Tyree v. Bingham

• Decision Date: 19 May 1890
• Citation: 100 Mo. 451,13 S.W. 952
• Parties: TYREE et al. v. BINGHAM et al.
• Court: Missouri Supreme Court

13 S.W. 952

100 Mo. 451

TYREE et al. v. BINGHAM et al.

Supreme Court of Missouri.

May 19, 1890.

BENEVOLENT SOCIETIES — MISUSE OF FRANCHISE — REMEDIES.

Members contributing to a charitable corporation organized to provide a home for the orphans and widows of Confederate soldiers from Missouri, not being pecuniarily interested in nor trustees of the fund, cannot maintain an action against the corporation and its officers for non-user or misuser of the franchise, and for a receiver to distribute the fund among the beneficiaries, the proper remedy being, under Rev. St. Mo. § 984, by quo warranto by the attorney general or circuit attorney on the relation of any person desiring to prosecute; and it is not enough that the attorney general is made defendant on his refusal to become party plaintiff, it not appearing that any written complaint was ever made to him as required by that section.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

W. J. Ward and C. O. Tichenor, for appellants. Karnes, Holmes & Kranthoff, Scammon & Stubenranch, Dobson, Douglas & Trimble, and Bingham, Adams & Taylor, for respondents.

BRACE, J.

This is an appeal from the judgment of the circuit court of Jackson county, sustaining the demurrer of defendant Bingham to plaintiffs' second amended petition, and dismissing the same. The defendants are Martha A. Bingham, the Widows' and Orphans' Home Society of Missouri, and B. G. Boone, attorney general. The second amended petition states that the attorney general is made a party defendant, because he has refused to become a party plaintiff. Its material allegations are as follows: "That on the 21st day of March, 1867, the said Widows' and Orphans' Home Society of Missouri was duly incorporated, under the laws of said state, as a benevolent and charitable association, the objects and purposes of which were, to `provide a home for the orphans and widows of Confederate soldiers from Missouri, who perished in the late war, and to provide the means of feeding, clothing, and imparting moral, religious, and intellectual instructions to the same, with suitable and proper training in all the domestic and mechanical arts, as well as to provide for their thorough literary training; and by all practical means to insure their comfort and well being;' that said association, at the time of its incorporation, was composed of thirty members, the following named plaintiffs being a part of the said thirty, — that is, Laura Holmes, William Holmes, John B. Wornall, Rebecca Maupin, Sarah T. Ruckle, and Julia Lester; and that plaintiffs, Sarah Tyree, Emily A. Carroll, Julia E. Simpson, and T. B. Lester, afterwards became members of said association, under its laws and regulations regarding membership; that said named plaintiffs are still members of said society; that the articles of association of said society provided that a board of managers should be elected to conduct its business, consisting of thirty ladies chosen from the members, nine of whom should reside in Kansas City, and the majority of said nine residents of Kansas City should constitute a quorum to transact business. Said articles of association further provided that each subscriber thereto, by the payment of one dollar monthly to the funds of the society, should be a member, either male or female; but no male member should be eligible to any place or office in the management of the same, except as trustee, or as member of the advisory committee, and male members should not be allowed to vote. Said plaintiffs further state that the said society and the members thereof, immediately after its incorporation, in order to execute the purposes of its organization, received and collected from its members the monthly payments provided for in said articles of association, as aforesaid, and through its corresponding secretary, and its officers and agents, whom it sent throughout the state of Missouri, solicited and received large contributions in clothing, money, lumber, fuel, provisions, drugs, and medicines, from the churches, Sunday-schools, and various charitable and benevolent persons, not only in said state, but in the different parts of the United States; that said society also collected and received a large amount of money by establishing a dining-hall at the annual fairs at Kansas City, Mo., where meals and victuals were furnished by the society, for pay, to the visitors at such fairs, the provisions and supplies used on such occasions having been donated to said society by the citizens of Kansas City and vicinity; that with a part of the money thus collected by said society it purchased the following described real estate situate in Jackson county, in the state of Missouri, to-wit: The north-west quarter of the south-east quarter of section seventeen, (17,) in the township forty-nine, (49,) range thirty-three, (33,) and erected thereon buildings and other improvements for the accommodation and comfort of the widows and orphans aforesaid. Said society used also a part of the funds so collected, as well as a part of the clothing and other donations to it, in supporting and caring for those who were received and cared for by said society at different times, from the time of the incorporation of said society until about March 12, 1874, when the state of Missouri expended large sums of money in erecting buildings upon said property, to-wit, the sum of twenty-six thousand dollars, and fourteen thousand dollars more was expended by the state in furnishing said buildings and other personal property to be used in and about said property." The petition then alleges, in substance, that the defendant Mrs. Bingham, from the organization of said society, was one of its principal officers; that on the 11th day of November, 1877, through her influence over the members of said society, she induced it to execute a deed of trust in her favor for $1,500 upon said real estate, and afterwards, on the 4th day of June, 1878, induced said society to execute a second deed of trust in her favor for $1,530; that said sums and interest thereon becoming due and remaining unpaid she caused the same to be sold by the trustee, on or about the 26th of May, 1881; that at such sale said property brought the...