Appeal by cross-defendants from a judgment against them for $11,517.73 and interest, and denying relief on their complaint to those cross-defendants who were plaintiffs, and from denial of a motion to set aside final judgment. They purport to appeal from the interlocutory judgment
1
Questions Presented
1. Where majority members of an unincorporated fraternal association withdraw because of false representations which induced them to join, may such members take with them its assets?
2. May they take its name ?
3. Does a new lodge formed by such members have any right to compel the old lodge to pay it a sum equal to the fees, dues, etc., formerly paid by such members to the old lodge ?
4. Does such lodge have the right to recover such moneys from the grand lodge to which the old lodge belongs ?
Background
As this case seems to be confusion worse confounded, its background as revealed by the evidence will be presented first in order better to understand the pleadings, findings and true issues. In 1910 The Most Worshipful Hiram of Tyre Grand Lodge of Ancient Free and Accepted Masons (colored) of the State of California, a corporation,
2
was incorporated as a nonprofit fraternal organization. It continued to operate as such and at the time of trial had 20 subordinate lodges. At one time it sent its grand master to a national congress of grand masters (colored) and for a while was recognized by that congress as the only grand lodge in California recognized by it. In 1941 there was a split-up within the congress and several factions formed their own congress. In 1942 the first mentioned congress withdrew its recognition from Tyre, although a different congress continued to recognize it. In 1943 three colored Masonic subordinate lodges not affiliated with Tyre were organized. Of these cross-defendant Pough in April organized Sons of Light No. 444, which in turn organized Orange Grove Lodge No. 138 and Rising Star Lodge No. 412. In May, Pough organized plaintiff, The Most Worshipful Sons of Light Grand Lodge, Ancient Free and Accepted Masons, Jurisdiction of California, a nonprofit corporation.
3
Later, Oriental Lodge No. 13, and Pride of Rich
Pleadings, Findings and Judgment
The plaintiffs are Light Grand Lodge, each of the subordinate lodges from which members purported to take their respective lodges over to Tyre, and a remaining member of • each of those lodges suing individually and in a representative capacity for the other remaining members of the respective lodges. The complaint alleged the ownership of the property taken from the respective lodges, the acts of defendants in removing the assets from plaintiff subordinate lodges and asked damages for their conversion and that defendants be restrained from using the names of said subordinate lodges and for damages. While some question could be raised as
The defendants are the lodges formed by the members who withdrew from plaintiff subordinate lodges and two members of each lodge individually and as members of the respective lodges. Defendants filed an answer alleging that plaintiff subordinate lodges, the individual plaintiffs and cross-defendant Pough were agents of plaintiff Light Grand Lodge; that plaintiffs represented to the members of defendant lodges' that Light Grand Lodge was the sole and exclusive colored Masonic Grand Lodge in California, which representations were untrue; that because of such representations defendants and members of defendant lodges joined and became members of Light Grand Lodge and paid dues and other sums in large amounts to plaintiffs; that defendants, upon learning of the falsity of said representations, severed all connection with plaintiffs and affiliated with Tyre, retaining the assets of their respective lodges theretofore operated under affiliation with Light Grand Lodge; that said assets belong to defendants. In a cross-complaint defendants alleged that the individual cross-complainants were members of their respective cross-complainant subordinate lodge and were appearing for all the members of such lodge because the matters alleged affected all members of such lodges; that defendants and the members of the defendant lodges had been damaged in the sum of $100,000. Defendants then prayed that plaintiffs be compelled to account for all initiation fees, dues and other moneys paid by defendants to plaintiffs and in addition for $100,000 damages.
The court found that plaintiff Light Grand Lodge is not in fact a nonprofit corporation nor organized for the purpose of promoting Masonic principles among its members and sub
1. Do Defendants Have Any Right to the Former Assets of Plaintiff Lodges ?
Assuming that the evidence supports the court’s findings that defendants’ members joined plaintiff subordinate lodges because of false representations and withdrew because they learned of their falsity, are defendants entitled to keep the assets of the lodges from which they withdrew and to take their names! The answer is, they are not. The assets of a fraternal association are the property of all the members, not of any number less than all of them. They can only be transferred to another lodge by consent of all the members. One objector alone can stop such transfer.
■ Assets Belong to Last Member
It is well settled that “Dues and assessments paid by members to an association become the property of the association and any severable or individual interest therein ceases upon such payment. [Citations.]"
(DeMille
v.
American Fed. of Radio Artists,
“ When a schism has occurred in a religious or benevolent association, which has united with and assented to the control and supervision of a general organization, and acquired property since its union and assent to the government of the general organization, by the investment of dues collected from its members while harmony obtained, the title to the property remains in the name of the association, and that faction which has remained loyal and adhered to the laws, usages, and customs of the general organization constitutes the true association, and is alone entitled to the use and enjoyment of the association’s property. This rule applies whether the subordinate association be a corporation or simply a voluntary association, and regardless of whether the majority or minority of the entire membership constitute the faction adhering to and observing the laws, usages, and customs of the general organization, provided the minority includes the minimum number necessary to support the local organization.”
(Union Benev. Soc. No. 8
v.
Martin,
In
Henry
v.
Cox,
In
Stringfellow
v.
Loyal Tabernacle No. 48,
(Tex.Civ.App.)
Defendants contend that these rules do not apply where the dissentient members were induced to join the old lodge by fraud. They contend that because of fraud in connection with the obtaining of members to the old lodge, the new lodge or defendant individuals on behalf of all other dissentients are entitled (1) to all the assets of the old lodge, (2) to all dues, fees, etc., paid to the old lodge and (3) damages against the old lodge. However, they cite no cases supporting the proposition that the fraud entitles them to take from the lodge its property. Defendants rely upon cases like
Grand Grove etc. of Druids
v.
Garibaldi Grove No. 71,
Interesting enough, since it is cited by defendants,
Supreme Lodge of the World
v.
Los Angeles Lodge No. 386, supra,
The doctrine of “clean hands” is not applicable here for the reason that the evidence fails to disclose any fraud of the plaintiff subordinate lodges. The old lodges are entitled to have their assets returned. Although the Light Grand Lodge is a plaintiff, it is not entitled to any of these assets as there has not been a dissolution of any of the subordinate lodges.
The trial court made a finding to the effect that none of the loyal members of plaintiff subordinate lodges contributed anything towards the assets which the dissentient members took away with them. There is no evidence to support this finding.
Defendants contend that because of the fraud found by the court they are entitled by way of “defensive relief” to keep defendant subordinate lodges ’ assets, citing
Nevada Land & Inv. Corp.
v.
Sistrunk,
2. .Names.
On just what theory defendants claim the right to use the identical name and number of one of plaintiff subordinate lodges and the name of the other plaintiff subordinate lodges does not appear. The lodge name is an asset of the particular lodge and like other assets belongs to the old and not the new lodge. Nor is any defendant lodge entitled to use any name so similar to that of any plaintiff lodge as to be likely to confuse the public. In
Brown
v.
Hook,
3. Moneys Paid by Plaintiff Subordinate Lodges to Light Grand Lodge and Defendant Pough.
Upon what theory defendant subordinate lodges can recover dues paid to plaintiff subordinate lodges prior to the existence of said defendant lodges does not appear. It is obvious that these new lodges have no cause of action against the old lodges for moneys which the individuals now making up the new lodges paid into the old. Moreover, no theory is advanced why, in any event, plaintiff subordinate lodges who paid said sums to Light Grand Lodge as they were required to do by the rules of the grand lodge to which they had subscribed, should now be liable for those sums. Assuming
This is not a representative suit in the sense that the individual defendants are authorized to sue for the moneys due the other individuals who withdrew from plaintiff lodges. It is representative only in the sense that the individual defendants are appearing for the unincorporated associations, the lodges. The claims that the former lodge members have to a return of their moneys, if any they have, or to damages because of the misrepresentations of Pough and Light Grand Lodge, would be individual claims, requiring proof that each individual joined his respective lodge solely because of such representations and left solely because of such falsity, and the amount of moneys paid in by each such member. There might even be an offset in favor of the lodge for the benefit, if any, such member might have received while in the lodge. While such a claim could be assigned for suit purposes, it could not be recovered in a representative action. (See
Noroian
v.
Bennett,
A rather interesting sidelight in this case is that the trial court awarded defendant subordinate lodges, which include members who never belonged to any of the plaintiff lodges, judgment against the present plaintiff lodges, which include members who came into defendant lodges after the dissentient members had left. Moreover, with the exception of two or three members, the false representations upon which defendants rely were not made by any of the present members of plaintiff lodges. To top it all, the court held that defendants were entitled to retain all the assets of plaintiff lodges and in addition to compel plaintiff subordinate lodges to repay to defendants the moneys which the plaintiff subordinate
In their answer to the cross-complaint plaintiffs admitted that the individual cross-complainants appeared for and on behalf of all the members of the respective subordinate lodge each individual alleged he represented, but denied all the other allegations of the cross-complaint. Thus, they denied that each and all members of the respective lodges were affected by the matters alleged or that they were of common and general interest to all the members. Therefore there was no admission that a claim for return of dues to an individual former member of a plaintiff lodge for alleged misrepresentation to such individual was a matter of interest to a new lodge which such person may have joined. Actually, this type of claim was one which, to enable a party other than the individual himself to sue on, would have to be assigned by that individual to such party. Membership in a new lodge would not constitute such assignment.
Jackson
v.
Deauville Holding Co., supra,
The situation here is similar to that in
Noroian
v.
Bennett, supra,
“Class or representative suits to obtain the rescission of transactions based on similar frauds practiced by one defendant upon various, and commonly numerous, persons, have so often been held not maintainable that one may well doubt whether under any circumstances such a suit will lie. One of the basic difficulties is not merely that the various transactions are legally distinct, but that each case is, or at least may prove to be, to some extent different. Even where the false representations were exactly the same, the various persons victimized may have acted upon different opinions and beliefs as to the facts; one may have relied upon one supposed fact, another upon a different one, and some may have largely acted upon their own judgment as to business possibilities, etc. Furthermore, each has an election of remedies, all may not desire the same relief, and some may not be entitled to any relief.” (114 A.L.R., p. 1016.) See
Weaver
v.
Pasadena Tournament of Roses Assn.,
The judgment in this case runs against each plaintiff subordinate lodge for not only dues, initiation fees and other moneys which it paid to Light Grand Lodge and cross-defendant Bough but also for all moneys paid to the latter two by all the other plaintiff subordinate lodges. There can be no legal ground upon which, for example, plaintiff Orange
Fraud
The fraud alleged in the complaint and found by the court was that between October 25, 1943, the date of the organization of plaintiff Sons of Light Grand Lodge, and August 4, 1946, cross-defendant Pough and plaintiffs fraudulently represented to defendants and the members of defendant lodges (actually defendant lodges were not then in existence) that plaintiff Grand Lodge was the only bona fide, sole and exclusive grand lodge and its subordinate lodges the only subordinate lodges, of Ancient Free and Accepted Masons, limited to members of the colored race in California. These statements were untrue in that there was at least one other colored Masonic Grand Lodge and subordinate lodges in California, the Tyre group, which had been in existence in California since 1910. (See
Most Worshipful etc. Lodge
v.
Sons etc. Lodge, supra,
From the evidence it appears that Light Grand Lodge may have been conducted for the benefit of Pough. Apparently most of the fees, dues and other moneys paid to it by the subordinate lodges went to Pough. Many sums were paid by those lodges directly to him. Several of the witnesses who testified for defendants gave as their reasons for withdrawing, not the representations about exclusive Masonic lodges, but because they were dissatisfied with the way their lodge was being run, or that too much money was going to the grand lodge and Pough or that Pough did not send the supplies he had promised.
Plaintiffs contend that our decision in the companion case (
Nor can defendant subordinate lodges recover from Light Grand Lodge in this action the moneys paid it by the subordinate lodges. While the evidence supports the finding that Light Grand Lodge and Pough made the misrepresentations charged, there is no legal theory upon which defendant subordinate lodges which were not even in existence have any cause of action against either. As hereinbefore pointed out, the causes of action arising from such fraud are individual in each member so defrauded. He alone can bring an action for such fraud.
The appeals from the interlocutory judgment and the report of the referee are dismissed, and the judgment and the order appealed from are reversed.
Peters, P. J., and Wood (Fred B.), J., concurred.
Respondents’ petition for a hearing by the Supreme Court was denied July 22, 1953.
Notes
Au appeal by cross-defendants heretofore attempted from said interlocutory judgment was dismissed as premature.
(Most Worshipful etc. Lodge
v.
Sons etc. Lodge,
This is the grand lodge (hereafter referred to as Tyre) which was the plaintiff in
Most Worshipful etc. Lodge
v.
Sons etc. Lodge,
Hereafter referred to as Light Grand Lodge.
For brevity, all this will be referred to as “assets.”
The evidence demonstrates that they are unincorporated voluntary associations. Probably this finding was intended to mean that they were not independent of the control of Light Grand Lodge.
While the referee characterized this amount as moneys paid by the members of defendant lodges to plaintiffs, actually it represents only the moneys paid by plaintiff subordinate lodges to plaintiff Light Grand Lodge and cross-defendant Pough prior to defendants’ withdrawal.
See
Jackson
v.
Deauville Holding Co.,