Fox v. Naramore

Carpenter, J. We do not understand that the plaintiff claims to hold Naramore and Tomlinson personally liable; but on the contrary he treats the claim throughout as one against the company only. We shall assume therefore that the defendants are right in their position upon this point. Two other questions are raised; 1st. Is the company a voluntary association within the meaning of the statute ? If so, 2d, Is the company liable .upon the facts detailed in the motion ? ' 1. It does not appear that the first question was made and determined in the court below. We should not therefore upon that ground order a new trial. Indeed we have no occasion to decide that question, except that it would be idle to grant a new trial upon the other point, if it was perfectly clear that the plaintiff must ultimately fail upon this. That consideration, together with the fact that the question has been discussed in the argument, renders it proper that we should dispose of it. The statute, Gen. Statutes, tit. 1, sec. 65, is as follows: “ Any number of persons associated together as a voluntary association, not having corporate powers, but having some distinguishing name, may be sued &c.” It seems to us that the defendants are directly within this statute. They have not corporate powers ; they have a distinguishing name; and they are associated together, not involuntarily and by coercion of military law, but by voluntary enlistment. 2. Are the defendants liable ? There are two branches to this inquiry, each one of which is independent of the other. The first is, with whom did the plaintiff contract ? To whom did he give credit ?' The company occupied his premises from October till January, for which no rent has been paid. If the defendants expressly or impliedly authorized the contract to be made in their behalf, and the plaintiff so understanding it gave them credit, there can be no doubt about their liability. So too if the contract was made in their behalf without [383] authority, and subsequently ratified by them. But this, it will be perceived, is a question of fact rather than of law. A direct finding of the facts in this part of the case one way or the other would have settled this branch of the inquixy. Facts enough are stated perhaps from which the proper inference may be drawn, but it is not the province of this court to determine pux’e questions of fact, axxd we have no occasion to do so in the present instance. We choose therefore to leave this an open question. The secoxxd inquixy under this head is:—Are the defendants liable for money had and received ? So far as this part of the case is concexuxed, their liability does not depend upon a lease to them, but rests oxx differexxt grounds. It is expressly found that the commanding officer of the company received from the state the sum of $37.50, for the express purpose of paying the rent or a part of the rent in question. That money was subsequently used to pay that pox’tion of the rent for the new armory which the defexxdaxxts had agreed to pay. The fact therefore is indisputably established that the defendants have received the benefit of money which belonged to the plaintiff. They received money, or its equivalent, and are clearly liable in this form of action. The plaintiff therefore is manifestly entitled to recover something, and a new tx'ial must be advised. Whether the defendants are liable for a greater sum than $150 per year, or for a longer time than they actually occupied the premises, are questions which may hereafter arise; but as the former depends in some measure upon an open question of fact, and as the latter has not been discussed before us, we do not wish to be understood as expressing any opinion upon either of them. In this opinion the other judges concurred.