Ferris v. Thaw

• Decision Date: 12 February 1878
• Citation: 5 Mo.App. 279
• Parties: MARY J. FERRIS, Respondent, v. CHARLIE THAW ET AL., Appellants.
• Court: Missouri Court of Appeals

5 Mo.App. 279

MARY J. FERRIS, Respondent,

v.CHARLIE THAW ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 12, 1878.

1. Where certain persons, organized as a club, expressly authorize their presiding officer to execute a note in the name of the club, the note, when made, to be used in making purchases for the use of the club, and the note is executed and the purchases made in accordance with such direction and authorization, those persons who thus authorized the use of the club name became partners as to this particular transaction, and are each individually liable on the note to the person who advanced money thereon, under the common name assumed by them. Each was a principal in the transaction, and is regarded as having adopted the club name as his own, and as having signed the note, through an agent, in that name. And where, on maturity of this note, it is renewed by another, executed in the same manner and by authority of the same men, this note is not the note of the agent, but of those expressly authorizing such use of the club name.

2. Where it appears from the attendant circumstances that it was not the intention to bind the agent, and that the credit was not given to him, a note signed by the agent authorized to execute the note for the company, with the name of the company following that of the agent, will be the note of the company, and not the sole obligation of the agent.

APPEAL from St. Louis Circuit Court.

Affirmed.

D. W. SADLER, for appellants: The note offered in evidence as the note sued on was not such a note as described in the petition. It was the individual note of Charlie Thaw, and the court should not have allowed it to be read in this action.--Story on Prom. Notes, sec. 65, and note; Pentz v. Stanton, 10 Wend. 271; Stackpole v. Arnold, 11 Mass. 27 The court below erred in permitting the minutes of the lodge, of Sept. 24, 1869, to be read to the jury for any purpose whatever, more especially as it did not tend to prove any allegation of the petition.-- Williams v. Carpenter, 28 Mo. 453; Childress v. Cutter, 16 Mo. 24; Morrissey v. Wiggins Ferry Co., 47 Mo. 521. The court below should not have allowed the note dated Sept. 30, 1869, to be read to the jury. It had been surrendered, and the note sued on accepted in its stead. The note of Sept. 30, 1869, was a very different instrument from the one described in the petition, and the introduction of it calculated to mislead the jury.-- Green v. Gallagher, 35 Mo. 226; Eddy v. Baldwin, 32 Mo. 369. Where there is no evidence upon which to found an instruction, it should not be given.-- Fike v. Clark, 55 Mo. 105. An instruction which is inconsistent with plaintiff's petition, and not applicable to the issues in the case, or which is inconsistent with other proper instructions given, should be refused.-- Quinlivan v. English, 44 Mo. 46; Budd v. Hoffheimer, 52 Mo. 297; Henschen v. O'Bannon, 56 Mo. 289; Thomas v. Babb, 45 Mo. 384; s. c., 50 Mo. 472. There was no evidence of a renewal of the note of Sept. 30, 1869.-- Budd v. Hoffheimer, 52 Mo. 297. Voluntary associations for social or charitable purposes, and the like, are not properly partnerships, nor have their members the powers or responsibilities of partners; nor can the majority bind the minority, except by special agreement.--Pars. on Part. 42, note c; Fleming v. Hector, 2 Mee. & W. 172; Fay v. Noble, 7 Cush. 188 Woodward v. Cowan, 41 Me. 1; Post v. Kimberly, 9 Johns. 470; Livingston v. Lynch, 4 Johns. Ch. 592; Coll. on Part., sec. 198, and note; Story on Part., sec. 125. Members of voluntary associations are to be treated as individuals, holding jointly the property of the association. And if obligations are entered into, or debts contracted, they are not entered into as partners, but as individuals.-- Fells v. Read, 3 Ves. 70; Lloyd v. Loaring, 6 Ves. 773. If there was no corporation, all its pretended acts as such were void; it could create no agents, nor could it confer any authority on any one to act in its behalf; all those who pretended to act for it were acting without authority; if it had no power to issue the note sued on, then those who acted as such agents are liable, and no others.-- Hunt v. Salisbury, 55 Mo. 310; Fay v. Noble, 7 Cush. 188; Hampton v. Speckenagle, 9 Serg. & R. 212; Medill v. Collier, 16 Ohio St. 599; Story on Ag., sec. 264 a, and note. Where no legal cause of action is set out in the petition, the judgment will be arrested.-- Langford v. Sanger, 40 Mo. 160; 47 Mo. 457, House v. Powell, 45 Mo. 381; 28 Mo. 335.

E. B. SHERZER, for appellant Ryder: The members of voluntary associations are not partners.-- Bright v. Hutton, 12 Eng. Law & Eq. 1; White v. Brunell, 3 Abb. Pr. 318; Cox v. Bodfish, 35 Mo. 302; Fay v. Noble, 7 Cush. 188. If the principal does not exist, or if unauthorized by him, the act is that of the agent, and he is individually liable.-- Hunt v. Salisbury, 55 Mo. 310; Lapsley v. McKinstry,38 Mo. 245; Byars v. Doore's Administrator, 20 Mo. 284; Allen v. Pegram, 16 Iowa, 163. It is error to admit testimony which has no relation to the issues.-- Eddy v. Baldwin, 32 Mo. 369; Blair v. Corby, 29 Mo. 480. Thaw, in signing the note, did not act or purport to act as agent for Ryder, and Ryder's assent to the action of Thaw does not constitute Thaw his agent, or amount to a ratification.-- Pittsburg, etc., R. Co. v. Gazzam, 32 Pa. 340; Sanderson v. Griffiths, 5 Barn. & Cress. 909; Vere v. Ashby, 10 Barn. & Cress. 288; Ferry v. Taylor, 33 Mo. 323. His name not appearing on the note, Ryder could not be sued thereon.-- Kelner v. Baxter, 2 C. P. 174; Rogers v. Carver, 21 Mo. 517.

NOBLE & ORRICK, for respondent: “Polar Star Lodge, No. 79,” is not a corporation, and cannot be sued as such.-- Hunt v. Salisbury, 55 Mo. 310. It was an ostensible corporation, without legal existence, and its members must be treated as partners.-- Wells v. Gates, 18 Barb. 554; Hill v. Beach, 1 Beas. 31; Pars. on Part. 6; Gow on Part. 5; 2 Rawle, 263. Those members who either authorized the execution of the note, or ratified it after execution, are bound by it.-- Williams v. Bank, 7 Wend. 542; Babb v. Reed, 5 Rawle, 151; Cross v. Jackson, 5 Hill, 480; 4 Serg. & R. 356. Where the officer or agent of a voluntary association signs a note with his own name, followed by the style of his office and the name of the association for which he acts, such note is not necessarily his sole obligation.-- McLellen v. Reynolds, 49 Mo. 312; Smith v. Alexander, 31 Mo. 193; Shuetze v. Bailey, 40 Mo. 69; Munn v. Johnson, 42 Mo. 74.

BAKEWELL, J., delivered the opinion of the court.

This action is upon a negotiable promissory note for $4,000, dated Oct. 3, 1870, at twelve months, executed by “Charlie Thaw, W. M. Polar Star Lodge, No. 79,” to the order of “John W. Luke, Treasurer,” and by him indorsed. There was a verdict and judgment for plaintiff; and defendants appeal.

On the trial, evidence was introduced tending to show that on Sept. 30, 1869, Polar Star Lodge, No. 79, of Ancient Free and Accepted Masons, was a voluntary association of persons, organized according to masonic rules, and meeting in St. Louis. Appellants and others were members of the association. In September, 1869, the lodge desired to assist the Masonic Hall Association, a corporation owning the masonic building in St. Louis in which Polar Star Lodge met. The Masonic Hall Association was embarrassed, and the lodge agreed to purchase $5,400 of its second-mortgage bonds. In order to make the purchase, it became necessary to borrow $4,000; and that this might be done, a note was made by defendant Thaw, worshipful master of the lodge, to the order of defendant Luke, who was then its treasurer. This note was indorsed by Luke, by all the defendants except Defriez, and by eight other members of the lodge; and on the security of this note, plaintiff advanced $4,000. All of the appellants were present at a lodge meeting held six days before the date of this note, at which meeting the matter was discussed, and the fact stated, and entered in writing on the proceedings of the lodge, that the note had been executed and indorsed, and by whom, and that the moneys received had been paid over to the Masonic Hall Association, which had transferred, as security, $5,800 second-mortgage bonds. This action was ratified by a vote of the lodge at which all the appellants were present. The coupons of the mortgage bonds were used by the lodge for paying rent to the Masonic Hall Association for the room in which the lodge met, and the semi-annual interest on the note was paid by the lodge. Before the maturity of the note, the lodge caused articles of incorporation to be filed in the Circuit Court, and obtained a certificate of incorporation; but no copy of the articles was ever filed with the secretary of state; the incorporation, therefore, was never consummated. When the original note matured, in September, 1870, the lodge could not conveniently pay it; and, at a meeting of the lodge, Luke and Thaw were appointed a committee to hypothecate the bonds or renew the lodge note, as they saw proper. The committee determined to renew the note; and, in renewal, executed the note in suit, on which, up to Jan. 17,1876, the semiannual interest seems to have been paid. The old note was taken up by the new note, now in suit; and, together with the new note, there were deposited with the banker of plaintiff the Masonic Hall Association bonds for the face value of $5,800, then worth eighty-five cents on the dollar. A witness says that these bonds were deposited as collaterals. No writing to that effect was given; and it seems that the Polar Star Lodge had free access to these bonds, and regularly used the coupons. What the bonds were worth at the date of the suit, or what has become of them, does not appear. The action of the committee in renewing the note was ratified at a meeting of the lodge, at which Thaw says that himself, Luke, Ryder, Defriez, Rogers,--that...