Toomer v. Alpha Lambda Club

• Decision Date: 27 October 1953
• Docket Number: 5 Div. 413
• Citation: 37 Ala.App. 331,67 So.2d 849
• Parties: TOOMER v. ALPHA LAMBDA CLUB.
• Court: Alabama Court of Appeals

Page 849

67 So.2d 849

37 Ala.App. 331

TOOMER v. ALPHA LAMBDA CLUB.

5 Div. 413.

Court of Appeals of Alabama.

Oct. 27, 1953.

Brown & McMillan, Opelika and Auburn, for appellant.

J. Sydney Cook, Jr., Auburn, for appellee.

HARWOOD, Judge.

In this case the plaintiff, S. L. Toomer, sued the Alpha Lambda Club, a corporation, for rents allegedly owed by the Club.

Count 1 claimed $400 due and unpaid on an annual lease commencing 1 September, 1950, and Count 2 claimed the same amount for use and occupancy. The cause was tried on pleas of the general issue.

The jury returned a verdict in favor of the defendant, and judgment was entered pursuant thereto. From this judgment the plaintiff below has perfected this appeal.

The evidence presented by the plaintiff below tends to show that in 1940 Mr. Toomer rented a house in Auburn to the Phi Kappa Tau fraternity. This fraternity continued to rent this house through the years.

On July 8, 1950 Mr. Toomer mailed the following letter to the fraternity:

'Phi Kappa Tau Fraternity

'Auburn, Alabama

'Gentlemen:

'Your rent starting September 1, 1950 will be $200.00 per month. This lease will run until August 31, 1951.

'Very truly yours,

'S. L. Toomer.'

Mr. Toomer testified that the rent, at $200 per month, was not paid for the months of July and August, 1951.

On cross examination Mr. Toomer testified in part as follows:

'Q. (By Mr. Cook) Mr. Toomer, have you ever conversed with any officer or agent of the Alpha Lambda Club, a Corporation? A. The Corporation?

'Q. The Alpha Lambda Club, a Corporation. A. No, I am not suing them at all.

'Q. You are not suing the Alpha Lambda Club? A. The Kappa Tau is in my house.

'Q. You are not suing the Alpha Lambda Club, a Corporation? A. No.

'Mr. Cook: On that, your honor, I ask that the suit be dismissed.

'The Court: Overruled.

'Mr. Cook: Reserve an exception.

'Q. You state you have never had any contact with any officer or agent of the Alpha Lambda Club, a Corporation? A. I didn't know they were existing.'

There was introduced into evidence through Mr. Toomer the ledger sheet showing his account with the 'Phi Kappa Tau Frat.' This account reflects that rents for July and August have not been credited as paid.

The plaintiff also introduced into evidence certificate of incorporation of the Alpha Lambda Club, filed in the Probate office of Lee County in April 1947, thus creating an incorporated social club as provided in Sections 139-149, Title 10, Code of Alabama 1940.

The certificate of incorporation described the objects of the corporation to be:

'The objects of the Club are the promotion of social intercourse among the members of the Club and between the members of the Club and the public in general, and the providing of a Club or Chapter House for the use of the Alpha Lambda Chapter of Phi Kappa Tau Fraternity at Auburn, Alabama.'

The plaintiff also introduced in evidence the minutes of the orginational meeting of the Alpha Lambda Club. These minutes show that on 14 April 1947 a constitution was adopted, and that it contained the following provision:

'And in addition thereto, on and after the 14th day of April, 1947, those persons who shall be active members of Alpha Lambda Chapter of Phi Kappa Tau Fraternity at Auburn, Alabama, and be graduate or undergraduate students of Alabama Polytechnic Institute shall during the time they are such active members, be members of said Club. And there shall also be members of said Club such persons as shall be elected to membership by the Board of Governors hereinafter provided for, and who shall have been at some time prior to election active members of said Alpha Lambda Chapter of Phi Kappa Tau Fraternity at Auburn, Alabama.'

The constitution provided for a board of governors invested with full control of the club, consisting of seven named members, being the same persons designated as the board of governors in the declaration for incorporation.

It was further provided that the club should meet annually on 'Alumni Day' occurring during commencement at the Alabama Polytechnic Institute.

The evidence introduced by the defendant tended to show that the Phi Kappa Tau fraternity had rented the premises in question since 1940, and that the rent had always been paid by checks drawn on the account of the fraternity, countersigned by the treasurer, the last of such checks being drawn on July 10, 1951.

The President and Treasurer of the Alpha Lambda Club during 1950 testified that the club had at no time through any of its officials negotiated with Mr. Toomer for any lease, nor had the club at any time, through its officials, passed any resolution to pay any rent.

There was also evidence tending to show that the Alpha Lambda Club was incorporated in order that money could be borrowed with which to build a house to be occupied by the Alpha Lambda Chapter of the Phi Kappa Tau fraternity, the fraternity being unable to own real estate because of its being an unincorporated association; that the Alpha Lambda Club did erect in Auburn a house at a cost of some $75,000, and that this house is now occupied by the fraternity; further that the fraternity has assumed the payments due on the mortgage by the club and these payments are made by the fraternity to the holders of the mortgage.

Admittedly there was no express assumption by the Alpha Lambda Club, Incorporated, of any liability of the Phi Kappa Tau fraternity, the association.

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