49 Kan. 718 | Kan. | 1892
The opinion of the court was delivered by
This action was brought by R. S. Hendricks, in the court below, to recover the sum of $1,235, balance claimed to be due from defendants, as trustees of the First Congregational Church, upon a contract made by the trustees with the.firm of Townsend & Allen to erect a church building, and assigned by that firm to Hendricks. The case was referred by the court, with the consent of all the parties, to Hon. G. Webb Bertram, as referee, with instructions to hear the same, and to report at the next term of the court the facts found, and his conclusions of law thereon.
As a.conclusion of law, the referee found the plaintiff was entitled to judgment for $827.11, and interest at 7 per cent, from February 15, 1888. These findings were confirmed by the court, and judgment was rendered thereon.
It is contended that the court below erred in overruling the motion to strike the amended petition from the files. It appears that this action was originally commenced in the name of E. N. Hendricks against R. T. Harper, L. Adams Smith, and Sebastian Ditzell. According to the record, “On the 19th day of March, 1889, the plaintiff, R. S. Hendricks, having been substituted as plaintiff in the place of E. N. Hendricks, over the objection of the defendants, filed an amended petition.” According to the notes made by the judge upon his trial docket, the amended petition was filed .after consent therefor had been obtained from the court.
This court has been very liberal in its rulings in permitting pleadings to be amended in furtherance of justice. (Bank v. Tappan, 6 Kas. 456; City of Atchison v. Twine, 9 id. 350; Hanlin v. Baxter, 20 id. 134; Weaver v. Young, 37 id. 70.) Of course a trial court may allow amendments, and, in fur
It is next contended that the court below erred in overruling the objections to the findings of the referee, and also erred in confirming the report of the referee. V/e have examined the testimony in the case, and while it is conflicting, we think there is amply sufficient of a positive character to support the findings and judgment.
It is further contended that as the First Congregational Church of the city of Atwood is a corporation, duly organized and existing under the statutes of the state, the action was wrongly commenced and prosecuted against the defendants, as trustees of the church. There was no demurrer filed alleging a defect of parties, and, if the action was improperly brought, all of this appeared from the face of the amended petition. No objection was made by answer to any defect of parties. (Civil Code, §§89-91; Bell v. Wright, 31 Kas. 244; Hurd v. Simpson, 47 id. 245.) It appears, however, that the contract with Townsend & Allen was signed by the trustees “as the party of the second part.” The trustees of an express trust may sue without joining the person for whose benefit the action is brought. If they can sue, it follows that they may be sued. (Civil Code, §28; Burton v. Larkin, 36 Kas. 246; Mead v. Mitchell, 5 Abb. Pr. 106; Mead v. Mitchell, 17 N. Y. 201.) If the cause of action should have been brought against the corporation only, as the trial was before a referee, and as the court below, upon his report of the facts and the law, rendered the judgment, it could, if necessary, be amended to conform
The judgment will be affirmed.