Abbott v. Cobb

The opinion of the court was delivered by Williams, Ch. J. It is always necessary for a party, asking to recover of a defendant, to establish all the facts necessary to entitle him to a judgment. In the present case the plaintiff has made no proof against the defendant, and, if he should prevail, the defendant is made a debtor without his consent, and against his will. The defendant was an agent of a voluntary association, of which the defendant and plaintiff were both members. The nature of his agency and the extent of his powers were known to the plaintiff. It is not made to appear that he exceeded his authority. It does not appear that he ever made himself personally liable to the plaintiff, for the claim he brings against him, or that he has any funds of the association for the purpose of paying the plaintiff; but the negative of all this is expressly found by the auditor. There can be no pretence, therefore, for charging the defendant with this claim of the plaintiff. Under a much stronger claim, in the case of Cheney v. Clark, 3 Vt. 431, and under a more favorable state of facts for the plaintiff, the court held the defendants not liable. That case was very similar to the one under consideration, in some particulars. It is not perceived that there was any valid objection to the admission of the papers noticed in the report. If they were wholly immaterial, they could have occasioned no injury to either party. They might have been of some importance, in showing more clearly the relative situation of the parties, and that the defendant, in all he did, acted only as one of the building committee. We see no reason for rejecting them. The secretary of the society, who was a member of the association, had no interest in this suit, in favor of the defendant, which [598] should have excluded him from being a witness for the defendant. If the individual members of the association are personally liable, it is indifferent to them, whether they pay this claim to the plaintiff, or defendant. The judgment of the eounty court is affirmed.