4 Mo. App. 429 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This is a proceeding begun before a justice of the peace, to recover the sum of $49.80, being a quarterly payment of' $6 per quarter, said to be due plaintiff by the Occidental Grove No. 16, as a quarterly stipend, payable, by the by-laws of the association, to her from the date of her father’s death in good standing in the order and a member of Occidental Grove No. 16, until she became twelve years-old. The complaint charges that the defendant, the Grand Grove of the United Ancient Order of Druids, ‘ ‘ is the trustee-for all funds intended for beneficial purposes of the said union, and that, as such, the said Grand Grove superintends- and controls the disbursing thereof, and is responsible for all acts of subordinate groves in said union.” On trial anew in the Circuit Court, evidence was introduced by plaintiff,, tending to show that she was born December 11, 1859, and. that her father died October 14, 1869, being then in good standing and having paid his dues as a member of Occidental
The charter of incorporation offered in evidence (Sess. Acts 1865, p. 224, etc.) recites in its preamble that an association called the United Order of Druids has been formed and organized in the State of Missouri, under the name of “ The Grand Grove of the United Ancient Order of Druids of the State of Missouri,” for the purpose of “rendering-aid and comfort to the members and the families of the members thereof, in case of accident, sickness, or death, and of making provision against calamities to which men are liable;” and that, as the members are being divided into subordinate groves, working under the authority and jurisdiction of the Grand Grove, for the more complete organization of the Grand Grove it should be invested with corporate powers and certain privileges. The act of incorporation gives to the Grand Grove the power of acquiring and holding property for its own use, not exceeding $50,000, as well as in trust for subordinate groves organized under its authority and direction and jurisdiction. Section 2 gives the Grand Grove power to adopt by-laws for itself and for the subordinate groves working under it. Section 3 provides that any subordinate grove may acquire and use all kinds of property in the name of the Grand Grove, such property to be used only for the purpose of creating a fund for aiding the sick and distressed and burying dead members of the Order of Druids ; for aiding the families of deceased, sick, or needy members of the order ; for relieving generally the distressed; for maintaining schools, and for other benevolent purposes set out in full; and further provides that, should any subordinate grove fail to apply the property in their possession for the purposes designated, or misapply the same, or disobey any lawful orders of the corporation, their property, whether such grove be incorporated or not, shall be forfeited to, and vest in, the Grand
An instruction at the close of plaintiff’s case, in the nature of a demurrer to the evidence, was refused by the court.
At the instance of defendants, the court instructed the jury that, in order to find for the plaintiff, they must believe from the evidence that the Occidental Grove had or has property, in the name of the Grand Grove, creating a fund for aiding plaintiff and others in her situation. The sanje proposition was embodied in the instruction given for plaintiff at her instance. The court also instructed the jury, at the instance of defendants, that, to find for plaintiff, they must believe from the evidence that defendants have a fund for the payment of claims like that of plaintiff. The court refused an instruction asked by defendants to the effect that
“ The court instructs the jury that if they find from the ■evidence that the contract under which plaintiff seeks to recover in this action is a contract of life insurance, then the plaintiff cannot recover, and they should find for the defendants; and the jury are instructed that a contract of life insurance arises in all cases where a person pays a stipulated or specific sum or sums in his lifetime, from time to time, with the understanding or agreement in consideration of such payment or payments are made, shall, in the ■event of the death of the party paying the same, pay to his widow or heirs a specified sum or sums of money.”
It is contended by appellants that the cause of action is not a contract between plaintiff and the Occidental Grove ■or its co-defendant, and that there is no evidence of consideration. There was evidence,' we think, of a contract, supported by a sufficient consideration, between the deceased .and the Occidental Grove, that, in the event of his death, they would pay the amount sued for to his orphan child. As the promise was made for the benefit of plaintiff, she might ■sue on it, though not privy to the contract. Beardslee v. Morgner, ante, p. 139.
It is urged that, if there was a contract, the Grand Grove was not a party to it, and the judgment against the' Grand Grove was, therefore, bad. The subordinate groves of the Grand Grove of Druids would seem to be the authorized agents of the Grand Grove for disposing of its funds and making contracts with the individual members of each several subordinate grove, of the character of the one in suit, binding both the subordinate grove and the Grand Grove. The Grand Grove holds its property as trustee for the subordinate groves, retains a superintending control over their disposition of all property, whether held in their name or
It is said that the Occidental Grove is not shown to be a corporation ; that the act was intended to incorporate subordinate groves, but failed of its purpose by reason of the vagueness of its provisions. However this may be, we think it clear that it does not lie in the mouth of these defendants in this action to deny the incorporation of the Occidental Grove. Where an association of persons assumes a name which implies a corporate body, and exercises corporate powers, they should not be heard to say they are not a corporation. When they do acts, and contract, they are estopped from denying their corporate liability. United States Express Co. v. Bedbury, 34 Ill. 466; 12 Barb. 570.
It is further objected that the contract sued on is a contract of life insurance, and ultra vires because expressly prohibited by the charter of the Grand Grove, and not necessary to carry into effect the objects of the corporation. The charter of the Grand Grove'names as one of the main objects of the corporation, “aiding the families of deceased members.” The payment of a small stipend to the helpless children of a deceased member seems to be a very
The instructions on both sides assume that no recovery ought to be had in this case unless the evidence shows that the Occidental Grove had funds held in the name of the Grand Grove for the purpose of paying the benefits claimed by plaintiff. As there is no evidence whatever as to whether either of the defendants had any funds at the time of, or since, the death of Barbaro, if this fact were essential to be proved the judgment must be reversed for want of evidence to support it. If defendants agreed with plaintiff, for a sufficient consideration, to pay a quarterly allowance to his child after his death, we do not see why they should not be held to their contract, or how they would be relieved from their obligation, even if it should appear affirmatively that they had no funds. Appellants contend that the moneys received by the groves could, under the provisions of the charter, be applied only to the accumulation of a fund of $50,000, and that this was the object of the organization of the society. The groves have, under the charter, the power of acquiring property to that extent, and no more; but it is nowhere said, or implied, that the income and property of the groves may not be applied to relieving the families of deceased members of the society, though the charter does expressly provide that these funds shall be used for no other purpose than this and kindred objects.
The complaint alleges that defendant, the Grand Grove,
The record is by no means free from errors, but we see none of which defendants can complain, or which warrant a reversal of the judgment. The judgment of the Circuit Court is affirmed.