
    Thomas H. Groves, App’lt, v. John L. Acker et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth, Department,
    
    
      Filed April 12, 1895.)
    
    1. Trial — Request for verdict.
    Where both parties request the direction of a verdict, leave will not be granted to one of them to go to the jury, where he does not specify the questions of fact to be submitted.
    2. Contract — Corporations.
    A contract reciting that “ we, the undersigned officers of the ” association, agree to pay to the plaintiff, on withdrawal from the association, cash or a well-indorsed note, is a corporate, and not an individual, obligation. ‘
    Appeal from a judgment, entered on a verdict directed by the court in favor of defendants.
    
      David Hayes, for app’lt; John Desmond, for resp’ts.
   Lewis, J.

This action was brought to recover of the defendants moneys deposited by the plaintiff with the Brown Street & Jefferson Avenue Dime Permanent Savings & Loan Association, a domestic corporation, located in the city of Bochester. The amount claimed in the complaint was upward of $14,000, but the amount which the plaintiff upon the trial claimed to recover was the sum of $5,000. At the close of the evidence, plaintiff’s counsel asked for a direction of a verdict in his client’s favor for the sum of $5,000. His motion was denied, and he duly excepted. Defendants’ counsel then moved for the direction of a verdict for the defendants. This motion was granted, and the plaintiff duly excepted. Plaintiff’s counsel thereupon asked leave to withdraw his motion for a direction of a verdict, and to be permitted to go to the jury upon all the questions in the case. His motion was denied. He did not ask to have any specific questions of fact submitted to the jury. It was not, therefore, error to refuse his request. Mayor v. Dean, 115 N. Y. 556; 26 St. Rep. 375. The parties having requested the direction of a verdict in. their favor respectively, the questions of fact were for the consideration and decision of the court.

It was established by the evidence that the plaintiff had on deposit in a bank in the city of Bochester a considerable sum of money, which was drawing only four per cent, interest. The defendants, with others, were directors of the loan association mentioned. The defendant Spiess, being informed that the plaintiff had money in a bank, and that it was drawing but four per cent, interest, suggested to him that, if he would loan some money to the association, he would obtain a much larger rate of interest. He informed him that the association was paying to its subscribers some sixteén per cent, annually upon its shares, and that it would be- to his interest to withdhaw his money from the bank, and loan it to the association. By arrangement, the plaintiff met the directors of the association at a meeting held on the 3d day of January, 1888 ; and the plan of the business of the association was explained to the plaintiff by the directors. The plaintiff concluded to loan $5,000 to the association, and, thereupon, in the presence of the plainfiff, the following resolution was adopted by the board of directors :

“ On motion of John A. Spiess, it was agreed to accept the loan of $5,000 from Thomas H. Groves at four per cent, per annum until our next quarter. He shall, however, withdraw loan at any time in cash or association notes, not to exceed three mouths, with interest. At end of present quarter, if loan is not withdrawn, dividends shall be allowed as on ordinary stock.”

Plaintiff had informed the directors that he might desire to withdraw the money for use if he should engage in business. He paid into the association $5,025, and was given a passbook, such as is furnished subscribers to the shares of the association. It appears from an entry in his passbook, dated on the day the money was advanced, that the plaintiff had subscribed for 500 shares of the stock of the association. He was credited with having paid the $5,000, and the further sum of $25, that being the entrance fee on 500 share?, according to the regulations of the association. • The plaintiff having suggested, as stated, that he might desire to withdraw the money, there was written upon the last page of his pass-book an agreement upon which he relies to sustain his cause of action. The agreement was signed by the defendants, and delivered to the plaintiff, and is as follows:

“We, the undersigned, officers of The Brown Street and Jefferson Avenue Dime Permanent Savings & Loan Association, of Rochester, N. Y., hereby agree with Thomas H. Groves that we will pay him interest at the rate of four per cent, per annum on $5,000, paid by him into the treasury of said association, until the first day of March next, and also agree to pay him the cash on withdrawal or a well-indorsed note for not over three months, with use. , ■
“ Rochester, January 3, 1888.
“John L. Acker, President.
“ Frank Horn, Vice President.
“John P. Smith, Secretary.
“John A. Spiess, Treasurer.”

It is the contention of the plaintiff that this contract was the individual obligation of the defendants; that they had no authority to, and did not intend to, and did not in fact, execute,it as a corporate obligation; and that having called upon the society for his money, and it not being paid, he was entitled to recover of the defendant’s personally under this agreement.

The $5,000 was allowed by the plaintiff to remain with the association, without notice of withdrawal, until the year 1893. He made other deposits, with the association from time to time, aggregating $5,520. He was duly credited in his passbook with dividends on his shares, amounting in all to $8,740.48. No distinction was made in the entries in his passbook between these various deposits. At the close of the first quarter (March 1, 1889), the association paid to plaintiff $33.33. This was interest upon the $5,000, at the rate of four per cent, per annum. Letters from the plaintiff tó the association were read in evidence which tended to show that he understood that his dealings were with the association, and not with the defendants personally. The articles of association of the company provided that persons loaning money to the company might withdraw the same upon giving written notice of such intention. The plaintiff directed a notice to the secretary of the association on the 3d day of February, 1893, of his desire to withdraw the sum of $10,000, giving as a reason that he was about to open a store. He stated in the notice as follows:

“ My agreement with the association was that at any time I needed money, if the association did not have it, they would give me the association’s notes for two or three months, with interest, so I could use them at once. It is written in the back of my passbook, as you will remember,” etc.

At the time this notice was received, there were other applications for withdrawals on file. The articles of association provided that applications for withdrawals of money should be numbered and paid in the order in which they were received. The association neglected to respond at once to plaintiff’s call, and he commenced this action against the defendants.

The evidence fairly established that the plaintiff was aware when he loaned the money that the defendants were acting as the representatives of the association. There was no reason, so far as appears, why the defendant’s should assume any personal responsibility in the matter. They were directors and officers of the company, but they had no other interest in its affairs that was not common to all of the shareholders. In signing the instrument, the defendants affixed the title of their office to their signatures. There was no occasion for their so doing if they were to become personally liable. The resolution consenting to take the money is quite significant. Reading the resolution and the agreement together, it is quite apparent that the parties intended to provide that the plaintiff should be at liberty to withdraw his money at any time prior to the 1st of March following, without the formality of giving a written notice; but, if he permitted it to remain with the association thereafter, it was to be subject to the rules and regulations of the association as to the manner of its withdrawal. The only reasonable inference to be drawn from the evidence is that the plaintiff, in loaning his money and in receiving the contract, understood that he was dealing with the association, and that the defendants, in executing the contract, did so in their official capacity, without intending to be liable personally. The power to borrow money was given to the association by the statute under which it was organized. It could also obtain money by issuing shares of stock to its members, and receiving dues thereon. The following authorities sustain the construction given to this instrument .by the trial court. Mott v. Hicks, 1 Cow. 513; Babcock v. Beman, 11 N. Y. 200 ; Bank of Genesee v. Patchin Bank, 13 id. 309. 19 id. 312; Casco Nat. Bank v. Clark, 139 id. 307: 54 St. Rep. 590. The fact that the plaintiff was fully aware of the character in which the defendants assumed to act distinguishes, we think, this case from the authorities to which we are referred by the plaintiff’s counsel.

The judgment appealed from should be affirmed.

All concur.  