Allen v. Duffy

• Decision Date: 11 February 1880
• Citation: 43 Mich. 1,4 N.W. 427
• Court: Michigan Supreme Court
• Parties: ALLEN v. DUFFY. [*]

4 N.W. 427

43 Mich. 1

ALLEN v. DUFFY. ^[*]

Supreme Court of Michigan

February 11, 1880

Trustees of an unincorporated society, organized for a lawful purpose may receiving gifts or promises in its behalf and maintain an action to enforce the same; and a mutual subscription, if the object is definite, may be supported though no payee is named. In an action on a church subscription evidence held sufficient to support a promise to pay presently, and the contract not within the statute of frauds. A subscription to a fund for the purpose of paying for a church is not void for the reason that such subscription is made on Sunday.

Error to St. Clair.

O'Brien J. Atkinson, Elliott G. Stevenson and William Potter, for plaintiff in error.

________ for defendants in error.

COOLEY J.

This is an action brought upon a subscription made for the purpose of a house of worship for a religious society. From the evidence it appears that Levi Morrill, who was one of the trustees of the society, had constructed the building on his own land and at his own expense, expecting, but having no assurance, that the society would take it off his hands and reimburse the cost. At one of the regular services of the society, held on a Sunday in August, 1876, the officiating clergyman stated the facts to the congregation, and a proposition was made that the amount needed to purchase the building from Mr Morrill be then raised by subscription. Many persons then offered sums which they specified. There was a subscription paper with a heading, whereby several persons promised to pay the sums set opposite their names respectively. This paper was lost or destroyed, and was not produced on the trial, and none of the witnesses could say with confidence that it named any payee or any object; but the people well understood the object, and that the purchase was to be for the society then assembled. The several donors did not subscribe their own names, but a Mr. Mills subscribed for them as they announced their proposed gifts. By the terms of the subscriptions, as given by the witnesses, they would be payable presently; but it seems to have been understood that the subscribers were to have a year to pay in, or longer if they desired, on giving their notes.

Among the persons promising to give was the plaintiff in error, who agreed to pay $25. The subscription paper was afterwards turned over to Mr. Morrill, and he deeded the church property to the society. When plaintiff in error was afterwards called upon for his note he refused to give it, saying his word was as good as his note, and intimating that as the promise was made on Sunday he could not be compelled to pay unless he chose to do so. Not having made payment or given his note previous to August, 1878, this suit was then instituted.

The suit was brought in the name of John S. Duffie, Levi Morrill and Peleg Soules, trustees of the Methodist Protestant church of Brockway circuit. The declaration does not allege that they sue as a corporation, nor was there in the case any sufficient evidence that the society was ever incorporated. The record of the society was given in evidence, from which it appeared that at a meeting held in December, 1868, three persons, of whom Levi Morrill was one, were chosen trustees of the church; "the said trustees to hold the property of the Methodist church, Brockway Center, Michigan district, in trust for said church." Whether this was intended as an act of incorporation we do not know; it was in itself ambiguous, and it was also incomplete to effect a statutory incorporation. Trustees, etc., v. Clark, 41 Mich. 730. There was no evidence of corporate action afterwards, previous to the subscription on which this suit was brought.

1. It was assumed on the part of the defence that the suit purported to be brought by a corporation, and that it must fail because the fact of corporate existence was not made out. But, as has already been said, the suit does not purport to be brought by a corporation, and the declaration does not allege that a corporation exists. The suit is brought by certain persons describing themselves as trustees for a certain religious society. Now, if the society is actually incorporated, the name they sue by may possibly be the corporate name; but, in the absence of any averment or recital of incorporation, we must assume that none exists or is relied upon. The attention of the circuit judge does not seem to have been called to the want of proof to show that the plaintiffs were trustees in fact, and therefore the defect, if it was one, is not available in this court. There is no doubt that the trustees of any incorporated society which is organized for a lawful purpose may receive gifts or promises on its behalf, and a mutual subscription may be supported even though no payee be named, provided the object is made definite and certain, as it unquestionably was in this case. Comstock v. Hond, 15 Mich. 237. The mutual promise of the subscribers are all the consideration the case requires. Underwood v. Waldron, 12 Mich. 73.

2. It is further objected that there was no evidence tending to support the contract declared upon; that the promise actually proved was not to be performed within a year, and consequently was void under the statute of frauds, because not in writing and subscribed by the party himself.

The only special count in the declaration was a count upon a promise to pay $25 presently; but we think the evidence tended to support this. The parties were at liberty to take one year's time or more on giving notes, but the defendant did not avail himself of this privilege. It is true that the evidence on this point was fairly open to another construction, but it is not pretended that the court erred in any ruling respecting it, provided there was any evidence of a promise to pay presently which could properly have been left to the jury; but if the witnesses who undertook to give the terms of the subscription paper remembered them correctly, the promise was set out in the special count of the declaration according to its legal effect.

3. The principle question in the case is whether the contract was void because made on Sunday. The plaintiff in error contends that the business of raising subscriptions on Sunday to pay off a church debt or to purchase a house of worship is within the prohibition of the statute, and that any contract made in the course of it is therefore void. The defendants in error dispute this, and insist that the case is one within the exceptions of the statute. The statute is as follows:

"No person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, except only works of necessity and charity, or be present at any dancing, or at any public diversion, show or entertainment, or take any part in any sport, game or play, on the first day of the week; and every person so offending shall be punished by a fine not exceeding $10 for each offence." Comp.Laws, � 1984.

Whatever labor, business or work is prohibited by this statute is confessedly illegal, and promises made in the course of it can support no action. So much is conceded.

Is the raising of money for the purchase of a house of worship a work of necessity or charity? That is the question; or perhaps it is a little narrower than this, namely: Is the solicitation of contributions from a congregation assembled on Sunday for religious worship, in order to pay for a house of worship, which has been erected for their occupation for religious purposes, a work of necessity or charity? The circuit judge was of opinion that the question involved an element of fact as well as of law, and he submitted it to the jury in that view. "If the agreement or contract," he instructed them, "was made on Sunday, it is void unless it is a work of necessity or charity for which it was made. Our statute prohibits the performance of business or labor on Sunday, except as to work of necessity or charity, and the supreme court has decided that all contracts made on that day are void, except for a work of necessity or charity. As to whether this subscription comes within this exception I shall leave it for you to determine. There may be honest differences of opinion on this subject, and therefore I leave it to you as a question of fact. And you are not to be controlled, in considering this, by the practice of churches. It is not what churches have done in this respect, but what they ought to have done in view of the statute. This law may be intended to prevent this business in churches. The raising of money to build churches may have been one of the objects contemplated by the statute. If you find that this subscription was not for a work of necessity or charity, it is void and cannot be ratified. If you find it to be a work of necessity or charity, it need not be ratified."

The judge was in error in supposing that the question was either wholly or partially a question of fact. It is a question of law purely, and cannot be left to...