I.w. Phillips & Co. v. Hall

• Decision Date: 28 May 1930
• Citation: 99 Fla. 1206,128 So. 635
• Court: Florida Supreme Court
• Parties: I. W. PHILLIPS & CO. v. HALL et al.

128 So. 635

99 Fla. 1206

I. W. PHILLIPS & CO. v. HALL et al.

Florida Supreme Court

May 28, 1930

Commissioners' Decision.

Error to Circuit Court, Hendry County; George W. Whitehurst, Judge.

Action by I. W. Phillips & Co. against F. Watts Hall and others. Judgment for defendants, and plaintiff brings error.

Reversed and remanded.

COUNSEL

Lucas & Twomey, of Tampa, for plaintiff in error.

Stewart & Presson, of Ft. Myers, for defendants in error.

OPINION

DAVIS C.

In this case, the plaintiff in error instituted an action upon a promissory note, which is in words and figures as follows:

'LaBelle Fla., Dec. 30, 1926.

No -----

'Ninety days after date, without grace, we, for value received, jointly as principals promise to pay to Marshall Jackson Co. or order, at LaBelle, Florida, the sum of Two Thousand & No/100 Dollars.

'In Gold or its equivalent in lawful money of the United States with interest after date at the rate of 8 per cent. per annum until paid. And it is agreed by the makers with the holders hereof that should this note be collected by legal process or by an attorney, we will pay all costs of the same and a reasonable Attorney's fee. And each of us, whether maker, surety guarantor or endorser, hereby waives presentment and demand for payment and notice of non-payment at maturity, and consents that this note or any part thereof, may be extended without further notice.

'Board of

Trustees of

Methodist Episcopal

Church South,

LaBelle, Fla.

F. Watts Hall

Wesley C. Richards

R. H. Magill

Joe M. Bryan, Trustee

E. M. O'Bannon.

'Due April 1, 1927.

'$2,000.00.'

In the declaration it is alleged that the note was duly and regularly indorsed and delivered to the plaintiff, and that the plaintiff is the bona fide holder of same in due course. Certain of the defendants interposed a joint demurrer to the declaration, and the defendant Joe M. Bryan filed a separate demurrer to the said declaration. The joint demurrer was sustained by the court upon the following grounds:

'That said declaration fails to state a cause of action against these defendants, or any of them.

'That said declaration shows on its face that these defendants are not liable in the capacity in which they are sued.'

The separate demurrer of Joe M. Bryan was sustained by the court upon the following grounds:

'Because the plaintiff sues the defendant, Joe M. Bryan in his personal capacity, whereas the copy of the cause of action attached to plaintiff's declaration and made a part thereof, shows on its face that the promissory note, which is the cause of action, was not signed by the said Joe M. Bryan in his personal capacity, but was signed by him on behalf of his principal, Methodist Episcopal Church, South LaBelle, Florida; that is to say that the said cause of action shows on its face that the said Joe M. Bryan signed the same in his representative capacity as Trustee, Board of Trustees of Methodist Episcopal Church, South LaBelle, Florida.

'Because the declaration and the cause of action attached thereto, and made a part thereof, does not show any personal liability on the part of the said Joe M. Bryan.'

A judgment having been entered in favor of the defendants, the case is now here on writ of error.

It does not appear from the pleadings that the Methodist Episcopal Church South, La Belle, Fla., is an unincorporated religious association, which operates through a board of trustees, but that is conceded by defendants in error, inasmuch as it is stated in their brief that that is a matter of common knowledge.

Section 6780(4694) of the Compiled General Laws of Florida 1927, reads as follows:

'Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal does not exempt him from personal liability.'

Assuming, without deciding, that the words 'Board of Trustees of Methodist Episcopal Church South LaBelle, Fla.,' appearing in front of the names of the makes of the note, and that the word 'trustee,' appearing after the name of Joe M. Bryan, are words added to the signatures, sufficient to indicate that the makers signed for or on behalf of the Methodist Episcopal Church, South, La Belle, Fla., we are confronted with the question whether the said church is a principal in the sense that agents, who execute a contract purporting to bind the said church, incur no personal liability on such contract.

We find no statute authorizing an unincorporated religious society or association to make contracts or to sue and be sued in its common name, and it is generally, if not universally, recognized that, in the absence of a statute, such societies or associations have no legal existence, and that at common law they can neither make contracts nor sue and be sued in their common name. 5 C.J. 1345, 1365 and 1369.

In 2 Corpus Juris, 808, we find that the authors have stated the following rule:

'An agent will be held personally liable where he professes to enter into a contract for a principal who is at the time non-existent, or legally incompetent or irresponsible, even though in thus entering into the contract he acts in good faith, as an agent assuming to contract for a principal must make a contract binding upon some principal, or else he himself is liable. In accordance with this rule it has been held that an agent is personally liable where he professes to enter into a contract on behalf of an unincorporated association, club or committee, or on behalf of a corporation, before its incorporation.'

In the discussion of a case similar to the one which we have now under consideration, the Supreme Court of Oregon in Cousin v. Taylor, 115 Or. 472, 239 P. 96, 97, 41 A. L. R. 750, 753, said:

'It has always been a familiar principle of the law of agency that one professing to act as agent, unless he binds his principal, is ordinarily held to bind himself. Since the contract entered into by Taylor could not be enfored against the association, Taylor, in acting as agent for the association of which he was an officer and member, in entering into a contract which has been performed by the other contracting party, is personally liable under the contract, and the same is true as to those who either assented to his appointment or to the contract which he entered into. In the case of a voluntary unincorporated association, in the absence of statute, the law holds the officer or member thereof, who assumes to act for the association, directly responsible as principal, and the courts usually base the reason for the rule upon the ground that the officer or member has assumed to act for a principal which has no legal existence, and since the principal is not bound such officer or agent is bound and becomes personally responsible for the consideration contracted to be paid to the other contracting party for his performance of the contract. Otherwise, no one would be liable notwithstanding that the other contracting party has himself fully performed.'

In Summerhill v. Wilkes, 63 Tex.Civ.App. 456, 133 S.W. 492, 493, a case where the building committee of a church was sued on a contract made by the 'Cumberland Presbyterian Church of Abbott, by F. B. Wilkes, chairman of its building committee' with the Taxas Seating Company, which was assigned to the plaintiff, Summerhill, the court said, among other things:

'The law is that an unincorporated church organization cannot be made liable on its contracts. No can an officer of such church organization be made liable in his official capacity; but a contract signed by an officer in his official capacity binds him individually and not the church.'

In Forsberg v. Zehm, 150 Va. 756, 143 S.E. 284, 61 A. L. R. 232, we have a case where the stewards of Ghent Methodist Episcopal Church South were used personally for a breach of a contract of employment of plaintiff as organist and choir leader, and it was therein contended by the defendants that the contract was made through agents with a known principal named in the instrument, and therefore they were not liable to suit. The position of the court as to this contention is briefly stated in the first headnote to the case as reported in 61 A. L. R. 232, as follows:

'That a church is named as party in a contract for the services of a music director does not, if the church is unable to contract, prevent the members of the board acting for the church from being individually bound by the contract.'

In Minnesota there is a statute which in part reads:

'When two or more persons transact business as associates and under a common name * * * they may be sued by such common name.' Gen. St. 1923, § 9180.

And yet in Eliason State Bank v. Montevideo Baseball Ass'n, 160...