholder and without demand to it. The building and loan company should be given an opportunity to meet its statutory, fixed obligation before it is sued. Suppose the foregoing statute provided that in case suit was brought a 25 per cent attorney’s fee might be allowed; would we then say that suit could be brought immediately upon the death of the stockholder and without demand upon the company for payment? The building and loan company is obliged to and does keep very accurate records of all monies received by it for investment and can very easily and accurately at any time figure its statutory liability upon the death of one of its stockholders. Such claims as here presented are never stale claims and a statute of limitation should not be applied on such claims unless it is imperative to do so.

The foregoing statute fixing the liability of the building and loan company to the representative of the heirs of a stockholder upon his death, though creating a sort of creditor-debtor relationship, actually creates in law a cash deposit of the money paid in by the stockholder during his lifetime with interest thereon. Like money deposited in a bank, this amount of money is subject to withdrawal on demand. The relationship between the building and loan company and the representative of the heirs or the heirs as stockowners, as distinguished from stockholders, is like that of a partnership or trust relationship. No statute of limitation would begin to run on the claim for this fixed statutory liability until a demand for payment is made and refused unconditionally. Demand was made in this case but payment was not refused- — ■ instead of refusing payment the company, for various reasons, suggested that payment would be made in order of demand in like cases which amounted to an acknowledgment of the validity of the claim. In this connection, it is asserted by counsel for the company that “Local wrote C. S. Young on May 11, 1931, advising that each stockholder would be paid in the order in which his notice was received to withdraw funds because of the existing period of depression and readjustment.” The evidence conclusively shows that the method and time of payment suggested by the building and loan company was acceded to by the administrator. The legal effect of this was to withdraw the demand for immediate payment, leaving the parties in the same relationship that existed immediately after the death of the stockholder or that created by the suggested plan of payment which was attempted to be followed by the building and loan company. The applicable statute of limitation that would have started running upon demand and unconditional refusal to pay never began to run.

The building and loan company contends that it had no interest in the Heitmann estate and would therefore not be chargeable with notice of the discharge of Young as administrator or the settlement of the estate. This argument is made to bolster up its theory that Young was the agent of the heirs in receiving payment because he had the stock certificates which it says constituted apparent authority to accept payment. As was hereinbefore pointed out, the building and loan company paid Young relying on the assumed fact that he was still the administrator and as such was entitled to receive payment. It is true that one who clothes another with apparent authority to do an act will not be heard to deny the authority, though it did not in fact exist, if the adverse party had relied on the indicia of authority to his detriment. Here, however, the building and loan company carelessly assumed that Young was still administrator and for that reason was the representative of the estate and it paid on this basis. No act of the heirs produced that assumption on the part of the building and loan company. The necessary elements of estoppel do not exist under all the circumstances.

Conceding for the sake of argument, but without deciding, that laches may be a defense in a law action under certain circumstances, no claim has ever been asserted for interest on the fixed statutory liability. The company suffered no detriment from the long delay in bringing this action and cannot disclaim its statutory liability because of laches. Laches is delay which works a disadvantage to another and causes a change of condition or relation during the delay which is detrimental. Oklahoma City Federal Savings & Loan Ass’n v. Swatek, 191 Okla. 400, 130 P. 2d 514.

The first time that a demand was made to pay and same refused was when the lawyer for the heirs demanded payment just before the suit forerun-ning this one was filed. No statute of limitation had started running before that time. That suit was filed December 19, .1941, The present suit was filed within one year of the dismissal of the former suit without prejudice and failure otherwise than on the merits.

Good faith is generally regarded as requiring the exercise of reasonable diligence to learn the truth, and, accordingly, estoppel is denied where the party claiming it was put on inquiry and had available means of ascertaining the true state of facts. He who claims the benefits of an equitable estoppel on the ground that he has been misled through the conduct of another must not have been misled through his own want of reasonable care. Bradley v. Andrus, 107 F. 196, 53 L.R.A. 432. Ordinarily, the courts refuse to give effect to an estoppel where the parties were equally well informed as to the essential facts or where the means of knowledge were equally open to them. Oklahoma v. Texas, 268 U.S. 252, 69 L. Ed. 937, 45 S. Ct. 497. A distinction is sometimes made as to the duty of exercising diligence to learn the truth between cases where the claim of estoppel is based on mere silence or inaction, as here, and those where it is based on affirmative representation or conduct, the view being taken that the availability of a means of knowing the true state of facts, as by reference to the public records, bars a claim of estoppel in cases of the former class. Eltinge v. Santos, 171 Cal. 278, 152 P. 915; Davidson v. Jennings, 27 Colo. 187, 60 P. 354, 48 L.R.A. 340, 83 Am. St. Rep. 49; Cox v. Simmerman, 243 Ky. 474, 48 S. W. 2d 1078; Williams v. Reid (Mo.) 37 S. W. 2d 537; Crest v. Jack, 3 Watts (Pa.) 238, 27 Am. Dec. 353; Peterson v. Bergman Cabinet Mfg. Co., 145 Wash. 664, 261 P. 381, 55 A.L.R. 989; but not those in the latter class; Graham v. Thompson, 55 Ark. 296, 18 S.W. 58, 29 Am. St. Rep. 40; Westerman v. Corder, 86 Kan. 239, 119 P. 868, 39 L.R.A. (N.S.) 500, Ann. Cas. 1913C, 60. See, also, Pierce v. Jones et al., 182 Okla. 515, 78 P. 2d 677; Martin Coal & Coke Co. et al. v. Brewer, Rec., et al., 185 Okla. 169, 90 P. 2d 653.

Reversed, with directions to enter judgment in conformity with the views herein expressed.

WELCH, HALLEY, JOHNSON, and O’NEAL, JJ., concur. LUTTRELL Y.C. J., and CORN, GIBSON, and DAVISON, JJ., dissent.