
    Marr et al. v. Starner et al.
    (Decided March 9, 1934.)
    
      Messrs. Gary, Estell $ Kuhn, for plaintiffs in error.
    
      Mr. G. E. Huston and Messrs. Garver é Badger, for defendants in error.
   Lemert, J.

This cause comes into this court from the Common Pleas Court of Holmes county, Ohio, wherein a jury was waived and the cause therein submitted to the court. The. Court of Common Pleas having found in favor of the defendants, and a motion for a new trial being overruled, error is prosecuted to this court.

To briefly state the cause of action submitted to the court below, and for our consideration on reviewing this case, we will say that plaintiffs, James Marr and Edith Marr, for their cause of action allege that they are husband and wife, living in Millersburg, Ohio, and that C. S. Starner and E. D. Buker are receivers of the Deposit Building Savings & Loan Company; that prior to the appointment of said receivers, and prior to April 1, 1931, the plaintiffs were owing the said loan company a debt of more than $2,500, secured by a first mortgage on their real estate in Millersburg, Ohio.

On April 1, 1931, plaintiffs placed in said loan company the sum of $500, and on May 4, 1931, the sum of $100, making a total of $600. These said amounts were delivered to W. A. Miller, as secretary of the loan company, as a safeguard for plaintiffs, so that in the event that the plaintiffs for any reason should be unable to pay their monthly assessment, or meet the payment on their said mortgage, these funds should and would pay said monthly payments; that the plaintiffs filed their claim with the receivers to have the said $600 credited to their mortgage indebtedness and that said receivers rejected the claim.

Plaintiffs further allege that at the time of delivery of the said $600 to Miller as secretary, it was agreed between plaintiffs below and Miller that at any time plaintiffs desired to pay $600, or any other amount, into said loan company as a safeguard or guarantee, said sum should be credited to the plaintiffs ’ mortgage indebtedness, and that it should be understood that said sum was only placed with the loan company for the purpose of a guarantee by the plaintiffs, and as a deposit for the safety of plaintiffs, that they would have sufficient money on deposit at all times to make the monthly payments on the mortgage indebtedness, and that the amounts so paid to the loan company were not to be withdrawn by the plaintiffs, but were to be applied as payment on their said mortgage indebtedness at any time plaintiffs desired.

Plaintiffs prayed for an order directing the receivers to credit said $600 on their mortgage indebtedness; the receivers filed an answer to said petition, admitting their official capacity, and that plaintiffs owed the loan company prior to April 1, 1931, a debt of $2,500, secured by first mortgage; that the plaintiffs filed their claim to have the $600 credited on their mortgage indebtedness; and that the same was rejected; and they denied the rest of the allegations of the petition.

"We have carefully examined the record in this case, and the testimony is very short, there being the testimony of only three witnesses, James Marr, one of the plaintiffs, Edith Marr, his wife, on behalf of the plaintiffs, and W. A. Miller, on behalf of the defendants.

From a careful examination and analysis of this record and the opinion of the court, we have to say that the law cited by the court below in his opinion is good law in a proper case, but that it cannot be controlling in the instant case for the reason that the facts will not warrant it.

To our minds the record clearly and distinctly shows that this money was placed in the building and loan company for a specific definite purpose. There is no dispute between the plaintiffs and the defendants in this record; the fact is that the record shows that Miller corroborates the plaintiffs in this record.

Whether we consider the money placed in the building and loan company as a deposit, or whether it be known as running stock, the fact still remains that it was placed or left with the bank for a distinct and definite purpose.

The record shows that the money when left at the bank was received by a clerk in charge, and placed in a, certain book, as shown by plaintiffs’ Exhibit 1. This exhibit does not show that any stock was subscribed for or purchased by the plaintiff Marr. The evidence of Marr, plaintiff, and Miller, defendant, shows exactly and specifically the purpose for which this money was left.

According to the constitution and by-laws of the Deposit Building Savings & Loan Company, article No. 4 provides:

“Any person upon subscribing for or in any way becoming the owner of one or more shares of capital stock of this company shall thereby become a full member thereof, and as such shall be entitled to all benefits and privileges and subject to all liabilities and duties of membership as prescribed by the Constitution and By-Laws of the Company and the Laws of Ohio.”

So, that a person could only become the owner of any share or shares, of stock by either subscribing therefor or by some act or agreement.

The record is silent that the plaintiff at any time ever subscribed for or performed in any way any act whereby he became the owner of any stock. The fact that the clerk who received this money placed it in a certain book without the knowledge of the plaintiff Marr is not sufficient to hold Marr as a stockholder oi the owner of any running stock.

To our minds the fact' that the money left with the bank was not left really as a deposit, or by one as the owner of so many shares of stock, or running stock, is borne out by the fact that the same did not draw or produce any interest. No interest was expected by Marr, for the reason that it was left with the bank to be applied upon his mortgage indebtedness.

To hold in this case that Marr is the owner of so many shares of running stock without subscribing therefor, or performing some act whereby he would become the owner or holder thereof, would to our minds be unfair, unequitable and unjust.

It therefore follows that the finding and judgment of the court below will be reversed, and a finding and judgment entered for plaintiffs below, as prayed for in their petition.

Judgment reversed.

Sherick, P. J., and Montgomery, J., concur.  