Riffe v. Proctor

BROADDUS, J. To facilitate a correct understanding of the questions hereinafter considered, a reference at the threshold to the pleadings will, we think, be found helpful.' The allegations of the petition may be summarized in this way, that is to say: 1. That defendants were members of a religious — 605 — society known as the First Baptist Church of Monroe City. ^ 2. That on December 9, 1897, at a business meeting of the members of said church called for the purpose of deciding upon the question of the employment of a pastor for said church, at which meeting the members were present and participated, a resolution was duly passed by a unanimous vote to employ plaintiff on behalf of themselves and of said church, to serve said church as its pastor for an indefinite term and to begin January 1, 1898, and to be terminated by either party on giving three months notice to the other of a desire to terminate such employment. 3. That defendants on behalf of themselves and said church, at said meeting, did employ plaintiff and agree to pay him $800 per annum for his services so to be rendered, to be paid in monthly installments of $66.66 2-3 after January 1, 1898. 4. That plaintiff was at the time of his employment and ever since has been a duly ordained minister of the gospel of the Baptist denomination, the same as that of said church. 5. That plaintiff at said meeting accepted said employment and in pursuance thereof on January 3, 3898, entered upon the discharge of his duties as such pastor and from thereforward until January 1, 1900, faithfully served said church and discharged all the duties of his pastorate according to said contract of employment. 6. That he (plaintiff) had been paid in full for his said services to July 1, 1899, and that the six months’ salary due him from the last named date until January 1, 1900, amounting to $400, less $8.54, remained unpaid, etc. The answer of the defendants expressly and in effect impliedly admitted (1) that the said First Baptist Church was an unincorporated religious society; (2) that the plaintiff was an ordained minister of the — 606 — gospel of the Baptist denomination; (3) that he (plaintiff) had been employed at the salary, had rendered the' service and the amount of said salary claimed remained unpaid as alleged in his petition. As suppletory to these admissions, the answer further pleaded that the plaintiff was called as pastor for said church under church rules and regulations of which he had full knowledge and to which he consented, that is to say, an ap - portionment or assessment was made annually upon the membership of said church, by a board of deacons, duly authorized by the rules and regulations of said church and that such apportionment and assessment was so made during each year while plaintiff served said church and was collected and paid into the church treasury and by the treasurer paid out on the order drawn by the church clerk to the parties entitled thereto, under the rules and regulations of the church providing therefor; that plaintiff was a member of said church at the time the call was made and accepted by him and that he well knew the ways and means provided for the payment of his salary, as pastor, as provided by said rules and regulations of said church, and accepted the call of pastor of said church in contemplation of the' means so provided and relied solely thereon for the payment of his services as pastor. The reply controverted these suppletory allegations. But the defendants contend that since the petition alleges that the “First Baptist Church” is a “religious society, ’ ’ and since the term ‘ ‘ religious society ’ ’ had in the English ecclesiastical law, and has in our law, a well-defined meaning, and as commonly used in our law it is synonymous with “parish,” “precinct” and designates an incorporated society created and maintained for the support of public worship; that therefore the defendants incurred no personal liability by reason of their alleged participation in the business meeting of the corporation at which the plaintiff was employed as pastor; and as supporting their contention, refer us to — 607 — the following Massachusetts cases: Weld v. May, 9 Cush. (Mass.) 181; Silsby v. Barlow, 16 Gray (Mass.) 330. In McRoberts v. Moudy, 19 Mo. App. 26, Judge Philips, in referring to the opinion of Chief Justice Parker in Baker v. Fales, 16 Mass. 488, remarks: “A • careful reading of that opinion and others in Massachusetts following the precedent, show that the ruling is made to depend mainly on the peculiar history and usages of the parish organization in respect of this religious denomination in the New England States, as well as certain legislation in relation thereto. While, as the name indicates, those churches are, in a measure, independent associations, yet, in that State-, from time immemorial, they have been so allied and interwoven into the parish system as to be regarded as a part of the parish. ” It is needless to say that the parish system with its ecclesiastical relations as it exists in New England, is not recognized by the” laws of this State; and it inevitably follows that the Massachusetts cases relied on are inapplicable here. In Baptist polity, as it exists in this State, there is no distinction between a £ ‘ church ’ ’ and a ££ religious society.” These terms as commonly used in our law are interchangeable. There is no term used in the petition which implies that the church society therein named was incorporated. We discover nráhing in the language of the petition to justify the conclusion that the contract of employment therein alleged was entered into with a corporation rather than with a voluntary unincorporated religious society. As the said Baptist church was but an unincorporated religious society, having none of the elements or qualities of a legal entity, it was incapable of suing or being sued, pleading or being interpleaded, contracting or being contracted with. Blakely v. Bennecke, 59 Mo. 193. The church could not be sued for the reasons already stated. In such case, are the members who par — 608 — ticipated in the business meeting employing him, personally liable to plaintiff, and if so on what principle1? In Ferris v. Thaw, 5 Mo. App. 1. c. 286, it was said that certain societies, not constituted for any purpose or profit, are exposed to liabilities similar in many respects to those of a partnership. All parties who take an active part in working out a project, who attend meetings at which resolutions are made, or orders given for the supply of goods in furtherance of a joint undertaking, are, in general, jointly responsible. The act of the secretary of a voluntary association will not bind the board, but it will bind any of the members who were present at a meeting and concurred in giving the authority to the secretary. - When members of a voluntary association authorize its officers to engage in a particular transaction in the name of the society, as they do not bind the society as a body, or give to persons interested a tangible third party against whom they can proceed, they are themselves the only persons that can be sued and are in fact principals in the transaction. And to same effect in Richmond v. Judy, 6 Mo. App. 465. It is quite well settled that although a party may be a mere agent and known to be such, yet if he contracts in his own name, or in his name as agent when his principal is incapable of contracting or is irresponsible, the law presumes he intends to bind himself. The justice of this rule rests on the principle that otherwise the party performing the service would be remediless. If the agent in such case would stand exonerated he must disclose a responsible principal. Lapsley v. McKinstry, 38 Mo. 245; Heath v. Goslin, 80 Mo. l. c. 317. The application of the doctrine that the members of voluntary societies may become individually responsible to outside persons to the full extent of the obligation incurred by the society is variously illustrated by a great variety of analogous cases. Blakely v. Bennecke, ante; Furniture Co. v. Crawford, 127 Mo. l. c. 364; Smith v. War — 609 — den, 86 Mo. 399; Martin v. Fewell, 79 Mo. 411; Anderson v. Stapel, 80 Mo. App. l. c. 123-4; Hotel Co. v. Furniture Co., 73 Mo. App. 135; Furnace Co. v. Bodwell, 73 Mo. App. 393; Fay v. Richmond, 18 Mo. App. 355; Grlenn v. Bergmann, 20 Mo. App. 343; Ziegler v. Fallon, 28 Mo. App. l. c. 298. In Lapsley v. McKinstry, ante, it was said that the person who assumes to contract as an agent, must see to it that his principal is legally hound by his act; for if he does not give a right of action against his principal the law holds him personally responsible. And although the agent, at the time ho makes the contract, discloses the fact that he is acting' for a named principal, this does not necessarily exclude the idea that he intends to bind himself personally. Hovey v. Pitcher, 13 Mo. 191; Einstein v. Holt, 52 Mo. 340. Bat admitting the full" force of the doctrine established by the foregoing authorities, it- is denied by defendants that it has any application to the case at bar' for the reason that it was not the understanding of the parties that the defendants, either collectively or severally, were binding themselves to pay plaintiff’s salary; and that when he accepted the position of pastor he did so with the full understanding that a fund would be raised by the voluntary contribution of the members to which alone he could look for his compensation. And we believe that defendants’ contention is the only legitimate conclusion to be derived from the facts of the case. The record clearly shows that the plaintiff was not employed as pastor for the church at Monroe City with the intention of creating a personal liability upon the members. On the contrary, it seems to us that it was definitely understood that no such liability was to be incurred. It was shown that the plaintiff, prior to the time he was called to preach for the church, was fully informed of the manner in which his salary would be raised and paid. It was as follows: It was the duty — 610 — of the board of deacons for the church, together with its clerk, to meet at a stated time every year, at which time they were required to estimate the total amount which might become necessary to pay all expenses of the church for the following year, upon which amount they should add ten per centum. After having made such estimate, the amount thus ascertained would be apportioned among the resident members of the church, according to the ability of each member to pay his respective apportionment. And it was further provided that thereafter the deacons should hold another meeting to hear complaints from objecting members, if any, made against them for unfair apportionments and to adjust them. It will thus be seen that the funds provided for church expenses including that for the salary of its pastors, were to be raised in a particular manner — that of voluntary contribution: for no one will contend that an apportionment so made had any binding legal force upon a member. And it was further shown that in the event thes'e apportionments were not all collected, it was the common practice of the most wealthy and liberal members to supply the deficiency from their own means. With a full knowledge of,the rule and practicó of the church in paying the salary of its pastors, the plaintiff: accepted the call made by the church meeting at a salary of $800 a year, to be paid monthly, at which time nothing was said or done to indicate that he would be paid in any other way than, as he had been previously informed, by apportionment upon the individual members. It is true, the plaintiff testified that he did not accept the employment with the intention of relying on the individual members for his salary as per their individual apportioned share, but he must have known that it was not the intention of the member to bind himself jointly as well as severally, and with such knowledge plaintiff was in duty bound to make known on what terms he accepted the employment. And had he — 611 — then insisted upon what he urges here, that he considered the employment joint as well as several, I am satisfied he would never have been employed as pastor. Defendants offered to prove on the trial that it was a rule among the Baptist churches to pay the salaries of the preachers by voluntary contributions. This offer was objected to by plaintiff, and the evidence excluded. It is argued that such evidence was incompetent as each church of the Baptist denomination was a distinct organization with no head, and no official connection, one with the other, under a general organization. Such is the historical fact, but by reason thereof it does not necessarily follow that by forcé of custom these separate entities do not in the main agree in their policies, and particularly in their manner of raising funds for church expenses. In fact, the evidence offered was t) show that they did. It is not only a matter of the common religious history of this State that the Baptist-church, but that other denominations, also, have only one source to which they can look for money to pay for their preachers, and that is, as has been said, by the ■voluntary contribution of members. The object of the proffered testimony was to show that plaintiff had such knowledge. But perhaps the evidence was immaterial as the law would, under the circumstances, impute to the plaintiff that knowledge which was common to all the ministers of his faith. In this country the Church and State are separated by the Constitution, and no ■citizen can be taxed to support the Church, as in other countries. The Church, or Churches, therefore were -compelled to resort to some mode by which to ráise funds for the furtherance of their pious purposes; and the result has shown that only one mode was available, viz., voluntary contribution. And I feel safe in challenging the ecclesiastical history of the State to produce a single instance in which it was ever claimed that the employment of a minister by the assembled members ■of a particular church created-a joint, or, in fact, any — 612 — liability whatever. Immemorial custom, which has the force of law, has created a forum in which undertakings of this kind are enforced, to-wit: that of the conscience of the member of the church. The preacher relies upon each member to do his part, every one according to his ability, as blessed with worldly goods. Absence from the records of our courts of suits to compel payment of the pastor’s salary is .the highest evidence that this pious obligation of the members has been well performed. That the law of usage and custom in that respect has been of such binding force upon the conscience as to find no parallel in efficacy in the laws of the land at large. Prom the very nature of things, the churches, stripped of the power of demanding tithes,, were compelled to resort to the usage now só universal, and, I might add, inevitable. It is the ecclesiastical law especially of the Baptist church, binding alike upon the shepherd and upon the flock. But even admitting the undertaking to have been a contract upon principle, it stands with that of Davis-Rankin v. Hendrix, 59 Mo. App. 448, wherein plaintiff had agreed for a consideration of $4,900 to erect a butter and cheese factory at Cowgill, Missouri, upon the completion of which numerous individuals, among whom were the defendants, agreed in writing to pay the above-amount; and they further agreed that when the amount mentioned had been subscribed they would incorporate under the laws of the State, the stock to be divided into-shares of $100 each. This contract was signed by Davis and Rankin, after which it was signed by the different individuals, but each one writing a certain amount opposite his name. The court in its construction adopted the rule found in Addison on Contracts, viz.: “In the-construction of contracts, the court will look at all the circumstances of the case, the nature of the property, the occupation and relation of the parties, the usage of the place, and of the business to which the contract relates, and ascertain, by reasonable inference, what the613 parties must have understood and mutually expected at the time of the making of the contract, and then adopt that construction which will best and most nearly carry the contract into effect as they intended and understood it.” Notwithstanding the defendants in a general way had incurred a joint liability, the court held all the circumstances went to show that it was not the intention of the defendants to incur such liability; that it must have been so understood by all the parties. As has already been said, there can be no question but what the church member at the time of plaintiff’s employment had no intention of binding himself for the whole of the preacher’s salary, and the plaintiff knowing such »to have been the case, the undertaking at most created an obligation, if any, upon such member-.to pay his apportional share only of such expense. We have not noticed several important questions raised on the appeal for the reason that as the plaintiff was not entitled to recover upon the record, it is unnecessary to discuss them. We think the cause should be reversed, ánd it is accordingly so ordered. All concur.