Ash v. Guie

• Decision Date: 02 May 1881
• Citation: 97 Pa. 493
• Parties: Ash et al. <I>versus</I> Guie to use, etc.
• Court: Pennsylvania Supreme Court

Page 493

97 Pa. 493

Ash et al. versus Guie to use, etc.

Supreme Court of Pennsylvania.

March 25, 1881.

May 2, 1881.

March 25th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Chester county: Of January Term 1880, No. 337.

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R. E. Monaghan (with him P. F. Smith), for plaintiff in error.— The members of the Williamson Lodge were not chargeable by reason of their membership for the acts of any of their co-members. The defendants were members of a club or benevolent association which had no business object. There was no capital stock nor community of goods or of labor or of profit and loss. There was no intention to form a partnership, nor did they hold themselves out to the world as partners. They are not liable except for the acts of their agents, within the scope of their duty or the objects of the association. The building of a temple, two rooms of which were occupied by the lodge and the remainder rented for profit, was not within the ordinary affairs of the lodge; and no member is bound for obligations thereby incurred who did not authorize or participate in the borrowing of money. No agency is implied from the mere fact of association: Story on Part. 144, and note; Eichbaum v. Irons, 6 W. & S. 68; 1 Lindley on Part. 55-56; Flemyng v. Hector, 2 M. & W. 172; Todd v. Emly, 7 Id. 432; Livingston v. Lynch, 4 Johns. Ch. 594. The signing of the certificate by the officers was outside the scope of their duty, and ultra vires. The common seal of the lodge to the certificates, unlike a corporate seal, could bind no members who did not individually adopt it as their own.

Guie, Wells and Doan, parties to the suit, were not competent witnesses to charge the estates of deceased defendants: Act of April 15th 1869, Pamph. L. 30; Karns v. Tanner, 16 P. F. Smith 297; Hanna v. Wray, 27 Id. 27; Standbridge v. Catanach, 2 Norris 368; Brady v. Reed, 6 Id. 111. The Act of May 25th 1878, Pamph. L. 153, does not remove their incompetency. It is limited to suits against surviving partners.

But if the defendants were partners, the court erred in allowing the case to be tried against the surviving defendants only: Act of March 22d 1861; Dingman v. Amsink, 27 P. F. Smith 114; Brady v. Reed, supra. The suit is against partners under an alleged sealed instrument. But partners have no authority to bind the partnership with a seal, unless expressly authorized: Story on Part. 117; Gerard v. Basse et al., 1 Dall. 121; Overton v. Tozer, 7 Watts 331; Snyder v. May & Klose, 7 Harris 235; Bewley v. Tams, 5 Harris 485; Johns v. Battin, 6 Casey 84; Hoskinson v. Eliot et al., 12 P. F. Smith 393.

R. Jones Monaghan, for the defendant in error.—The jury was properly sworn against the survivors. The common-law rule, that an action against joint contractors would, on the death of one defendant, abate, was changed by the statute, 8 & 9 W. 4, c. 3, which is in force in Pennsylvania: Roberts Dig. ^*142; Walter v. Ginrich, 2 Watts 204; McCabe v. United States, 4 Id. 325; Given v. Albert, 5 W. & S. 339; Insurance Co. v. Spang, 5 Barr 113; Miller v. Reed, 3 Casey 248. This statute was not repealed by the Act of March 22d 1861, Pamph. L. 186, Purd. Dig. 39, pl. 12; Machette v. Magee, 9 Phila. 24; Hollenbach v. Moore, 1 W. N. C. 192; Hoskinson v. Elliott, 12 P. F. Smith 393; Neal's Ex'rs v. Gilmore, 29 Id. 426.

The witnesses Wells, Doan, Guie and McCaughey were competent. The jury were sworn to try the issue between living parties only; both sides were on an equality and both could testify. The case falls within the Act of 1869, and is not within any of the exceptions. The judgment recovered against the survivors does not bind the estate of any dead member. Moreover, the Act of May 25th 1878, Pamph. L. 153, is applicable, as the witnesses were only called to testify as to matters which occurred "between the surviving partners and the adverse party."

The defendants were jointly liable as partners. The members were jointly interested in the capital stock and property, and in the profit and loss thereon. Lodges of Free Masons have been treated as partnerships in England: Lloyd v. Loaring, 6 Ves. 773; Beaumont v. Meredith, 3 Ves. & B. 180.

The plea of former recovery cannot avail the defendants, because the former suit was not between the same parties, but was against "The Williamson Lodge" only by its title. The record does not show a judgment against any of these defendants.

The defendants, by their acts or silence, ratified the use of the seal on the certificate, and were bound thereby, but if this were otherwise, our judgment may be supported under the common counts in debt contained in the narr.

Mr. Justice TRUNKEY delivered the opinion of the court, May 2d 1881.

One of the defendants, called by plaintiffs, testified: "The full title of our lodge is Williamson Lodge, No. 309, F. and A. M.; F. and A. M. means Free and Accepted Masons; the purposes of our lodge are charitable, benevolent and social." This is the evidence as to the objects for which the association was formed, and without proof of its constitution or rules respecting admission of members and the management of its affairs it was held to be a common partnership. A partnership has been defined to be a "combination by two or more persons of capital, or labor, or skill, for the purpose of business for their common benefit." It may be formed, not only for every kind of commercial business, but for manufacturing, hunting, and the like, as well as for carrying on the business of professional men, mechanics, laborers, and almost all other employments. It would seem that there must be a community of interest for business purposes. Hence, voluntary associations or clubs, for social and charitable purposes, and the like, are not proper partnerships, nor have their members the powers and responsibilities of partners: Parsons on Part., 6, 36, 42.

A benevolent and social society has rarely, if ever, been considered a partnership. In Lloyd v. Loaring, 6 Vesey 773, the point was not made, but Lord ELDON thought the bill would lie on the ground of joint ownership of the personal property in the members of a Masonic lodge; there was no intimation that they were partners. Where a society of Odd Fellows, an association of persons for purposes of mutual benevolence, erected a building, which was afterwards sold at sheriff's sale in satisfaction of mechanics' liens, in distribution of the proceeds, it was said that, as respects third persons, the members were partners, and that lien-creditors, who were not members, were entitled to preference as against the liens of members: Babb v. Reed, 5 Rawle 151. Had the members been called joint-tenants of the real estate, the same principle in the distribution would have applied. In Flemyng v. Hector, 2 M. & W. 172, Lord ABINGER stated the difference between a body of gentlemen forming a club and meeting together for one common object, and a partnership where persons engage in a community of profit and loss, and each partner has the right of property for the whole, and in any ordinary transactions may bind the partnership by a credit. He held that a club and its committee must stand on the ground of principal and agent, and that the authority of the committee depends on the constitution of the club, which is to be found in its own rules. After noting the rules of the club, in the case before him, he says: "It therefore appears that the members in general intended to provide a fund for the committee to call upon. I cannot infer that they intended the committee to deal upon credit, and unless you infer that that was the intention, how are the defendants bound?" A mutual beneficial society partakes more of the character of a club than of a trading association. Every partner is agent for the partnership, and as concerns himself he is a principal, and he may bind the others by contract, though it be against an agreement between himself and his partners. A joint tenant has not the same power, by virtue of the relation, to bind his co-tenant. Thus, one of several co-adventurers in a mine, has not, as such, any authority to pledge the credit of the general body for money borrowed for the purposes of the concern. And the fact of his having the general management of the mine makes no difference, in the absence of evidence from which an implied authority for that purpose can be inferred: Ricketts v. Bennett, 4 M., G. & S. 686, (56 Eng. C. L.).

Here there is no evidence to warrant an inference that when a person joined the lodge he bound himself as a partner in the business of purchasing real estate and erecting buildings, or as a partner, so that other members could borrow money on his credit. The proof fails to show that the officers or a committee, or any number of the members, had a right to contract debts for the building of a temple, which would be valid against every member from the mere fact that he was a member of the lodge. But those who engaged in the enterprise are liable for the debts t...