Hayward v. Pilgrim Society

Morton J. delivered the opinion of the Court. This action is founded upon a promissory note purporting to be given-by the treasurer of the Pilgrim Society for that corporation and by the authority of a vote passed on the 24th of January, 1826. As no such vote was ever passed, it is manifest that the note cannot, upon that ground, be deemed the contract of the society. The recital in the note, of the vote under which the treasurer acted', will not preclude competent evidence that he had other lawful authority. It is mere matter of de scription, and not of the essence of the contract. And the effect of introducing other proof will not be to control or vary the legal import of the written agreement of the parties. It will therefore be necessary to examine into the considera tion of the note and the origin of the debt for which it was given. It appears from the report of the trial, that the Pilgrim Society was incorporated for the purpose of erecting “ a menu ment to perpetuate the memory of the virtues, the enterprise and unparalleled sufferings of their ancestors,” and “ a suitable building for the accommodation of the meetings ” of the society. There can therefore be no doubt of the authority of the corporation to construct such monument and building ; to take all necessary means for these purposes ; to employ suitable agents to perform the necessary services, and to incur debts in the accomplishment of their objects. The corporation were also authorized to make “ by-laws for the regulation of the society,” and to choose such “ officers as may be thought expedient.” The by-laws or constitution of the society provide for the election of a treasurer and board of trustees ; and prescribe their respective duties. The trustees are required “ to manage the finances and property of the society” and “to settle and exhibit the state of the treasury annually.” [275] In September, 1821, the trustees were authorized and required to u proceed immediately in appropriating the funds of the society in erecting a suitable edifice for the future celebrations.” The trustees were also authorized to appoint an agent to collect the subscriptions already made, and to solicit further subscriptions for the purpose of defraying the expense of such building, and the surplus to be applied towards a monument afterwards to be erected. It is very obvious, that the votes of this meeting did not authorize the trustees to incur any debt to be charged upon the society. Their power extended only to the application of the funds already raised and to be raised by subscription. Kupfer v. South Parish in Augusta, 12 Mass. R. 185. The trustees proceeded in the erection of an edifice, making personal contracts for the purpose, and when they had exhausted all the funds of the society, they found a deficiency of $ 1060, for which they were personally responsible. As they had gratuitously, faithfully and acceptably performed these services, there could be no reason why they should sustain this pecuniary loss. And as the corporation had the benefit of the whole expenditure, upon a building which had become their property, justice required that they should relieve their officers from this burden. They clearly had power to assume the debt. The trustees, though personally liable, had considered and treated this as the debt of the society. And in their annual “ exhibit ” of the state of the treasury, made on May 30th, 1825, reported as due from the society to “ Jacob and A. S. Taylor, payable December 22, 1825, on the contract $ 1000, and one year’s interest, $60, — $1060.” At the annual meeting of the Pilgrim Society, holden on the same day, this report was “ accepted and ordered to be recorded.” This amounted to a ratification of the acts of the trustees and an assumption of this balance due to the Taylors. This debt henceforth became the proper debt of the corporation. And although ¿his adoption did not relieve the trustees from their personal liability, yet it created an obligation on the part of the society to indemnify them ; and should they be compelled to pay, to reimburse them. The Episcopal Charitable Society v. The Episcopal Church in Dedham, 1 Pick. 372. [276] The trustees, in virtue of their authority to “manage the finances and property of the society,” by necessary implication had power to bind the society by notes and such other obligations as are ordinarily resorted to in managing the finances of such institutions. The proper mode of doing this was through the agency of their fiscal officer, the treasurer. When the plaintiff’s intestate paid a portion of the debt due to the Taylors, by the direction of the trustees, he immediately became the creditor of the society and had a legal claim against them. There can be no doubt that the trustees might lawfully change the liability of the society by creating one debt to pay another, whenever in their opinion it became necessary or expedient. The note given by the treasurer and indorsed by Sampson, Robbins and Bartlett, by the request of the trustees, in discharge of a debt due the Taylors, immediately became the note of the society. So, had the treasurer at the same time made a note to Beza Hayward, in pursuance of the vote of the trustees to that effect, it cannot be doubted that it would have been valid against the society. The neglect to exercise this power for several years, though it may be evidence indicating a payment or discharge of the demand, we think cannot invalidate a power which in its creation was not limited to any definite period, or to be exercised by the officer of any particular year, but was in its nature prospective. It is true, five years had elapsed, but the debt remained and the society had suffered nothing by the delay. Had the debt been barred by the statute of limitations, it might have presented a different question. Perhaps the lapse of time had rendered the giving the note indispensable to save the defendants from a suit. The creditor might be willing to give delay, but not to suffer the statute to run against his claim. But it is contended on the part of the defendants, that mere is no legal proof that the trustees ever authorized the treasurer to give the note. The only evidence offered was the records or minutes of the proceedings of the trustees. It may not be strictly true that they were a corporation or body authorized to keep records or to appoint a certifying officer; and were the question, whether a copy verified only by the certificate of their secretary was competent, it would be difficult to support it. [277] But the question is, whether the original memoranda made at the time by one of their number appointed for the purpose, is admissible. They were a public body, established by by-laws legally authorized, and thus indirectly recognised by law. They were empowered to act by vote, and a minority of the whole number, constituting a quorum, might act for and bind the whole. It was their duty to keep written memorials of their acts and not to leave them to the uncertain and varying recollections of different individuals. Their acts are to bind others ; they necessarily consist of votes, which should be in writing. It may become important to prove them in court. How shall this be done ? by reference to the written evidence, or by the testimony of witnesses ? It is very obvious which would be the safest mode. Had the votes or acts of the trustees been written and signed by each member, it can hardly be doubted that such document would be competent evidence. They authorized one of their number to act for them, and his acts in pursuance of his authority, are as valid as if done by all of them. We are therefore of opinion, that the original minutes of the proceedings of the trustees, whether they may be denominated records or not, are competent evidence. The fact that both of the officers of the board at the time the votes were passed, are dead, may add some strength to this view of the subject. The proceedings of the trustees being established by competent proof, the general presumption in favor of the regularity of the acts of public officers, applies to them. And although it does not appear who or how many of the trustees were present, it cannot, in the absence of proof, be presumed that less than a quorum acted. Dtjendants defaulted.