In this case error is assigned here by plaintiff’s relators which calls in question the correctness of the trial court’s conclusions of law upon its special finding of facts. Cross-error^ have been assigned here by appellees, defendants below, (1) upon the overruling of their demurrers to relators’ complaint and alternative writ of mandate, and (2) upon the overruling of their demurrer to relators’ reply to their answer and return to relators’ alternative writ of mandate herein. In the natural order of things the questions arising under the first of these cross-errors will be first considered and decided.
This suit was commenced in the name of the-State of Indiana, as plaintiff, on the relation of George K. Poyser and William A. King, against the Trustees of the Salem Church of the Methodist Society of Plaw-Patch Circuit, of the Western Circuit of Michigan, alias the Trustees of the Salem Methodist Protestant Church, and Alonzo T. Poyser, David
In their complaint and alternative writ of mandate herein, relators alleged that defendant, Trustees of the Salem Methodist Protestant Church, was a religious society organized as •a corporation, under the laws of the State of Indiana, and that defendants Poyser, Damy, Hostetter, Hite and Ramsby were its trustees; that, on the 23d day of March, 1874, and from that time until 1878, the defendant corporation occupied for religious worship a church building situated on a certain parcel of real estate, particularly described, in Noble county, Indiana; that in 1878, such building having become old and insufficient for the needs of the community as a place of religious worship, defendant corporation, by its trustees, determined to erect a new building ; that there were then residing in that vicinity many persons who were members of other Christian churches, and others who, not belonging to any church organization, were nevertheless accustomed to attend religious services at said place ; that, in order to raise the necessary funds to erect such new building, the trustees of such defendant corporation organized themselves into a building committee, and associated with themselves, as a member of such committee, relator George K. Poyser, and to induce other persons, who were not members of such church corporation, to subscribe to such new. building fund, such trustees prepared written subscription papers, having a stipulation written in the body of some of them and endorsed upon others. A copy of such subscription paper, with such •endorsement thereon, was filed with the complaint and alternative writ; but the other kind of subscription papers was in defendant’s hands, and no copy thereof could be obtained and filed by relators.
And the relators averred that all such subscription papers were precisely alike, except as aforesaid and as to names of subscribers and sums subscribed; that such stipulations, therein or thereon, were to the effect thaP the new house to
And relators further said that, for some years after the' erection and completion of such church building, defendants permitted other religious denominations to hold meetings and worship in such church building on the Sabbath, as stated and agreed in the conditions aforesaid in such subscriptions, at such times as the same was not occupied by defendants* church denomination; that such building was in the country, away from any village, town or city, and defendants’ church Avas not accustomed to hold religious services upon each Sabbath day, or, if they did, they did not hold such serA'ices more than tAvioe a day; and there being members of a religious denomination knoAvn as the Christian Church residing in that vicinity, who'had made and paid subscriptions to such building fund, Avho desired to Avorship in said building under the ministrations of a minister of said church, in good and regular standing, it Avas arranged and understood that said minister might hold religious services in such church at regular intervals, at such times as the same was not occupied
And relators further averred that the said minister and those acting with him, with a view of avoiding any collision or interference with defendants, changed their appointment to another hour of the day, and so notified defendants; that thereupon defendants notified the said minister that he could no longer hold any religious service or meeting in said church building at any time, except funeral services, and since the 18th day of Jahuaiy, 1883, had absolutely refused to permit the said Christian Church denomination, by its pastor aforesaid and under his ministrations, to worship or hold meetings in said church, except funeral services; that said Christian Church was an orthodox denomination, and, by the stipulations and agreement in said subscription papers, was of right entitled to use said building when not occupied by defendants or other orthodox denominations; that defendants’ church did not occupy said building at all hours of the Sabbath day, nor did it honestly and sincerely propose so to do, but that there was sufficient time on each Sabbath day for said Christian Church denomination to hold services therein when the same was not used by defendants’ church, or by any other denomination, but the purpose of defendants’ church was to entirely exclude said Christian Church denomination from holding religious services in said church building; that defendants’ acts in the premises were in direct eontraversion of their agreement and duty, made and imposed by receiving said subscriptions as aforesaid; and that the said minister of the said Christian Church was ready and willing to hold religious services for his denomination in said building at such
We are of opinion that the court below erred in overruling defendants’ demurrer to relators’ complaint and alternative writ of mandate, for the reason that the case made by the allegations thereof, the substance of which we have given, is not one in which, under our civil code, a writ of mandate may be issued. In section 1168, E. S. 1881, in force since September 19th, 1881, it is provided as follows: “ Writs of mandate may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station.”
It is not claimed by the relators that they seek in this suit to compel the performance of an act which the law specially enjoined upon the defendants herein. But relators claim that, by reason of the facts they allege, a duty rested upon the defendants, and they seek in this action to compel, by mandate, the performance of that duty. The defendants are the trustees of the Methodist Protestant Church, and the church itself, who own a certain described parcel of real estate in Noble county, and a church building, erected by the defendants on such real estate. The duty resting, on the defendants, as alleged by the relators herein, is the duty to
At the foundation of the relators’ claim in this suit, and •of the suit itself, are the subscription papers, under and by means of which the funds were.raised wherewith the new church edifice was erected by defendants, the occupancy and use whereof, during certain or uncertain hours of the Sabbath day, are the matters in controversy herein. These subscription papers were, in substance, as follows: “Wo, the undersigned subscribers, agree to pay the sums set opposite to our respective names, for the purpose of the building of a church on the ground on which the ‘ Old Salem Church ’ now stands. Said amount to be paid to the trustees or building committee appointed to build said church. Dated Perry township, Noble county, Indiana, August 26th, 1878.” In the body of some of the subscription papers, and endorsed on the others, was the following memorandum, to wit: “ Methodist Protestant Church. This house to be free to all orthodox denominations, when not occupied by said church. Subscriptions to be paid as follows,” etc.
There can be no doubt, we think, that when subscriptions were made and paid, as alleged, by persons who were not members of the Methodist Protestant Church, and whose religious sympathies or prejudices inclined them to attend upon the ministrations of other orthodox denominations, upon their reliance on the memorandum last above quoted, ordinary good faith required that the church building, erected in part at least with their money thus obtained, should be free for the services of the orthodox denomination of their choice, when the same was not occupied on the Sabbath day, or on any other day of the week, by the Methodist Protestant Church. But it does not follow from what we have said, by any means, that the trustees of the Salem Methodist Prot
Duties imposed on a corporation, not by virtue of express law, nor by the conditions of its charter, but arising wholly out of contract relations, will not be enforced by mandamus, since the use of such writ is limited to the enforcement of obligations imposed by lav/. Where the duties of a corporation, or of its trustees, grow out of or result from matters of contract, writs of mandate will not lie against the corporation or its trustees, either in their corporate capacity or as individuals, to compel the performance of the contract, but the party aggrieved will be left to the ordinary remedies, either at law or in equity. State, ex rel., v. Zanesville, etc., T. P. Co., 16 Ohio St. 308; State, ex rel., v. Paterson, etc., R. R. Co., 43 N. J. (Law) 505; State v. Republican River Bridge Co., 20 Kans. 404; People, ex rel., v. Dulaney, 96 Ill. 503 ; High Ex. Leg. Rem., section 321.
Relators have mistaken their remedy, if any they have, upon the facts stated in their complaint and alternative writ, for the case made thereby is not one in which mandate will
This conclusion renders it unnecessary for us to consider .anv of the questions arising under the error assigned by the relators herein. Whefe, as here, the plaintiff appeals, and the complaint fails to state a cause of action against the defendants, intervening errors, if any there be, must be regarded here as harmless, and the judgment below must be affirmed. Fell v. Muller, 78 Ind. 507; Ramson v. Pratt, 91 Ind. 9; Clawson v. Chicago, etc., R. W. Co., 95 Ind. 152.
The judgment is affirmed, with costs.
Mitchell, C. J., took no part in the decision of this cause.