Cheeny v. Clark

• Decision Date: 01 February 1830
• Citation: 3 Vt. 431
• Parties: GERSHOM CHEENY et als. v. ALANSON CLARK
• Court: Vermont Supreme Court

3 Vt. 431

GERSHOM CHEENY et als. v. ALANSON CLARK

Supreme Court of Vermont, Rutland

February, 1830

[Syllabus Material]

This was a writ of error to reverse a judgement rendered by the county court, in an action on book account, in which the plaintiffs in error were defendants, and the defendant in error was plaintiff. The auditor's report, on which the judgement was rendered, and to which exceptions were taken in the court below, stated, that the services charged in the plaintiff's account were performed by him on the congregational meeting house in Rutland; that the defendants were a committee appointed to superintend the building of said house agreeably to certain articles of agreement subscribed by the share-holders, which were annexed to the report; that before all the services were performed, Abel Page, one of the defendants, was by the proprietors of said house discharged from said committee, and John Barr appointed in his place, but after the appointment of Barr payments were made to the plaintiff to a greater amount than the services performed after said appointment. The articles of agreement were signed by the proprietors, amongst whom were the plaintiff and the defendants. The parts of said articles material to be stated, are as follows: " We the undersigned, desirous of erecting an edifice, to be dedicated to Almighty God, in the east parish of Rutland, for the use and benefit of said east parish as a congregational meeting-house, hereby bind ourselves to pay to a committee to be appointed as herein after provided, or to their successors, or their order, for the number of shares annexed to our names respectively upon the consideration herein after mentioned.

1. The meeting house and ground attached thereto is estimated to cost six thousand six hundred dollars, and the number of pews or slips on the lower floor to be erected thereon shall be sixty-six, which at $ 100 each will amount to the aforesaid estimated cost of said meeting-house. The number of pews shall therefore be sixty-six, and the price of each share shall be $ 100, and the person who shall subscribe for one share shall be entitled to one pew or slip.

2. The place on which said meeting house shall be erected, and also the plan of erecting the same, shall be determined by a majority of the subscribers or share-holders, each subscriber voting according to his number of shares.

3. The third article prescribes the mode of calling meetings of the subscribers.

4. The erecting said meeting house shall be superintended by a committee of three, who shall be called the building committee, who shall be appointed from among the subscribers or share-holders, and exercise their duties during the pleasure of the subscribers or share-holders. Provided that said committee are and shall be subject to the control and direction of the subscribers or share-holders in all things pertaining to their duties; and provided also, that the subscribers or share-holders may at all times remove one or more of said committee, and appoint other or others, and also fill all vacancies that may happen therein by resignation or death.

5. When the meeting house shall be completed, the location of each subscriber's right to a pew or pews shall be determined by putting the choice at auction in numerical order until all the pews are disposed of, and the highest bidder on each choice shall be entitled to the choice he shall purchase. And the aggregate sum, as also any surplus that may remain unexpended, shall, after paying all contingent expenses which may be incurred, be averaged among the subscribers according to their number of shares.

6. The sixth article provides that the amount of each share subscribed for shall be paid by installments of $ 20 each, at different times, the last being payable in a year and a half."

Royce and Hodges, for the plaintiffs in error,--contended, That, in the absence of all evidence of an express understanding on the part of the committee, the presumption arising from the facts reported, taken in connection with the articles of association, showed that the credit of the society, and not that of the committee, was pledged for the payment of the defendant...