150 Va. 756 | Va. Ct. App. | 1928
Lead Opinion
after making the foregoing statement, delivered the following opinion of the court.
The plaintiffs in error complain of the rulings of the trial court in overruling their demurrer to the notice of motion, in excluding certain evidence offered by them, in admitting evidence offered by the plaintiff, in refusing their instructions and granting others, and in denying a motion to set aside the verdict.
The contentions upon which these assignments of error are based, and which the defendants endeavor to support in their argument here, are that Zehm contracted, through the music committee as agents, with a known principal, the Ghent Methodist Episcopal Church South, named in the instrument, and therefore the agents are not liable to suit, and no one is so liable except the disclosed principal; and further that the contract discloses upon its face that the services of Zehm were to be satisfactory and the church had a right arbitrarily to declare at any time that they were not satisfactory and so terminate the agreement and discontinue Zehm’s employment.
We do not think the first of these propositions is tenable. The word “church” is used with varied 'significance, dependent upon the circumstances attending its use. It may refer only to the church building or house of worship; it may mean in a more consecrated way the great body of persons holding the Christian
The board, by resolution, directed its secretary to notify Zehm that the board no longer regarded him as available and that his engagement was terminated. The contract was made on behalf of the board as the-real principal. There must be competent parties to a. contract. However it may be in other States, in Virginia a church or its congregation cannot contract, certainly not unless perhaps by reason of a specially held meeting and through a special committee appointed by the members attending such meeting. Under the contract in question, therefore, either the members, of the music committee alone are liable, or the board, of stewards are liable as upon a contract made for them. And we think the latter is the result in the-instant case. It is urged on behalf of the board that, the church being named in the contract as a principal acting through the music committee, no contract at. all resulted as the church itself was not competent to-make a contract and so create a lien on its properties. The church, it is true, could make no contract and by
In Lunsford & Withrow v. Wren, 64 W. Va. 458, 63 S. E. 308, it was held that a building contract made on behalf of the Institutional Baptist Church by Wren, president of the board of trustees, was binding on the trustees, and the church not being a corporation, and not capable of being sued, was not a necessary party to the suit. In 1 Mechem on Agency (2nd ed.) section 1389 the author deals with the status of a person assuming to act for a group of others unincorporated, such as voluntary societies and unincorporated churches and the like. He there says: “It is of course possible, in such a ease, that the assumed agent may have expressly excluded personal responsibility, or that the person extending the credit may have done so in reliance upon voluntary payments, subscriptions or funds to be raised, but where it does not appear that he has done so, the person who assumes to act will usually be personally responsible.” And see also 23 R. C. L. page 432, 1 Williston on Contracts, section 309. In Trust Company v. Snyder, 148 Va. 381, 138 S. E. 477, the treasurer of the church was held, "under the circumstances there, to be representative of
The board of stewards as defendants, on the trial, offered evidence tending to prove that owing to-some circumstances in the family circle of Zehm, which had become the subject of public comment and created great dissatisfaction in the congregation and threatened disruption of the chior and possible injury to the church, the right accrued to the board under the terms of the contract, to discontinue the engagement of Zehm without further liability. The court below refused to permit this testimony to go before the jury, and in-r structed the jury in effect that the plaintiff was entitled to recover if the three months’ notice was not given and the plaintiff was ready, able and willing to continue his services.
In this we think there was error. On behalf of the-board it is further contended that the services to be rendered by the plaintiff under the contract were matters of taste, to serve personal convenience or satisfy individual preference, and hence the defendants were the sole judges of whether the services were satisfactory, and might for that reason at any time arbitrarily terminate the employment. This conception of the case is based upon Carpenter v. Chemical Co., 98 Va. 177, 35 S. E. 358. In that case the court held that in a commercial contract of sale of certain mineral rock to be purchased by the buyer if he could use it satisfactorily in his business, the buyer could not arbitrarily repudiate the contract, but must show that he did so
The principles of law governing the enforcement of contracts of this character are dealt with in 13 Corpus Juris, pages 675-681, and in 1 Williston on
This is not simply a ease in which an employer, whose personal satisfaction is made the- test, may declare the services unsatisfactory at his will, provided - he acts honestly and not in bad faith. The possible rendering of the services not satisfactory here, within the intendment of the parties, must necessarily arise if at all out of circumstances and conditions not depend
As was said in Fechteler v. Whittemore, 205 Mass. 6, 91 N. E. 155, where the question was whether the goods bought were satisfactory: “It was not intended to be left to the whim or caprice or even altogether to the good faith of the defendants to say whether the goods were satisfactory. Under the circumstances the term ‘satisfactorily’ must be held to mean satisfactorily to a reasonable man, and the jury were so instructed.” So in Carpenter v. Chemical Co., supra, while the court approved a brief instruction in which the jury were told that “in determining whether the defendant could use the same satisfactorily, it was bound to act fairly,” the court states, however, what it understood the whole instruction to mean, for the court says: “The gist of the instruction is that the defendant was required to act fairly in refusing to take the Tennessee rock alleged to have been contracted for by it conditionally, and that in determining whether or not the rock was satisfactory, the jury should take into consideration the evidence bearing on that point, and determine whether the rock was in good faith not satisfactory to the defendant.” And the court immediately adds that it was contended by the defendant that it alone was the judge and had the right to reject the stock, even though the jury might think that it ought to have been satisf actory; and this contention is discussed and disallowed.
There may be apparent lack of harmony in the decisions upon these questions, but it doubtless arises
Upon the assignments of error we are of opinion that:
The trial court did not err in overruling defendants’ demurrer;
The court did not err in refusing to allow the defendants to put to the witnesses the general questions concluding with: “Will you please state whether or not the party of the second part who is plaintiff in this suit satisfactorily performed what was required of him' under this contract?” as this called for a general opinion. The evidence referred to in this second assignment should, however, have been admitted in so far as it bore upon what the witnesses had observed touching dissatisfaction in the congregation, and tending to the injury of the church;
The court did not err in refusing defendants’ instruction complained of in the fourth assignment, as that instruction allowed the defendants to discharge the plaintiff arbitrarily.
The fifth assignment is based upon the granting of instructions No. 1 and No. 2 offered by the plaintiff.
The court erred in granting No. 1, which is in conflict with the views we have expressed; but did not err in giving instruction No. 2, the only objection made thereto being that “there is no evidence to support or show any liability on any individual defendant in this action.”
The court erred in refusing to set aside the verdict of the jury.
The requirement in the contract for three months’ notice has reference only to the termination of the agreement at the expiration of the first or any subsequent year, so that without such notice the contract continued after September 1, 1925, as a yearly contract. No notice having been given to terminate the contract at the end of the first year, the parties continued bound by its provisions for a second year. The defense of the board of stewards is based upon a right to terminate the contract by reason of a failure on the part of Zehm to comply with substantial terms of the contract relating to its performance, and such termination could only take effect from the time it was demanded. Therefore, Zehm was entitled, upon the evidence on the trial, to a recovery of his salary from September 1st to October 15th, the residue of the second year’s salary being in issue.
The judgment of the trial court must be reversed,
Reversed and remanded.
Dissenting Opinion
dissenting:
I find I am unable to coneur in the majority opinion in this case for the following reasons:
The parties to the contract in this litigation are expressly and clearly set forth as follows:
“This agreement made this 31st day of May, 1924, between Ghent Methodist Episcopal Church South by its music committee, party of the first part, and Harry J. Zehm, party of the second part, both of Norfolk, Virginia.” The purpose of said contract was to employ said Zehm as organist and music director at the church services and religious worship of the congregation that usually worships at said church.
Sections 58 and 59 of Virginia Constitution prohibit religious congregations from contracting or being contracted with, or suing or being sued; or holding or owning property, except to a limited extent fixed by statute and in that latter case the title and control must be vested in trustees subject to direction of the courts. So that religious associations are not recognized as legal entities and cannot appoint agents therefore be principals.
By the discipline of the Methodist Church the members of the board of stewards are elected by the quarterly conference upon nomination of the preacher in charge, who is appointed annually to the station by the presiding Bishop. The preacher in charge is clothed with all authority to direct the worship and services of the church. The stewards are but his assistants and advisers, in carrying out the objects and purposes of the church organization.
There are some rules of the law of agency, which in some eases have held parties entering into contracts for unincorporated bodies or religious congregations personally bound by such contracts. One of the principles upon which individual liability is sometimes enforced, is that the contract is of such character that it can be made effective only by making the agent who made it personally liable therefor, unless it clearly appears by the contract that he did not intend to be bound. Am. & Eng. Encyc. Yol. 1 (1st. ed.) page 406.
The rule of law laid down by the courts and followed for more than a century is: “But agents of charitable, religious or political and kindred societies are as a rule not responsible on contracts made with third parties, when the third party knows that they are acting for such societies; unless it be distinctly understood that such third party is dealing with the agent on his personal credit.” Devess v. Gray, 22 Ohio St. 159; Tobey v. Claflin, Fed. Cas. No. 14066, 3 Sumner (U. S.) 379; Eichbaum v. Irons, 6 Watts & Sergeant (Pa.) 67, 40 Am. Dec. 540; 1 Am. & Eng. Encyc. (1st ed.) page
Mechem on Agency, Vol. 1 (2nd ed.) section 1389, discussing this rule of law states that the determinative principle underlying it is “to whom the credit was extended.” And while the agent of an unincorporated association is presumed to pledge his own credit in order to make the contract effective, there are two exceptions to the rule, (a) “where the agent expressly excluded personal responsibility, (b) or that the person extending credit may have done so in reliance upon voluntary payments, subscriptions or funds to be paid.”
Zehm knew that the services rendered a religious congregation ini ts worship was only payable out of voluntary subscriptions from the members and that neither the music committee nor board of stewards were liable personally for his salary unless it was distinctly understood between them that they were to be individually or collectively so bound, yet he made his contract with the church and required no.security, and the court cannot now make a contract for him.
Zehm knew, the people generally know, and the lawmakers, legislators and courts, know that Christian denominations of this State are governed by a higher law than statute or decision, and do not require the sheriff to compel them to meet their moral obligations. Nor would this suit ever have been necessary, but for the situation Zehm’s wife had placed him before the public. It will be a sad day for religion in this State when the singing in the worship of God is made the subject of barter and pelf like ordinary amusements.
The result of the majority opinion will be to make boards of stewards, vestries, and boards of deacons quasi-corporations or partnerships, whereby the mem