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fixed by the arbitrary demand of the corporation, the premium paid was usurious.

But in the case at bar the evidence clearly shows that the loans to McDonnell were made at public meetings of the board held for that purpose and that he was present in person upon each occasion, and was the highest and only bidder for the $3,000 loan upon which he bid a premium of fifteen per cent, and for the $13,000 loan a premium of fifteen and one-half per cent. While McDonnell testified with respect to the firstnamed loan, that Brady, the secretary of the association, told bim that he could get it, but that he would have to pay pretty high for it, about fifteen per cent, and with respect to the $13,000 that Brady told him he would have to pay fifteen and one-half per cent premium upon it, and in consequence of these statements he bid the amount suggested by Brady, this cannot be construed into an agreement between the association and McDonnell by which he was to have the loans at the premiums bid by him, but was merely the expression of opinion by Brady as to the amount of premium he, McDonnell, would have to pay if he secured the loans. There is nothing disclosed by the record to justify the conclusion or inference that McDonnell was constrained by any arbitrary action of the defendant association or its officers in bidding for the loans or either of them, unless it was by the ordinance fixing the minimum rate of premium at ten per cent. It has been held by the courts of appeals in numerous cases arising under the act of 1889, that if the loan was made in the manner provided by that statute, it was a valid loan, though the premium, interest, etc., aggregated more than a lawful rate of interest. But if the statute was disregarded it would not protect the loan from the charge of usury, and that where the association had a fixed minimum premium at which they made loans, that was an act in disregard of the statute and the loan usurious: Brown v. Archer, 270 62 Mo. App. 277; Moore v. Cameron Building etc. Assn., 74 Mo. App. 468; Barnes v. Missouri etc. Bldg. Assn., 83 Mo. App. 466; Clark v. Missouri etc. Assn., 85 Mo. App. 388; Fry v. Missouri etc. Bldg. Assn., 88 Mo. App. 289; Cover v. Missouri etc. Assn., 93 No. App. 302; Arbuthnot v. Brookfield etc. Bldg. Assn., 98 Mo. App. 505, 72 S. W. 132.

But the loans in the case at bar were made under the present statute and are governed by section 1362 of Revised Statutes of 1899, which does not require bids for money offered to be loaned to be made at competitive bidding in open meeting

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called by the directors, but provides that loans shall be let to "shareholders who shall bid the highest premium.” That McDonnell as a stockholder was entitled to bid for the loans, and if the highest, or the only bidder, entitled to the loans, we think clear: Ruppel v. Missouri etc. Assn., 158 Mo. 613, 59 S. W. 1000. But the question is, whether the by-law fixing a minimum premium at ten per cent, which defendant association admits in its answer was in force at the time the loans. were voted, made them subject to the defense of usury, though the premiums actually received were in one instance only five, and in the other only five and one-half per cent in excess of the minimum rate prescribed by the by-law? The authorities upon this feature of the case are not in harmony, but in this state the rule seems to be that such a by-law is inconsistent with the statute which requires free and open competition. Under this by-law the bidder was compelled to pay more than ten per cent, while there could have been none under that rate because of the arbitrary minimum rate fixed by by-law. While the case of Arbuthnot v. Brookfield etc. Bldg. Assn., 98 Mo. App. 505, 72 N. W. 132, was under the law of 1889, what was said with respect to a by-law of the association fixing the minimum rate of premium at sixteen per cent is directly in point in this case. It is as follows:

“Defendant had a by-law declaring that the premium to be received for preference of loans should not 271 be less than sixteen per cent; that when this loan was let to plaintiff the secretary of the association who cried the bids, opened the auction by announcing that no bid would be received under sixteen per cent; that thereupon bids were made over that rate until the loan was sold to plaintiff at twenty-five and one-half per cent. In our view, that manner of letting the loan gave effect to the objectionable by-law, and was in the face of the statute directing free and open competition. The by-law was enforced by the opening declaration of the secretary. The bidders were compelled to bid more than sixteen per cent, and, while there was competition above that rate, there could be pone under that rate. It is manifest that there can be no fair and free letting of a loan, when a certain rate is determined upon beforehand, under which no loan would be made. The by-law arbitrarily fixed upon sixteen per cent as the rate, unless the association could get more. The by-law itself fixed a usurious rate, and, being fixed, it was not protected by the etatute. When the association adopted the by-law, and en

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forced it through the act of its secretary, it was demanding usury in a manner unauthorized, and therefore it placed itself outside the protection of the statute; and the fact that it got more usury than it demanded in the by-law does not relieve the transaction of its illegality. We are cited to Endlich on Building and Loan Associations, section 411, but the citation does not support defendant. That author says that if the premium exacted was the result of fair competition, without reference to the illegal by-law, 'no bid being refused because below the established minimum, nor raised for the sole purpose of covering it, the borrower has no cause of complaint. But in this case, while no bid was refused for the reason that it was below the rate named in the by-law, yet the bidders were advised at the outset that they would not be permitted to bid below that rate."

Defendants contend that even if the premiums arbitrarily fixed, and charged arbitrarily with reference to the ininimum premium by-law, yet the record does not disclose that the premium, together with the interest, could exceed the rate which McDonnell and defendant association could agree upon. But we are unable to concur in this view. The bonds in the case in hand drew, according to their provisions, .six per cent interest per annum, which in this state is the legal rate, but which may be made eight per cent by contract. And so the former is generally termed the “legal rate," and the latter, the “contract rate.” The statute (Rev. Stats. 1899, sec. 3709) provides that “usury may be pleaded as a defense in civil actions in the courts of this state, and upon proof that usurious interest has been paid, the same, in excess of the legal rate of interest, shall be deemed payment, shall be credited upon the principal debt, and all costs of the action shall be taxed against the party guilty of exacting usurious interest, who shall in no case recover judgment for more than the amount found due upon the principal debt, with legal interest, after deducting therefrom all payments of usurious interest made by the debtor, whether paid as commissions or brokerage, or as payment upon the principal, or as interest on said indebtedness." Defendant claimed, at the argument, that, as eight per cent may be legally contracted for, the statute when using the expression “with legal interest," meant the interest stipulated in the contract, provided it was within the rate which could be legally contracted for. We think not. The statute, in using the expression "legal rate of interest,"

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meant the statutory rate which obtains in the absence of a contract. Usury avoids the contract as to interest, and the statute disposes of it by giving the creditor the statutory rate, and applying the overplus toward the payment of the principal debt: Arbuthnot v. Brookfield etc. Bldg. Assn., 98 Mo. App. 505, 72 N. W. 132.

In this case, as we have said, there was an illegal by-law 273 fixing a minimum premium of ten per cent. There was no written application for either of the loans, and the only agreement in writing to pay interest is to be found in the bonds. So that any premium paid by McDonnell, however small, was usurious under the facts disclosed by the record. The question then presents itself as to how these matters are to be adjusted. As was said in Laidley v. Cram, 96 Mo. App. 580, 70S. W. 912: "If the premiums are treated as interest on the assumption that they were fixed arbitrarily instead of by free competition, the total rate per year of interest charged cannot be calculated on the facts before us; for, to do that exactly, the loans would have to run until the stock matured, while, to do it approximately, testimony is needed as to the time when it will probably mature”: Robertson y. Association, 10 Md. 397, 69 Am. Dec. 145; Association v. Flach, 1 Cin. Sup. Ct. Rep. 468; Hagerman v. Ohio etc. Assn., 25 Ohio St. 186.

Plaintiffs challenge the constitutionality of the building and loan association statute upon the ground that said act, and particularly that section which provides that the premiums bid in accordance with the requirements of the statute, shall not be considered as interest or render the loan usurious, violates that provision of the constitution which prohibits the legislature from passing "any local or special law fixing the rate of interest." But as we have indicated that the premiums bid were not in accordance with the requirements of the statute and therefore illegal, it is unnecessary to pass upon the question presented upon this feature of the case, and we must decline to do so.

Plaintiffs complain in their brief that the trustee in the deeds of trust was an incompetent person to discharge the duties of those positions because an officer in the association, but there is no merit in this contention. Nor is the assertion that he was not present at the time 274 of the sale of the property under the deeds of trust, sustained by the record,

There is no merit in the contention of plaintiffs that the sale of the property should be set aside upon the ground of

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inadequacy of price. It is a well-established rule in equity that mere inadequacy of price, in the absence of other considtrations, is no ground for setting a sale aside, unless it be so great and unconscionable as to shock the moral sense.

Bispham in Principles of Equity, sixth edition, section 219, says: “Ordinarily, inadequacy of consideration will be insufficient to set a bargain aside, or to justify a refusal to enforce its specific performance. Where, however, the inadequacy is so great as to 'shock the conscience (which is the phrase usually employed) contracts may be rescinded. .... A case, therefore, of fraud from inadequacy of consideration, pure and simple, and unmixed with any other kind of fraud, is of very rare occurrence. Nevertheless, the rule must be considered as well settled, although rather by dicta than by decisions, that a transaction will be set aside if there is ‘an inequality 80 strong, gross and manifest, that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it.' The relief, however, in such cases is granted (it is said) not on the ground of inadequacy of consideration, but on the ground of fraud as evidenced thereby": Holmes v. Fresh, 9 Mo. 201. The doctrine thus announced is the well-settled law of this state.

Defendants contend that, as McDonnell was present at the trustee's sale, and interposed no objection thereto or to the manner in which the property was being sold, he and his heirs are estopped in equity, morals and conscience, from questioning the validity thereof. Upon the other hand, plaintiffs insist that no such defense is pleaded, and in order to be available as such this should 275 have been done. While the general rule is in accordance with plaintiffs' contention, it is not under all circumstances absolutely necessary that estoppel should be pleaded in order to be available as a defense, but like many other defenses it may be waived by the plaintiff in the case by proceeding with the trial of the case without objection as if the defense relied upon had been pleaded. This precise question was before this court in Price v. Hallett, 138 Mo. 561, 38 S. W. 451, in which Gantt, P. J., speaking for the court said:

“It has often been decided by this court that estoppel in pais must be pleaded : Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Avery v. Kansas City etc. R. R. Co., 113 Mo. 561, 21 S. W. 90. It was so held on an objection to testi

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