Johnson v. Paine

84 Vt. 84 | Vt. | 1911

Watson, J.

This action, based upon P. S. 1534, is to recover the amount unpaid upon a judgment recovered by the plaintiff against the Union Agricultural Society, an unincorporated association, of the defendant Paine, as a member thereof.

The judgment against the society is conclusive, as to all matters involved in the suit, upon all persons who were members of the association when the liability merged in the judgment was created. Hence liability of the defendant in the action before us depends upon whether he was such a member. Patch Mfg. Co. v. Capeless, 79 Vt. 1.

There were two methods of becoming a member: one was by a person present at the annual meeting of the society signing a paper to that effect, either in person or through the secretary, and paying the sum of one dollar. It is not found, nor is It claimed, that defendant became a member in this way. The other method was that provided by article 14 of the constitution of the society, which reads: “Any person may become a member of the society by paying one dollar which shall entitle such person to membership for one year with privilege of exhibiting at the annual fair and of voting at all meetings and elections of the society, and shall be entitled to one ticket of admission, and the membership shall terminate at the annual meeting, and to be entitled to vote at said meeting he shall pay or pledge to pay one dollar.” The constitution is made a part of the findings of fact, but, except as to article 14, neither.the original nor a copy has been furnished us. We therefore assume that the exceptor is satisfied with the other provisions thereof as stated and as construed by the court below.

It is said that the treasurer’s book marked “G”, the book identified as a record of premiums, marked “J”, and book marked “C”, containing premium lists and regulations of the Union Agricultual Society duly and regularly published by it, were improperly received in evidence. However this may be, no exception appears to have been saved to the admission of any of them. The exceptions in fact taken to the rulings in receiving or excluding evidence are not relied upon in defendant’s brief. And no exception was saved to any of the findings of fact. The case stands for consideration therefore on the exception to the judgment.

It is found that from the year 1887 down to and including the year 1899 the defendant was a constant exhibitor of stock and poultry at the annual fair of the society; that he had seen and read the premium list for the year 1898 as well as other years prior and subsequent thereto, and knew the conditions under which he could exhibit, namely,' by the purchase of a membership ticket, and on each of the years of so exhibiting he purchased such a ticket, paying one dollar therefor, including the years 1898 and 1899; that he attended the fair and received from time to time numerous premiums in money from the society for the exhibits so entered by him; that defendant knew he held such tickets from 1887 to 1899 inclusive, knew the requirements as to members exhibiting, and knew he was a member of the society during all that period (which included the time when the liability merged in plaintiff’s judgment against the society arose) and entitled to all the privileges of a member.

It is argued that it appears from the record that the defendant testified he did not intend to become a member, and there is no finding that he did; and consequently, under the holding in Tarbell & Whitham v. Gifford, 82 Vt. 222, the facts presented are not sufficient to support a judgment against him. In this respect the finding is, that the defendant intended to do what it is found he did do, to become a member. Whether he became a member under the provisions of article 14 was a question of fact upon the evidence including that bearing upon his intent, and the determination thereof against him is conclusive. Smith v. Hollister, 32 Vt. 695.

It is contended that since by article 14 the membership is for one year and terminates at the annual meeting, the society is an annual one terminating with the membership. Yet these provisions do not show that the association was formed for any particular period, nor that it is not continuous. Indeed, the provision that the payment of the sum named “shall entitle such person to membership for one year,” ending “at the annual meeting,” indicates that continuous membership depends upon the payment of such sum annually, rather than that the association ends at such meeting by its own limitation. Moreover, it is found that the treasurer’s account went right along and any balance of cash in his hands was carried forward as so much cash on hand at the beginning of the ensuing year; that no disposition of the property of the society or division of funds was ever made; and that by the members and officers the society was treated as continuing. It is not expressly found that the association was designed to be and was continuous (see Tenney v. N. E. Protective Union, 37 Vt. 64.), yet it is fairly inferable from the findings made, and if necessary to the affirmance of the judgment we will presume that such inference was made by the court below.

Lastly it is said that the defendant cannot be held liable, because it appears that the vote authorizing the plaintiff’s employment was taken at a special meeting called by the executive committee for a particular purpose, of which meeting the defendant had no notice, and at which he was not present. It is a sufficient answer to this position, however, that at the annual meeting in January 1900, and before the vote to dissolve “the association of 1899”, of which the defendant was a member, the employment of the plaintiff was ratified and confirmed.

Judgment affirmed.