Harriman v. First Bryan Baptist Church

Bleckley, Justice. 1. Perhaps the most important question is as to the-power of the corporation to make the contract. “ A corporation is an artificial person created by law for specific-purposes, the limit of whose existence, powers and liabili- - ties is fixed by the act of incorporation, usually called its-charter.” Code, §1670. “ All corporations have the right to sue and be sued, to have and use a common seal, to make-by-laws, binding on their own members, not inconsistent with the laws of the state and of the United States, to-receive donations by gift or will, to purchase and hold such property, real and personal, as is necessary to the purpose of their organization, and to do all such acts as are necessary for the legitimate execution of this purpose ” Ib., §1679. “The power to create corporations in this state rests in the general assembly, and the courts, by whom all charters-must be granted.” Ib., §1674. “ A private corporation for any purpose whatever, except banking or insurance, may be created in this state by complying with the following provisions: The persons desiring the charter shall file in the office of the clerk of the superior court of the county in which they desire to transact business a petition or declaration, specifying the objects of their association-, and the particular business they propose to carry on, together with the-corporate name,” etc. “ Corporations thus created may exercise all the powers necessary to the purpose of their organ'ization, but shall make no contract or purchase, or hold any property of any kind, except such as is necessary in legitimately carrying into effect such purpose, or for securing debts due to the company.” Ib., §1675, ¶¶ 1, 5» [195] With these statutory provisions, together with others not necessary to be cited, in force, the First Bryan Baptist Church was incorporated by the superior court of Chatham county, on the 12th of February, 1867, on a petition or declaration which specified as the objects of the association, “ the more efficient worship of God, the preservation and perpetuation of said church, and the better control and regulation of the affairs and property thereof.” The erection of a church-edifice appropriate to the congregation is certainly within this enumeration, as well as within the general scope of the powers which 'should appertain to a religious society, whether incorporated or unincorporated. And the same may be said of raising money to pay for the erection. This last was the purpose which moved the First Bryan Baptist Church to undertake to conduct an excursion from Savannah to Beaufort, and to charter a steamer for the occasion ; there was a debt outstanding, contracted 'for the erection of a new brick church, and the corporation wished! •to raise money with which to discharge it. The purpose was a worthy and laudable one, and, as we have said, was within the charter; but the power to raise money for as proper object does not carry with it unlimited discretion as to the means of raising it. Every corporation must act according to its nature; a trading corporation must trade-, a manufacturing corporation must manufacture, a banking-corporation must bank, a transportation corporation must carry, and a religious corporation must preach, teach, minister to spiritual edification, and promote works of mercy and benevolence. A church incorporated as such, cannot engage, even for a day, in merchandizing, or in spinning or weaving, or in- banking or broking, or in transporting freight or passengers. It must derive its income, not from the conduct of any worldly business, but from such property as it may happen to owm, and from voluntary contributions. However urgent its needs for money, it cannot rent a farm to make a crop of corn or cotton, nor a store to buy and sell goods, nor a livery stable to let out horses and carriages, [196] nor can it hire a vessel to transport the public upon rivers or the ocean. To charter a steamer, and sell tickets to the public for an excursion, is to enter into the responsibilities and hazards of a busines, for gain and profit, not mentioned or hinted at in “the more efficient worship of God, the preservation and perpetuation of said church, and the better control and regulation of the property thereof.” The adventure, it seems, required a considerable outlay of church revenue; two hundred and sixty dollars for the vessel, and eighteen dollars and fifty cents for the necessary printing, advertising, ice, and music. This capital was understood to be staked on the success of the “committee” in selling tickets; but perhaps it was not thought of that each ticket sold would, if good for anything, amount to á contract on the part of the church to have the buyer transported to Beaufort and back, and that a breach of the contract would subject the church to an action on each and every ticket. What unseemly commotion actually arose on account of the failure of the expedition may be gathered from the evidence ; a committeeman on board was threatened with a most profane form of immersion, two or three fights occurred, a man was knocked down with a stool, and one woman cut another with a razor. That church members, in their personal individual capacity, have the right, if they think fit, to get up an excursion, as matter of business, for the improvement of the church finances, to charter carriages, ships, or railroad trains for the purpose, and to' sell tickets to the public, there is no doubt; but it seems to us that an artificial entity which the law creates under the name of a corporation can do nothing of the kind without the authority to do it is specially granted. We are looking at transactions which involve business dealings with the public, and not merely at an excursion undertaken by the congregation for devotional exercises, celebrations, or recreation. It may be that the corporate resources might be drawn upon for an excusión of this character, and the corporate functions of the church be enlisted in heading and [197] conducting it. Possibly, also, it would be competent for a church, as a corporation, to hire a vessel to convey from place to place a company sent out to solicit contributions for the supply of its wants, or to swell its exchequer. In this country, all support of religion being voluntary, there can be no question that solicitation is within the scope of the powers which every religious corporation enjoys. If a church in Savannah wanted to employ a vessel to carry a party over to Beaufort to collect funds by contribution, perhaps it might so do. The present case does not require us to settle this question. What was attempted was to conduct a day’s carrying business with the public, and to employ a vessel for this purpose. The church was incorporated for no such end, and as means to the ends for which the corporation was created, we think the enterprise was neither necessary nor appropriate. The contract was therefore ultra vires. It follows that there can be no recovery in this action for the expenses incurred in preparing for the excursion, nor for the profits lost on account of the failure of the voyage. The recovery must ^e limited to the amount paid as hire for the vessel, with interest upon it. If the case should be otherwise made out, the declaration is sufficient to uphold a recovery to this extent. It sets forth all the material facts, and though it is framed upon a wrong legal theory, that of the validity of the alleged contract, it may be treated as good in respect to an implied contract to refund the money. The statutory requisites of a declaration are only that it shall fully, plainly and distinctly set forth the plaintiff’s charge or demand. Code, §3332. It can easily be gathered from the declaration that the plaintiff seeks to recover back the money paid for hire, and more besides; and while the declaration is not good for more, it is good for that much. I am aware that this is a very liberal view in favor of the pleading, and it can be justified only on the ground that with us in Georgia pleading has been cut down to a simple narrative of facts— nothing beyond is essential. To suffer a recovery on the ground of the nullity of the alleged contract rather than on [198] the ground of the breach of it, is to treat the action as one for money had and received to the plaintiff’s use, and this is certainly going very far, but we think the step may be taken. 2. There was no error in admitting parol evidence that the price of the vessel for hire was fixed with reference to a carrying capacity of twelve hundred passengers, though there was a written agreement. The matter under investigation was, what caused the failure of the voyage, and there was evidence that the failure was due in part to overloading the vessel. This ovei’loading was the act of the plaintiff, and the defendants had no right to take advantage of it as an excuse if the plaintiff was not in fault. If the vessel was hired as one that could carry twelve hundred, there was no fault in burdening it with seven hundred or seven hundred and fifty. The written agreement w'as altogether silent as to capacity ; and it is provided in section 3803 of the Code that, “if the writing does not purport to contain all the stipulations of the contract, parol evidence is admissible to prove other portions thereof not inconsistent with the writing.” 3. The agent with whom the agreement was made, and who signed the writing as “ manager,” did not disclose his principal or principals. While it was competent to prove by parol who these were, it was obviously not competent to do it by reputation at the port, or by what the witness heard “under the bluff,” or by entries which he read in the custom-house. If the entries were evidence at all, they, or a copy of them, would be better and higher evidence than a recital of them by the witness from memory. There can be no doubt that the ownership of a vessel cannot be proved by reputation or mere hearsay. 4. The attachment was sued out against I. N. Harriman and I. W. Fellows, and they replevied the property and were declared against as joint debtors. We think the evidence must establish a joint liability, or there can be no recovery. Judgment reversed.