Clark v. O'Rourke, 111 Mich. 108

Clark v. O'Rourke

111 Mich. 108 | Mich. | 1896

Grant, J.

(after stating the facts). The church organization had no legal existence. It could neither sue nor be sued. The members of the society were not partners. Those of the society who were actually instrumental in' incurring the liabilities for it are liable as either principals, or agents having no legal principal behind them. Members of the society who either authorized or ratified the transactions are liable, while those who did not are exempt from liability. 1 Bates, Partn. § 75; Ash v. Guie, 97 Pa. St. 493 (39 Am. Rep. 818); Fredendall v. Taylor, 26 Wis. 286. Many other authorities might be cited, but we refrain from doing so, since defendants concede the law.

The testimony does not justify the conclusion that the plaintiffs agreed to trust to the proceeds of fairs, etc., for their pay. Plaintiffs knew that the society as a society was irresponsible. It was entirely natural that they should inquire the methods by which the money should be raised, but no inference can be drawn from it that they agreed to look to this source alone. Should A. loan B. $100, and B. promise to raise wheat on his farm with which to pay it, B. would not be relieved from payment because he raised no wheat.

Neither can we accede to the proposition that there was evidence tending legitimately to show that the credit was given to this unincorporated and irresponsible society. It was natural that plaintiffs should enter the account upon *113their books as they did, but a jury would not be justified in drawing the conclusion from this alone that they agreed to look to such members of this society as they might be able to show authorized or ratified the purchase from them. In both reason and authority, this is of no particular significance. The alleged principal was a myth, and the entry means no more than that the credit was given to those forming the association, or to those who stood sponsors for it, and were conducting its business and obtaining the credit. Lewis v. Tilton, 64 Iowa, 220 (52 Am. Rep. 436); Winona Lumber Co. v. Church, 6 S. Dak. 498; Davison v. Holden, 55 Conn. 103. These defendants were the active managers, and, with the other two members of the committee, were in sole charge of the work, and, under the law and the facts, were properly held responsible. The law does not, under such circumstances, leave the creditors to search out the individual members of the society who have authorized the transaction, but holds those liable who have dealt with the creditors in the capacity of agents or principals.

The declaration is upon the common counts, and the plea is the general issue. The declaration, therefore, includes the liability of the defendants as members of the society, and their liability as agents of a principal having no legal existence. While counsel, in their opening statement to the jury, appear to have relied upon the latter liability, still we should not feel disposed, under the facts of this case, to reverse the judgment, even if defendants were not liable upon this theory. There is no doubt of their liability upon the former theory, and it would be technical and unjust to reverse the judgment, and put the plaintiffs to the expense of a new trial, for no other reason than that counsel did not state their case as broadly as they might.

Defendants cannot now raise the question that others, not made parties defendant, are jointly liable with them. If they desired to raise this question, they should have *114interposed a plea in abatement. Robinson v. Robinson, 10 Me. 240.

The judgment is affirmed.

The other Justices concurred.