76 Wis. 464 | Wis. | 1890
The defendant demurred to the complaint on the grounds (1) that the plaintiffs have not legal capacity to sue; (2) that there is a defect of parties plaintiff, in not making the church a party plaintiff and omitting the names of two trustees; and (3) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and this appeal is from the order sustaining the same.
The complaint alleges, substantially, that the Barstow-Street Methodist Episcopal Church is a religious society duly organized under the laws of this state, and the plaintiffs are the trustees thereof, and were at ail times alleged in this
The written contract referred to was embodied in the complaint, and commences as follows: “Agreement made this 16th day of April, A. D. 1883, between Richardson, Boynton & Company, party of the first part, and the trustees of the Barstow-Street, Methodist Episcopal Church, party of the second part, witnesseth,” etc. The agreement is signed for the party of the second, part by M. J. Lawton, Elisha Ross, and Óramel Walker. The names of the trustees in the title of the action are Anna Skinner, J. F. Tinker, M. J. Lawton, A. L. Back, Phineas D. Bent and D. W. Sherman.
1. Have the plaintiffs the legal capacity to sue? The learned counsel of the respondent contends that by ch. 411,
It will be observed that there are general and private statutes relating specially to the incorporation of the trustees of the Methodist Episcopal Church, and have been since 1849. It does not appear but that the trustees of this church were incorporated under these statutes. It is sufficient for this demurrer that they could have been lawfully incorporated, and the presumption is that they were. These statutes would seem to be still in force in relation to the trustees of this particular church.
It is more questionable whether there is any other corporation besides the trustees. Trustees v. Hoessli, 13 Wis. 348; Kulinski v. Dambrowski, 29 Wis. 109. In these cases the trustees had the right to sue under these statutes, or some of them, and, if théir incorporation has not been changed, they would still have that right. The trustees hold the property of the society, and are charged with the
2. It is claimed that the trustees who signed the contract should have been joined as party plaintiff. The complaint embodies the contract, and it must be construed as an entirety. It appears that the plaintiffs are the successors of those who signed the contract, or a different set of trustees. The allegations of the complaint, that the present trustees signed the contract and have been trustees all the times alleged in the complaint, should be treated as corrected or explained by the contract itself.
3. It is contended that the complaint does not state a cause of action, because it does not aver that the said trustees were duly authorized by a vote of the society or aggregate body .to enter into the contract. The defendant is’estopped from questioning the authority of the trustees by entering into the contract with them. Whitney v. Robinson, 53 Wis. 310, and cases cited in the opinion.
The complaint does not appear to be demurrable on the grounds stated, and the demurrer should have been overruled.
By the Court.— The order, of the circuit court is reversed, and the cause remanded for further proceeding according to law.