Freeport Bank v. Egan

Opinion, Mr. Justice Mitchell : The defendants were not parties to the note on which the action was brought, and prima facie, therefore, were not liable upon it. This circumstance, however, would not of itself be conclusive in their favor, if it were shown that the note was made by their authority for a debt due by them. But it put on the plaintiff the burden of showing affirmatively the liability of defendants for the debt, and the authority of McEnrue to make the note as their agent. The case rests mainly on the testimony of McEnrue, and careful examination of that fails to show any explicit evidence of authority on the part of the defendants to' control him, to direct the raising and expenditure of money, or to make him their agent for that purpose. He calls them, in a general way, the building committee; but names as the members Anderson, who is not a party to this action; Egan, who is most frequently and prominently mentioned, but who testified himself that he was not a member; and McCain. Kirk is not named by McEnrue, unless he be meant by the name Creek; and O’Neil, the other defendant, is not mentioned by him at all until near [108] the end of the cross-examination, when he says, “ Mr. O’Neil is the name instead of King (whom he had mentioned before) ; I want to rectify that.” The powers and duties of the committee, thus indefinitely individualized, are left equally vague. MeEnrue says they “supervised, or were supposed to be in consultation with me,” but did not supervise the erection of the church. When he proposed to borrow the money from King, they “ overruled or at least advised me to get it at the bank,” but left him free “ to go there, or get it where I pleased.” The committee had no title to the property, which was in the bishop; they did not handle any of the funds ; nor does it appear that in fact they raised any of them, the hundred dollars paid on the note in suit being raised by MeEnrue “ through festivals we had from time to time.” In short, notwithstanding the occasional use of ambiguous words, such as instruction, assistance, authority, etc., the fair result of McEnrue’s testimony is that the committee was not in charge of the work, or clothed with any duty or power in regard to it, but was merely a shifting, informal body for consultation and advice; while the real power and authority remained with MeEnrue, who was the principal throughout as to the debts, including the one in suit. There was not sufficient evidence, therefore, to justify the jury in finding a verdict against the defendants, and the learned judge was right in directing a nonsuit. Judgment affirmed.