Phipps v. Jones

• Decision Date: 27 January 1853
• Parties: Phipps <I>versus</I> Jones.
• Court: Pennsylvania Supreme Court

20 Pa. 260

Phipps versus Jones.

Supreme Court of Pennsylvania.

January 27, 1853.

ERROR to the Common Pleas of Chester county.

COPYRIGHT MATERIAL OMITTED

Lewis and Hickman, for plaintiffs in error.—It was contended that error existed in the charge as it respected proper parties to the paper. That no action could be maintained on an instrument unless it showed to whom the money is to be paid, and unless there be mutuality: Henry Blackstone 608; 1 Salk. 197; 1 Breese 155; 11 Mass. 113; 8 Id. 132; 12 Johns. 190; 2 Pick. 579, the case of subscriptions for the rebuilding of an academy. The opinion of the chancellor in the case of Stewart v. The Trustees of Hamilton College was said to have been overruled. See 1 Comstock 581.

It was observed that nothing was stated in the subscription paper as to the appointment of persons to receive payment. The meeting contemplated was to choose a building committee, and make such other regulations "as may be agreed upon." The consent of the defendants was necessary to render the action of the meeting binding on them: 1 Caine's Rep. 585; 4 Johnson 235; 7 Id. 87; 9 Wend. 336; 21 Id. 141; Story on Con. 448; 2 Pick. 580. The private judgment of each subscriber was to be exercised in the matter.

Notice of the proposed meeting should have been given to the subscribers generally, and the notice to about the tenth of the whole number was without effect as to those who did not attend.

P. F. Smith, for defendant in error.—It was alleged that notice of the proposed meeting was given to all of the contributors in the neighborhood, and that the notice to one of the defendants who refused to attend was binding on them: 9 Barr 254; 2 Jones 128.

A mutual promise amounts to a sufficient consideration: 2 Kent 465; Chitty on Con. 46-63. Reference was made to the following cases of promises or subscriptions, viz., 2 Denio 417; 20 Johns. 89, McAuley v. Billenger; 12 Mass. 192; 6 Pick. 427-433; 3 Barr 416; 5 Pick. 228.

The opinion of the Court was delivered, January 27, 1853, by LOWRIE, J.

There ought to be no doubt about the right of unincorporated religious societies to sue on a contract made with them in their associate capacity and for the legitimate purposes of their association, even though there be no persons named or described in the contract as trustees or committee-men on behalf of the society. Such associations have always, and especially since the Act of 1731, been recognised as having an associate and quasi corporate existence in law, with power to hold land and build appropriate houses, and of course with power to acquire rights by contract, and to vindicate them. And if the English common law forms are insufficient for such cases, we admit the infusion into our law of the plain equity principle that allows a committee of voluntary societies to sue and be sued as representatives of the whole: 1 Bro. C. C. 101; 13 Ves. 544; Story's Eq. Pl. § 116. There is, therefore, no difficulty about sustaining this action, if it has a contract to rest upon. In the case of Chambers v. Calhoun, 6 Harris 13, the congregation had been already formed, and the contract of subscription was for the purpose of erecting a new church, and it contained a promise to pay to the building committee, which had not then been appointed, and, when appointed, the promissor was one of them; yet the action against him in the name of his fellows, on behalf of the congregation, was sustained.

In the present case the association was not finally formed, nor the erection of a house concluded on, until after the death...