Lynn v. Commercial Club of Witten

141 N.W. 471 | S.D. | 1913

GATES, J.

This is an action brought by plaintiff against certain inhabitants of the town of Witten, -S. D., as active members of a voluntary association, known as the Commercial Club of Witten. The complaint was framed in accordance with the views of this court as expressed in Winona Lumber Co. v. Church, 6 S. D. 498, 62 N. W. 107. The answer was a general denial. It appears that the aforesaid Commercial Club was desirous - of removing the town of Red Hill to Witten; that the plaintiff and others performed' services and loaned tools and apparatus in response to requests from some of the members of such association for the removing of the buildings in Red Hill to Witten. 'No claim was made that the services were not rendered, nor was -there any dispute as to the value oif the services .and of the use of the apparatus. The evidence of the defendants tended to disprove the making of such contracts. The other contracting parties assigned their claims to the plaintiff. He obtained a verdict and judgment against four of the defendants in the sum of $398.50. From the judgment and the order denying a new trial, the four defendants appeal.

The assignments of error embrace two subjects, viz., errors of law in admitting and excluding testimon3q and insufficiency of the evidence to justify the verdict.

[1] We have carefully examined the alleged errors in regard to the rulings upon the evidence, and find only- three propositions advanced that merit consideration. It is first claimed that it was prejudicial error to admit in evidence Exhibit'A. This was a contract between the Commercial Club of Witten, party of the first part (which was signed by three of the defendants as a committee for such club), and four of the inhabitants of the town of Wit-ten, parties of the -second part. It provided for the removal of six buildings from Red Hill to Witten, free of charge to the parties of the second part. It is claimed by appellants that this ■contract did in no wise go to prove that the plaintiff and his assignors were hired to perform the services of moving, and that such contract was irrelevant to any issue in the case, and that its admission in -evidence was prejudicial to- the defendants. Respondent contends that such contract was admissible to- show that there was a Witten Commercial Club, and that the three of -the defendants who signed the contract were a committee of the club, and were taking an active part in reference to the removal of -the buildings. We think that the respondent’s -contention is correct, and that the question as to the legality of the contract and as to whether it was enforceable or not between the parties is unimportant. It was clearly admissible for the purposes claimed by respondent.

[2] It is fiext claimed that the court erred in admitting evidence as to transactions and conversations had between one or more of the defendants with the plaintiff or his assignors, at which one or more of the defendants was not present. This claim covers x 1 of the assignments .of error. It is a general proposition that each member of an unincorporated or voluntary association is liable for the debts thereof incurred during his period of membership, and which had been necessarily contracted for the purpose of carrying out the objects for which the association was formed. 4 Cyc. 311. But, if the debt is contracted entirely beyond the scope of the association, only those members who assent, participate, or ratify are -liable. The purpose of -the organization of the association was not shown in evidence, but there was sufficient evidence, if believed by the jury, to show that the four defendants against whom the verdict was rendered had either as.sented to, participated in, or ratified the transaction. In this view the -court was clearly right in overruling the objection of the absent defendants. The rule in this case is analogous to the rule of evidence in actions for conspiracy where the fact of a conspiracy has been proven. Under such rule, these transactions and conversations were clearly admissible as against all of the four defendants, even though some of them were not actually present at the time of the particular transaction.

[3] It is next -claimed that the court erred'in excluding evidence in regard to- the asserted purpose of the plaintiff to file mechanic’s liens upon the property to which these buildings were removed. Such evidence was clearly irrelevant. The assertion of a right to a mechanic’s lien was not inconsistent with the assertion of a claim against these defendants.

The evidence covers 69 pages of appellants’ brief and 6 pages of respondent’s brief. It is too long -to reproduce or even to epitomize. A thorough examination of it -convinces us that there.was sufficient evidence, if -believed by the jury, to warrant the verd-icc as to the four defendants. In our opinion the principal features of the case depend upon the credibility bf the witnesses. These questions were resolved by the jury in favor of the plaintiff. We are unable to find such a preponderance of the evidence in favor of the defendants as would warrant u-s in setting aside the verdict.

The judgment and order denying a new trial are affirmed.