2 Blackf. 255 | Ind. | 1829
Assumpsit on four promissory notes, payable at a future period to Morris, agent to the Aurora association for internal improvement, for the use of said association; which notes were assigned by Morris to Vattier. Pleas, 1st, non-assumpsit; 2dly, actio non, because the notes were given in consideration of a supposed legal liability,' on the part of the individuals forming the Aurora, association, to make the defendant a warranty deed for a lot in Aurora; and the individuals forming the said association were_ not legally bound to make the deed as aforesaid. There are no replications to the pleas. . After the notes had been proved, the defendant gave in evidence the following writing: “This shall oblige the Aurora association for internal improvement, by themselves or their trustees, to make or cause to be made unto Aaron Roberts, or unto his heirs, &c., a deed of conveyance in fee simple with general warranty, for lot numbered 104 in the town of Aurora, provided 51 dollars of the purchase-money therefor are paid in eight months, and the balance in five years from this date, otherwise this obligation to be void and of no effect. The deed to he made as soon as the purchase-money therefor is paid, under the penalty of 1,000 dollars. Witness my hand and seal, April 30th, 1819.
The defendant proved by Norris, that this was the only writing given by him, or said association, to the defendant as evidence of the purchase of the lot. The witness, on being questioned by the defendant, said that his appointment as agent was in writing; but that he could not recollect whether the appointment was signed by all the individuals of the association, or only by the president and clerk of the meeting. There was no other testimony of his appointment. The plaintiff called upon the Court to charge the jury, that it rested upon the defendant to show that Norris was not authorised by the association, or by the individuals composing it, to execute the said writing and bind them by the same. Whereupon the Court charged the jury, that no authority whatever, given by the said association, by the name of the Aurora association for internal improvement, to the said Norris, could authorise or enable him to bind the association, as, by their said name of the Aurora association for internal improvement, in and by said writing he has attempted to do; or would make the said writing obligatory upon the association. The jury gave a verdict for the defendant; and there was judgment accordingly.
The plaintiff contends, that the Court below committed an error in refusing the instructions asked for, and in giving those which were given.
We can discover no error in these proceedings. The circumstance of the Aurora association’s being bound to execute a warranty deed to the purchaser, Roberts, for the lot, was the consideration of the notes upon which this action was founded. The instrument of writing given by Norris, did not bind the association, no matter what his authority may have been. The company was not a corporation, and the members could not bind themselves by the special denomination of “The Aurora association,” to execute a conveyance: a fortiori, an agent could not so bind them. The obligation, to have been valid against the association, should have been executed by all the individual members, either personally or by their agent. This was not done, and the notes consequently stand without any valid consideration to support them.
The judgment is affirmed with costs. Tobe certified, áse.
