Neill v. Spencer

• Court: Appellate Court of Illinois
• Writing for the Court: MCCULLOCH, J.
• Citation: Neill v. Spencer, 5 Ill.App. 461, 5 Bradw. 461 (Ill. App. 1879)
• Decision Date: 30 November 1879
• Parties: JAMES L. NEILL ET AL.v.JULIUS SPENCER.

5 Ill.App. 461

5 Bradw. 461

JAMES L. NEILL ET AL.

v.JULIUS SPENCER.

Appellate Court of Illinois, Third District.

November Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Shelby county; the Hon. W. H. HESS, Judge, presiding. Opinion filed, November 19, 1879.

Messrs. MOULTEN, CHAFFEE & HEADEN, for appellants; that a mere offer without acceptance does not constitute a contract, cited Bishop on Contracts, § 174; McKinley v. Watkins, 13 Ill. 140; Esmay v. Garton, 18 Ill. 483; Storey on Contracts, § 377; Rommel v. Wingate, 103 Mass. 327; Fox v. Turner, 1 Bradwell 153.

The acts of appellee show that he regarded his contract as made with the whole church: St. Patrick's Church v. Gavalon, 82 Ill. 170.

Appellants are not liable personally: Doyle v. Teas, 4 Scam. 202; Hovey v. Magill, 2 Conn. 680; Means v. Swormstedt, 32 Ind. 88; Baldwin v. Bank, 1 Wall. 234; Bank v. French, 21 Pick. 486; Doane v. Dunham, 79 Ill. 131; U. S. L. I. Co. v. Advance Co., 80 Ill. 549; Munn v. Birch, 25 Ill. 35; Barker v. Garvey, 83 Ill. 184.

Parol evidence is admissible to show that the act was an official one: Mann v. Richardson, 66 Ill. 481; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326.

The contract must be construed by reference to the canons of the church, which form a part of it: Cheeney v. Chase, 58 Ill. 509.

The undertaking, if any, was that of the church, and appellants signed merely as agents: Barlow v. Cong. Soc., 8 Allen, 464; Powers v. Briggs, 79 Ill. 493; Bradley v. Boston Glass Co., 16 Pick. 350; Ballou v. Tolbert, 16 Mass. 460; Walker v. Wait, 50 Vt. 668; N. E. M. I Co. v. De Wolf, 8 Rich. 56; Mann v. Chawber, 9 Mass. 335; Shoe and Leather N. B. v. Dix, 123 Mass. 148; Hancock v. Yunker, 83 Ill. 208; H. R. & E. R. R. Co. v. Walsh, 85 Ill. 58; N. W. Distilling Co. v. Brant, 69 Ill. 658; Means v. Swormstedt, 32 Ind. 87; Vater v. Lewis, 36 Ind. 288; Duncan v. Niles, 32 Ill. 532.

Messrs. THORNTON & HAMILTON and MR. WILLIAM CHEW, for appellee; as to the right of a minister to recover compensation for his services, cited ex parte, Cumming, 4 Wall. 277; Dutch Church of Albany v. Bradford, 8 Cow. 457; First Religious Soc. v. Stone, 7 Johns, 113; Duffendorf v. Trustees, 20 Johns, 12; Chase v. Cheeney, 58 Ill. 509.

Appellants cannot deny the execution of the paper signed by them, where they have performed acts under it, recognizing its validity: Boggs v. Olcott, 40 Ill. 303; Hefner v. Dawson, 63 Ill. 403; Smith v. Newton, 38 Ill. 230.

To avoid personal liability the contract must show it was signed in a representative capacity: DeWitt v. Welton, 5 Seld. 571; Storey on Agency, § 278.

There is nothing to show that the society had a legal organization: Ada St. Church v. Garnsey, 66 Ill. 132; Rev. Stat. 1874, 292.

Not having a legal existence, appellants are personally liable: Ada St. Church v. Garnsey, 66 Ill. 132; Little v. Bailey, 87 Ill. 239; Burlingame v. Brewster, 79 Ill. 515; Powers v. Briggs, 79 Ill. 493; Taft v. Brewster, 9 Johns., 333; Sturdivant v. Hull, 59 Me. 172; Fiske v. Eldridge, 12 Gray, 474; Hills v. Bannister, 8 Cow. 32; Bradley v. Boston Glass Co., 16 Pick., 350.

MCCULLOCH, J.

This was a suit in assumpsit brought by appellee, who is a minister of the gospel in the Presbyterian Church, to recover of appellants his salary as pastor of the church at West Okaw. The declaration contains one special count upon the instrument hereinafter set out, and a common count for services rendered by appellee for appellants at their request, for services rendered by appellee as regular pastor of West Okaw congregation at request of appellants; for services rendered by appellee as regular pastor of appellants at their request; also for money had and received by appellants for the use of appellee, and for money due him on an account stated. Appellants pleaded the general issue, payment, and want of consideration for the promises.

A trial was had before the court without a jury, and a judgment was rendered against appellants for the sum of three hundred dollars. From this judgment they appeal to this court. On the trial in the court below, appellee introduced as the foundation of his claim an instrument in writing, in the following words:

“The congregation of West Okaw, being on sufficient grounds well satisfied of the ministerial qualifications of you, Julius Spencer, and having good hopes of our past experience of your labor, that your ministrations in the gospel will be profitable to our spiritual interests, do earnestly call and desire you to undertake the pastoral office in said congregation; promising you in the discharge of your duty all proper support, encouragement and obedience in the Lord.

And that you may be free from worldly cares and avocations, we hereby promise and oblige ourselves to pay to you the sum of eight hundred dollars for the first year, and one thousand dollars yearly thereafter, in regular quarterly payments, during the time of your being and continuing the regular pastor of this church.

In testimony whereof, we have respectfully subscribed our names this 23d day of February, A. D. 1875.

James L. Neill, G. M. Thompson, William McBurney, Fred. Orris, U. V. Stine-- Elders.

C. K. Roe, Jas. Koch, John Foster, Samuel Stewart--Deacons.

I hereby certify that the persons whose names are subscribed to the foregoing call, were duly authorized to do so by a public vote of the congregation, and that the call has been in all respects prepared as directed in chapter 15 of our form of government.

A. B. FRAZIER, Moderator.”

Appellee then proved, by his own testimony, as well as that of others, that he preached for the West Okaw Presbyterian church for over two years, worked in the Sunday-school, attended prayer meetings and visited them. He further testified that Thompson, one of the appellants, acknowledged the indebtedness and paid him his share, or one-ninth of the amount then due, and that Mr. Foster, who was then treasurer, accepted his statement of the amount due him. He also exhibited an account kept by him of receipts from the West Okaw church, wherein he gives credit for various sums of money collected from divers other members of the congregation, as well as from appellant. Foster, Larrimore and Showers were the trustees of the church.

On cross-examination, appellee admitted that he was never installed pastor of the West Okaw church; that the call offered in evidence was made out in accordance with the rules prescribed in the book containing the form of government of the presbyterian church; that he was present at the meetings of the presbytery at Taylorville, at Vandalia, and at Pana, while he preached at West Okaw, and knew of the action of the Presbytery on the matter of said call. He further testified that he never accepted the call, as that would have made it necessary for him to be installed; that he did not wish to be installed, because they did not pay promptly, as they had promised, and that finally he declined the call altogether. From May, 1877, until November of the same year, he preached for the same church, as stated supply, on another agreement, and received his pay for it. He said, also, that although he was not installed, he was pastor-elect of the church, and accepted as such by the church and the presbytery; that ministers, after their ordination, and before installation, act and officiate as pastor-elect.

B. Mills testified that he was a Presbyterian minister; that he knew appellee to be a faithful minister; that he had visited the congregation and found them satisfied with appellee, but found some dissension in the congregation, on account of which his salary could not be collected. He also testified that the confession of faith, including the constitution of the Presbyterian church in the United States, embodies the rules of government and discipline and usage of the church, by which it has been governed for two hundred years, and that it is the custom of the church to look for payment to the persons who sign the call.

On the part of appellants it is claimed that they signed the call as agents and officers of the West Okaw Presbyterian church, by the direction of the church, and for and on behalf of the church, in accordance with the usage, custom, rules and government of the church, and in a ministerial capacity only; that they simply “applied the executive hand as the instrument of another,” not intending, or being understood by any one, to personally bind themselves for the salary mentioned in the call. They further contend that, even if the call had been accepted by appellee, and if by reason thereof they would have become personally bound for his salary, yet, because the call was not accepted, and in consequence thereof appellee never became pastor of the church, the alleged contract lacked the element of mutuality, and they never became bound thereby. In support of these two propositions, appellants introduced in evidence so much of the constitution of the presbyterian church as was deemed necessary to show the nature of the church government, the relationship of the pastor to the church, and the orderly method of instituting the same. From this evidence it appears that “the church session consists of the pastor and ruling elders of a congregation;” that the pastor is the moderator of the session, except when for prudential reasons some other minister may be invited to preside; that “a presbytery consists of all the ministers, in number not less than five, and one ruling elder from each congregation within a certain district;” that the presbytery has power to install, remove and judge ministers; to examine, approve or censure the records of church sessions; and it is its duty to keep a fair record of its proceedings.

When the people of any congregation are prepared to elect a pastor, it is made the duty of the session to take measures to convene them for that purpose, and to that end to solicit the presence and counsel of some neighboring minister to assist them at...