Ash v. Guie

97 Pa. 493 | Pa. | 1881

Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

One of the defendants, called by plaintiffs, testified: “ The full title of our lodge is Williamson Lodge, No. 309, E. and A. M.; F. and A. M. means Free and Accepted Masons; the purposes of our lodge are charitable, benevolent and social.” This is the evidence as to the objects for which the association was formed, and without proof of its constitution or rules respecting admission of members and the management of its affairs it was held to be a common partnership. A partnership has been defined to be a “ combination by two or more persons of capital, or labor, or skill, for the purpose of business for their common benefit.” It may be formed, not only for every kind of commercial business, but for manufacturing, hunting, and the like, as well as for carrying on the business of professional men, mechanics, laborers, and almost all other employments. It would seem that there must be a community of interest for business purposes. Hence, voluntary associations or clubs, for social and charitable purposes, and the like, are not proper partnerships, nor have their members the powers and responsibilities of partners: Parsons on Part., 6, 36, 42.

A benevolent and social society has rarely, if ever, been considered a partnership. In Lloyd v. Loaring, 6 Vesey 773, the point was not made, but Lord Eldoxt thought the bill would lie on the ground of joint ownership of the personal property in the members of a Masonic lodge; there was’no intimation that they were partners. Whore a society of Odd Fellows, an association of persons for purposes of mutual benevolence, erected a building, which was afterwards sold at sheriffs sale in satisfaction of mechanics’ liens, in distribution of the proceeds, it was said that, as respects third persons, the members .were partners, and that lien-creditors, who were not members, were entitled to preference as against the liens of members: Babb v. Reed, 5 Rawle 151. Had the members been called joint-tenants of the real estate, the same principle in the distribution would have applied. In Flemyng v. Hector, 2 M. & W. 172, Lord Abingbe, stated the difference between a body of gentlemen forming a club and meeting together for one common object, and a partnership where persons engage in a community of profit and loss, and each partner has the right of property for the whole, and in any ordinary transactions may bind the partnership by a credit. He held that a club and its committee must stand on the ground of principal and agent, and that the authority of the committee depends on the constitution of the club, which is to be found in its own rules. After noting the rules of the club, in the case before him, he says: “ It therefore appears that the members in general intended to provide a fund for the committee to call upon. I cannot infer that they intended the committee to deal upon credit, and unless you infer that that was the intention, how are the defendants bound?” A mutual beneficial society partakes more of the character of a club than of a trading association. Every partner is agent for the partnership, and as concerns himself he is a principal, and he may bind the others by contract, though it be against an agreement between himself and his partners. A joint, tenant has not the same power, by virtue of the relation, to bind his co-tenant. Thus, one of several co-adventurers in a mine, has not, as such, any authority to pledge the credit of the general body for money borrowed for the purposes of the concern. And the fact of his having the general management of the mine makes no difference, in the absence of evidence from which an implied authority for that purpose can be inferred: Ricketts v. Bennett, 4 M., G. & S. 686, (56 Eng. C. L.).

Here there is no evidence to warrant an inference that when a person joined the lodge he bound himself as a partner in the business of purchasing real estate and erecting buildings, or as a partner, so that other members could borrow money on his credit. The proof fails to show that the officers or a committee, or any number of the members, had a right to contract debts for the building of a temple, which would be valid against every member from the mere fact that he was a member of the lodge. But those who engaged in the enterprise are liable for the debts they contracted, and all are included in such liability who assented to the undertaking, or subsequently ratified it. Those who participated in the erection of the building, by voting for and advising it, are bound the same as the committee who had it in charge. And so with reference to borrowing money. A member who subsequently approved the erection or borrowing could be held on the ground of ratification of the agent’s acts. We are of opinion that it was error to rule that all the members were liable as partners in their relation to third persons in the same manner as individuals associated for the purpose of carrying on a trade.

This unincorporated association had a seal which the officers were authorized to use for certain purposes. Some of those who engaged in the business of borrowing money directed it to be affixed to the certificate of indebtedness. All who did, adopted it as their seal for the specific purpose. It was not the seal of a corporation, nor intended as such. The parties borrowed the money in the name of the lodge, and gave'the certificate in same name, and adopted a common seal. They cannot repudiate it in good faith to the lender. He loaned the money on a sealed instrument, in many re'spects better than a simple contract. Those who advised affixing the seal should be held the same as their officers, who signed the certificate. Were the members partners, without evidence of agreement betwmen them that the seal should be affixed to contracts, those not assenting to its use in that way would not be bound by a sealed instrument, though given for a debt for which all were liable. Schmertz v. Shreeve, 12 P. F. Smith 457. The learned judge was right in ruling that the certificate was a sealed instrument, but not, under the evidence, in holding that it was authorized by all the members.

Elston pleaded a former recovery in an action against “ The Williamson Lodge, No. 309, A. Y. M.” The court properly remarked that if judgment had been recovered in that suit against any of these defendants, it would not have precluded recovery in a subsequent action against those not joined. That was not a recovery against any person, natural or artificial. The writ was not served upon Elston, nor did he appear. It is not to the purpose to speak of the result, had property, held in the name of the lodge, been sold in satisfaction of the judgment. The plaintiff has received nothing, and Elston was not a party in that proceeding.

The Act of May 2oth 1878, Pamph. L. 153, provides that in all civil proceedings by or against surviving partners, no interest or policy of iaw shall exclude any party to the record from testifying to matters having occurred between the surviving party and the adverse party on the record. This statute is remedial, enacted to enable parties to testify wiio stand on an equality, though a party in interest be dead. Its spirit embraces the survivor of two or more who jointly contracted. If two persons jointly execute a note, and one die, in an action between the holder and the survivor, this statute should apply as if the makers had been partners. Otherwise, the mischief is only partially remedied. Those jointly concerned in a transaction are partners in the popular sense of the word, and, considering the obvious intendment of the statute, it should apply in case of a surviving partner, in the popular as well as the technical sense. Therefore, Guie was a competent witness to prove what occurred between himself and the defendants.

It was clearly competent for the plaintiff to call Wells and Doan. Any party, in any civil action, may compel any adverse party to testify in his behalf, in the same maimer and subject to the same rules, as other witnesses (Act March 27th I860, Pamph. L. 38). This statute is not affected by the Act of 1869. Wells and Doan were not called to prove the liability of any deceased member of the lodge, and no objection was made on that ground. It is immaterial to the plaintiff' in this trial whether the deceased members were liable. He has a right to prove everything, if he can, by the adverse party, which will establish his case. The adverse party is called against his interest, and the statute places him in a different position from a party proposing to testify in his own behalf.

The Act of March 22d 1861, Pamph. L. 186, provides that in no case on any joint obligation, shall a plea be entertained, on the part of any heir or personal representative, that one of the joint debtors has deceased since the commencement of the action, but the same shall he proceeded in against the estate of said decedent, as though the suit had been commenced against the decedent alone. Literally and strictly, upon the death of a party to the record, jointly sued with others, the further progress of the action against his estate is the same as if he had been sued separately. A liberal construction of the statute permits the plaintiff to bring in the executor or administrator, and proceed against him and the survivor at the same time to judgment: Dingman v. Amsink, 27 P. F. Smith 114. But it does not follow that lie is compelled to do this, or that the representatives of the decedent may come in and he substituted, and have trial with the survivor, against the plaintiff’s consent; much less can the survivors claim delay till the representatives be-substituted. There was no error in directing the jurors to be sworn as to the survivors.

Judgment was erroneously entered by the plaintiff against part of the defendants in default of appearance, which was afterwards struck off without leave of court. The defendants made no motion to have it reinstated ; they appear to have acquiesced in the striking off. Subsequently, upon motion, the court granted judgment against the same defendants, and this also was struck off by the court, before trial.;, We are not convinced of any such error in these interlocutory judgments, and their vacation, as calls for reversal.

Without noticing seriatim the two dozen assignments of error, we have endeavored to express our opinion on every material point raised by them. This writ is by all the defendants, and they contend that none are liable. That the money was fairly loaned by the plaintiff and used by the borrowers, is not disputed. If any of the defendants had no part in the borrowing, either by previous assent and procurement, or by subsequent ratification, they have a meritorious defence, and the grounds on which the judgment is reversed will avail them. The question is one of fact, and must be determined by the jury from the evidence. It is difficult to conceive of a meritorious defence in those who actually got the money, some of whom signed the certificate, and others actively participated in the giving of it. They have a legal right to refuse payment until judgment be recovered according to law. But they cannot complain if the plaintiff fails to include every one in the action who is liable, or fails to discover proof against every one included. In the nature of the case, it is difficult for the plaintiff to determine in advance the precise individuals who are liable, though he be sure of some of them, and the court below has not been, and will not likely be, slow to allow necessary amendments, authorized by the statutes.

Judgment reversed, and venire facias de novo awarded.