Meriwether v. Atkin

• Decision Date: 03 May 1909
• Citation: 119 S.W. 36,137 Mo.App. 32
• Parties: HUNTER L. MERIWETHER, Appellant, v. W. W. ATKIN, Respondent
• Court: Kansas Court of Appeals

119 S.W. 36

137 Mo.App. 32

HUNTER L. MERIWETHER, Appellant, v. W. W. ATKIN, Respondent

Court of Appeals of Missouri, Kansas City

May 3, 1909

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

Geo. H English, Jr., for appellant.

(1) The plaintiff made a case sufficient to go to the jury, even if the defendant was not a participant in the particular meeting at which the minutes showing the adoption of the contract in question were approved. Ferris v. Thaw, 5 Mo.App 279; Ferris v. Thaw, 72 Mo. 446; Richmond v Judy, 6 Mo.App. 465; Insurance Co. v. Burkett, 72 Mo.App. 1; Heath v. Goslin, 80 Mo. 310; Riffe v. Proctor, 99 Mo.App. 601. (2) The court erred in excluding the minutes of the meetings of October 22 and October 29, and the roll of officers, which tended to show defendant's assent to the execution of the contract in question. 17 Cyc., 405; Wigmore, Ev., section 437; Grain Co. v. Grain Co., 119 Mo.App. 119; Iron Co. v. Insurance Co., 118 Mo.App. 85; Pope v. Railway, 99 Mo. 400; Hastings v. Railroad, 58 Mo. 302. (3) The following cases are the only ones found in this State which treat of the liability of members of unincor-porated societies (not for profit) to their creditors: Ferris v. Thaw, 5 Mo.App. 279; Ferris v. Thaw, 72 Mo. 446; Richmond v. Judy, 6 Mo.App. 465; Insurance Co. v. Burkett, 72 Mo.App. 1; Heath v. Goslin, 80 Mo. 310; Riffe v. Proctor, 99 Mo.App. 601.

Scarritt, Scarritt & Jones, for respondent, filed argument.

OPINION

BROADDUS, P. J.

This is a suit for alleged violation of contract. In 1903 plaintiff was the owner of certain real estate in Kansas City, Kansas, upon which he intended to erect a three-story building. The defendant was the presiding officer of an unincorporated association known as Wyandotte Aerie No. 87, Fraternal Order of Eagles, which had a lodge room in Kansas City, Kansas. Plaintiff's evidence tended to show tat negotiations were entered between plaintiff and defendant with the object on plaintiff's part of constructing the third floor of his proposed building as a lodge room for the occupancy of defendant's lodge. Defendant told plaintiff he would place the matter before the lodge and would appoint a committee to take up the matter with him. At a meeting of the lodge, the defendant called its attention to the plaintiff's proposition and appointed a committee of three of the members, to-wit, O. L. Turner, John Quinn and J. L. Carlisle, which committee had a meeting with plaintiff in reference to the proposition. Plaintiff then caused his architect to prepare sketches to accord with the suggestions of the committee. Afterwards, plaintiff addressed the following letter to the chairman of the committee:

"Oct. 21, 1903.

"Mr. J. L. Carlisle,

"Member of Com. of Lodge of Eagles,

"Kansas City, Kan.

"Dear Sir: I propose to erect on my property at the corner of Minnesota avenue and Nugent street a building in accordance with plans shown to your committee. I submit herewith a sketch of the third floor with gallery and roof-garden according to the ideas indicated by your committee. I propose to lease you this entire third floor and roof-garden for a period of five or ten years at eighty ($ 80) dollars per month. Please have this matter acted upon promptly by your lodge and let them say definitely whether or not they will accept the proposition.

"This building is to be a first-class structure with ornamental dark brick front. The stairway is to be wide and easy.

"Yours truly,

"H. M. MERIWETHER."

The sketch mentioned accompanied the letter. In answer to this communication, plaintiff received the following:

"Kansas City, Kan., Oct. 22, 1903.

"Mr. H. M. Meriwether,

"617 N. Y. Life Bldg.,

"Kansas City, Mo.

"Dear Sir: By the unanimous vote of Aerie the proposition contained in yours of the 21st inst. addressed to Mr. J. L. Carlisle is accepted and the Trustees authorized to make the contract for five years lease with privilege of ten years. There may be a few minor details to change in plans. We would like to know something definitely when the building will be ready for occupancy, so that our relations with the owners of our present quarters can be determined."

This paper was signed by the members of the "Committee on Hall" and by the trustees of the lodge. The minutes of the lodge show that the plaintiff's written proposal was submitted to the lodge at a regular meeting held October 22, 1903, and that the committee was authorized to accept plaintiff's proposal and to enter into a contract with plaintiff for a lease of the third floor of said building. The defendant was not at this meeting of the lodge, but he was present at the subsequent meeting when the minutes of the former were read and approved.

At the close of the plaintiff's case, the defendant submitted a demurrer to his evidence which was overruled, but, subsequently, after defendant had introduced certain evidence, the court of its own motion struck out all of the defendant's evidence and instructed the jury to find for defendant, at which state of the proceedings plaintiff took nonsuit and was granted leave to move to set it aside. The plaintiff filed his motion to set aside the nonsuit, which the court overruled and rendered judgment for defendant. Plaintiff appealed.

The plaintiff brings his case here upon the theory that under the law he was entitled to a judgment upon the established facts. The plaintiff relies on certain decisions of the appellate courts of the State to sustain his theory to which we will call attention.

In Ferris v. Thaw, 5 Mo.App. 279, it is said that "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 purchase 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 the money thereon, under the name assumed by them." The case was appealed to the Supreme Court and the decision was affirmed. 72 Mo. 446. "Associations and clubs, the objects of which are social or political and not for purposes of trade or profit, are not partnerships, and...