Detroit Light Guard Band v. First Michigan Independent Infantry, 134 Mich. 598

Detroit Light Guard Band v. First Michigan Independent Infantry

134 Mich. 598 | Mich. | 1903

Grant, J.

(after stating the facts). 1. Does the statute prevent the plaintiff from suing the association and members thereof jointly? It does not abrogate the right to sue the members. Jenkinson v. Wysner, 125 *601Mich. 89 (83 N. W. 1012). It is conceded by defendant’s counsel that plaintiff could pursue a remedy against either the association or against the individual members. The only remedy before the enactment of the statute was against the individual members. Clark v. O’Rourke, 111 Mich. 108 (69 N. W. 147, 66 Am. St. Rep. 389). The statute authorizes suit to be brought by or against any such association, and provides that it shall not take away the right of a litigant to proceed against the members. This does not preclude the plaintiff from suing them jointly. It only provides an additional or cumulative remedy. The doctrine of election of remedies does not apply. Plaintiff has not elected to proceed against one, but against both. See Jenkinson v. Wysner, 125 Mich. 90 (83 N. W. 1012).

2. The court was in error in holding that the plaintiff could not recover, as an association, the total amount due. The money was due, not to the individual members of the plaintiff association, but to the association itself, and was payable to its treasurer. It was then to be apportioned to those performing the services, according to their financial standing with the association. If the individual member was in debt to the association, the amount of his debt was deducted from the amount due him. The identity of the plaintiff association was not affected by the withdrawal of these eight members. The remaining members were entitled to all the rights, privileges, and property of the association. If the withdrawing members had any enforceable interest in the association, their remedy was against the association or the members thereof, and they were not authorized to interfere in a suit brought by the association upon a contract made in its name and for its benefit. Schiller Commandery v. Jaennichen, 116 Mich. 129 (74 N. W. 458); Curtiss v. Hoyt, 19 Conn. 154 (48 Am. Dec. 149); Nib. Mut. Ben. Soc. § 158.

3. It is urged that defendant Hansjosten is not liable, because he was acting as agent for his principal, and did not intend to bind himself. If he had made the contract *602in the name of an individual or a legally organized corporation, the authorities cited by the defendant would apply. But members of these voluntary associations are personally liable, and in making contracts they bind themselves as well as other members. Hansjosten was a co-contractor and a co-promisor, and is liable on the promise made by himself for himself and others. If other members liable on the contract were not made parties, this defense could be interposed only by plea in abatement. Kierstead v. Bennett, 93 Me. 328 (45 Atl. 42).

The judgment is reversed, and new trial ordered.

The other Justices concurred.