272 Mass. 366 | Mass. | 1930
This is a suit in equity to recover possession of certain money on deposit in the defendant banks in the name of Lithuanian Roman Catholic Benefit Society of the Most Sacred Heart of Jesus, (hereafter called the corporation), and of other property, and for an accounting. The original plaintiffs described themselves as officers of a voluntary association, (herein referred to as the association), and bring this bill as representatives of the members of a class “too numerous to mention.” Others have since been permitted to join as parties plaintiff. The corporation ad
In the summer of 1927 the question of incorporating the association was discussed, and the president called a special meeting of those who were to act as incorporators, for September 26, 1927, at which an agreement was signed to form a corporation under G. L. c. 176. Among the signers were three of the present plaintiffs. The membership in the corporation, as was that in the association, was restricted to Lithuanians who were Roman Catholics. The president received this charter on December 12, 1927, and on the same day took it to a regular monthly meeting of the association, which was neither an annual nor semiannual meeting, and for which no notice had been sent to the members. The officers elected at this meeting had been nominated in November as officers of the- associatian. He informed the meeting that their society was now incorporated and charter obtained, and from that time it would be called by the corporate name. From the minutes of the proceedings of the meeting it appears that the members present voted unanimously to accept the work of the board in obtaining the charter, and that “It was decided to complete the formalities.” The record in the case states: “There was nothing in the evidence to
The constitution of the association provided that changes in it might be made only at the annual or semiannual meeting. At the annual meeting on January 9, 1928, certain members of the association, after raising objections to the name of the corporation, to the election and other matters, left the meeting. Beginning January 21, 1928, a group of members of the association proceeded in its name to maintain regular meetings and transact business. On that date all of the members present, eighty-nine in all, voted to demand of the corporation their property, taking court action if necessary, and also to call a meeting to elect officers for the association. This election took place at a meeting held on February 4. The plaintiffs named originally in the bill of complaint were elected to the offices. At this meeting all present, one hundred eighteen in number, voted to retain the old association and its name. Both organizations, the association and the corporation, have continued to hold their respective meetings. The constitution provided that officers should be elected in December.
The master found that the officers and directors acting as incorporators, intended to continue the association as a corporation and thought they had authority to do this, but that they failed to accomplish what they intended in that they formed the corporation, but left the voluntary association just where it was.
The contention that the plaintiffs cannot maintain the suit because they have not exhausted their remedies within the organization as provided in the constitution cannot be maintained. The only finding pertinent to this contention relates to the provision of the constitution that if members have anything against the association they must ask the board of directors for a decision.
Upon the facts found, no merger of the association with the corporation was accomplished. There was no complete cessation of the activities of the association; reasons for its continuance as an organization existed and unanimous approval of or acquiescence in a merger was not shown. See Bancroft v. Cook, 264 Mass. 343, 350; Grand Lodge of Massachusetts Loyal Orange Institution v. Snow, 266 Mass. 483; Great Council of the Improved Order of Red Men v. Mohican Tribe, 92 N. J. Eq. 593. “. . .no action could be taken binding all unless assented to by all.” Hill v. Rauhan Aarre, 200 Mass. 438, 439. Kane v. Shields, 167 Mass. 392. Hanson v. Mayers, 243 Mass. 25, 28. Although the corporation in its answer undertook to justify itself in holding the records and property formerly owned by the association on the ground of merger of the latter in the corporation, it has not so contended in its brief. It now contends, in addition to the defences to which reference has been made, that the plaintiffs are not officers of the association and do not represent its members. The master found, however, that the plaintiffs are the representatives of the association and court proceedings to recover the property were authorized by vote of the association. Furthermore, in view of the fact that the officers of the association elected
The bill alleges that the property which the plaintiffs seek is in the possession of certain individuals designated as officers of the corporation. These individuals have not been made parties, but in view of the fact that the possession of all of the property sought to be recovered is admitted to be in the corporation, the plaintiffs may be granted the relief sought without making the individuals parties.
Ordered accordingly.