McLaughlin v. Concordia Coll.

• Decision Date: 08 December 1885
• Citation: 20 Mo.App. 42
• Parties: C. MCLAUGHLIN, Plaintiff in Error, v. CONCORDIA COLLEGE ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

20 Mo.App. 42

C. MCLAUGHLIN, Plaintiff in Error,

v.CONCORDIA COLLEGE ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

ERROR to the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded with directions.

P. LEAHY & MCGOWAN, for the plaintiff in error.

HENRY KORTJOHN, for the defendants in error.

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

The plaintiff brought an action against the defendant before a justice of the peace upon an account for a balance due for work and labor done. He recovered a judgment before the justice and the defendant appealed to the circuit court.

On the trial in the circuit court he gave evidence to the effect that he was employed by Mr. Walsh, the architect and superintendent of Concordia college at the time of its erection in 1882, to do certain excavating. That he rendered services under this employment of the value of $171.35; that the sum of $91.35 was paid him, leaving a balance of eighty dollars still due.

Otto Hausen testified on the part of the defendant that he was secretary of a committee consisting of five members appointed by the German Evangelical Synod of Missouri, Ohio, and other states; that said synod held its meetings annually in Missouri, Ohio, and other states; that it was not an incorporated body; that the name of the college is the German Evangelical Lutheran College and Seminary; that the sign on the building was Concordia college.

The record then recites: “It was admitted that the defendant was incorporated. Defendant introduced testimony tending to show that the plaintiff sued the wrong defendant, to which testimony said plaintiff objected, but the court overruled the objection, to which ruling of the court the plaintiff then and there excepted. Defendant admitted that there were $85.20 due to the plaintiff, as rendered by the justice, for services had and received in excavating the grounds for the foundation of the college. This was all the evidence offered on the part of the defendant.”

The plaintiff then called Mr. Walsh, who testified that he was architect and superintendent of Concordia college in August and September, 1882, when the plaintiff worked there; that he gave him the time that he and his boys worked there; that the sign on the college denoting the name is Concordia seminary. He said: “May was the architect and he employed me. He employed me to superintend the work, and I employed McLaughlin, the plaintiff. May usually furnished me with money to pay the men who were employed on the building.”

Mr. Meyer testified as follows: “I am treasurer of the German Evangelical Lutheran Synod of Missouri, Ohio, and other states. The name of the college is Concordia college. The synod is composed of more than one thousand congregations scattered all over the country. The congregations send their representatives to the meeting of the synod. The synod is composed of clergymen and laymen. They hold their meetings annually in different parts of the country, Missouri, Ohio, Indiana, and other states. The synod appoint the committee for the government of the college. I am treasurer of the synod. I pay everything for the building of the college with the money of the synod. The college was erected from the money received by the synod from the voluntary contributions of the congregations all over the country. I paid for everything with the money received from the synod. The college is controlled and directed by the synod. They appoint the members of the faculty of the college and the different committees of it. I was treasurer of the synod and of the building committee when the college was in course of erection. I know Mr. May, the architect. The synod appointed him to superintend the work on the college, and he was paid for his services through me as treasurer. I paid the taxes of the college from the funds that I got from the synod. The students of the college pay nothing for their education. The object of the college is to prepare young men for the ministry of the church.”

Henry Westerman also testified as follows: “I am supervisor of the college. There are five of us. I was appointed by the synod when in session here in St. Louis. The synod controls the college. Its object is to prepare young men for the ministry. The college is owned and controlled by the synod.”

The plaintiff read in evidence the act incorporating the college from the Session Acts of 1852, p. 271. The title of the act is: “An act to incorporate The Concordia College of the German Evangelical Lutheran Synod of Missouri, Ohio, and other states.” It recites in its preamble that the members of the German Evangelical Lutheran Synod of Missouri, Ohio and other states, and their friends, are desirous of building and endowing a college in this state, to be called The Concordia College, for the purpose of aiding in the dissemination of knowlege, including all branches of academic, scientific, and theological instruction in general, and giving, moreover, to suitable persons desiring it, instruction in the creed and tenets of said denomination in particular. It then proceeds in the usual form to incorporate a number of named persons and their successors, by the name of “The Trustees of the Concordia College,” and recites their corporate powers, among which are, “to hold by gift, grant, demise, devise, or otherwise, any land, tenements, hereditaments, moneys, rents, goods, chattels, of whatever kind the same may be, which is or hereafter may be given, granted, devised, demised to, or purchased by them, for and to the use of the aforesaid college, and may sell and dispose of the same or any part thereof, or lease, rent, or improve the same in such manner as they shall think most conducive to the interest and prosperity of said college, and such property, real or personal, shall be held and applied in good faith solely for the purpose of education as set forth in the preamble of this act, and for no other or different purpose whatever.” Section 11 is as follows: “It shall be the duty of the board of trustees, as soon as the funds of the institution will justify it in their opinion, to cause to be erected a suitable building for a college and residence for the professors and students, or to procure the same by purchase or donation.”

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