51 Mich. 125 | Mich. | 1883
This action was brought on the 5th of April, 1881, to recover $388, alleged to have been paid to .the defendant’s use, by the plaintiff, on the 6th of April, 1815. The plaintiff recovered a verdict for the amount, with interest, and the defendant brings error. The defendant urged several reasons against the, maintenance of the action, of which one was that the claim was barred by the statute of limitations.
It appears that in March, 1810, the society passed a resolution appointing the plaintiff, together with A. C. Baldwin, E. W. Peck, Goodman Jacobs, D. C. Kellam, and A. Lull, a committee to proceed to build and furnish a new church, according to their best judgment; and that, pursuant to this initial step, a church edifice was subsequently ■erected, which has now been occupied by the congregation for many years.
The work of building proceeded slowly, and changes occurred in the committee. As usual in such cases, the scheme contemplated that the necessary means would be contributed, but, as often happens, that resource was neither as prompt nor prolific as the exigency required. In January, 1812, the fund was exhausted and a small debt existed. A
There was no evidence of any specific corporate act after 1870 bearing at all on the subject-matter of this contention. 'Subsequent to the resolution of that date we find no fact connecting the legal entity made defendant with the transaction on which the plaintiff grounds its liability. But we find testimony of various gatherings of the congregation and of portions of the members where there were consultations in regard to the debt held by the banks and other indebtedness, and in regard to obtaining means to pay the different demands, and it appears- by this testimony that on some, at least, of these occasions the persons participating appeared to consider the debt going to the banks as one to be discharged either by the corporate society or by the congregation. The whole of this portion of the ease is very vague, and there is reason for saying that it affords no clear legal indication as to what opinion was entertained in respect to .the existence or assumption of liability by the defendant.
The exact position of the plaintiff is thus explained in
We fail to discover evidence to countenance this theory. If the record contains anything favoring the notion that the defendant was ever at any time under a legal liability to the plaintiff, it must have been as early as 1812, and on account of the advance which was then made.
At that time it was that the defendant was the recipient of the money which the plaintiff had hired on his own credit from the banks. The" transaction with defendant, if' not a gift, was a loan, and an obligation immediately arose to repay it. The facts are wanting to give the arrangement, the character claimed for it. Had the plaintiff called for repayment it could not have objected that it was only bound to repay after the plaintiff had himself paid those from whom he had borrowed. The circumstances would not have justified the position.
Is the case taken out of the statute of limitations, as intimated in the proposition quoted from the brief ? We think not. We find no evidence that the corporation has, at any time within six years next prior to the suit, either acknowledged or recognized the note or judgment as a debt of its own. The defendant was entitled to-have its second request submitted.
This was as follows :
“ That if the proceeds of the original notes given February 3d, March 12th and April 17th, 1872, of which the notes of March 17th, and May 3d, 1873, upon which the judgment in evidence was obtained, weré paid over at the time of their discount, about the time they were made to the-treasurer of the building fund of the defendants, and used by them in the construction of their church, then the defendants, if liable to the makers of the said several notes, became liable at once, and the plaint-*129 iffi’s right accrued immediately and there can be no recovery in this action because o£ the statute of limitations.”