Charboneau v. Henni, 24 Wis. 250

Charboneau v. Henni

24 Wis. 250 | Wis. | 1869

Cole, J.

The obj ection that there is a defect of parties, and that St. John’s church should have been made a party to the action, is well taken. It is alleged in the complaint, that, at the time the contract was entered into, “St. John’s church” was a “regularly organized religions church or society, viz., an ecclesiastical corporation;” that the defendants Herbert, Jansen and others, were duly chosen under the direction of the bishop, by the said church, a “building committee to act as agents for said bishop and St. John’s church, as well as for the Roman Catholic church of the diocese of the state *255of Wisconsin; ” that they were, as such committee, “agents of said bishop and church, and were duly qualified as such committee and agents, under the customs, rules, regulations and by-laws of the Roman Catholic church, and, under the instructions ” by them received, “had full power and authority, as agents,” to bind ‘£ the said bishop and St. John’s church. ’ ’ Certainly these allegations show that the defendants acted as agents in making the contract mentioned in tire complaint, and that it is not their personal or individual contract. They “had full power and authority, as agents”, to bind the bishop and St. John’s church, which is a regularly organized religious society. Upon what ground, then, can it be said that those defendants are personally liable upon this contract, made by them as agents for the church %

It is said, however, that if we read the first paragraph of the complaint, and then omit the second, third and fourth, and commence with the fifth and read to the tenth, inclusive, a good cause of action is set forth against the defendants personally. But we do not fully appreciate the reason for rejecting those allegations which show the character in which the defendants were acting when they made the contract. If they acted as agents, and had full authority to bind their principal, and did bind it, why should they be'held personally liable % Why should not the plaintiff look to the principal with which he contracted ?

It may be a serious question, whether the other objections taken to the complaint are not valid. In support of the demurrer it is insisted that there is a misjoinder of causes of action, and that the complaint is defective for not alleging that the monthly estimates were made of the work done and materials furnished. The view we have taken of the first ground of demurrer renders it unnecessary to pass upon these other objections to the complaint; and we therefore pass them without any further intimation.

By the Court. — The order sustaining the demurrer is affirmed.