Jenkinson v. Wysner

Grant, J. (after stating the facts). 1. The defendants are liable, under the rule of Clark v. O’Rourke, 111 Mich. 108 (69 N. W. 147, 66 Am. St. Rep. 389), unless the right to maintain such action is abrogated by sections 10025, 10026, 3 Comp. Laws 1897. That statute provides for the bringing of suits against unincorporated voluntary associations, and provides for service of process upon certain of its officers. Without this statute the association could not be sued, because it has no legal existence. The remedy provided is merely cumulative; it does not take away the right to sue members of the association, under the case above cited. 2. The court held that all the defenses set up in this case were litigated in the former suit, from which no appeal was taken, and that, therefore, all such questions were res adjudicata. The ruling was correct. Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013). Defendants’ plea and notice were the same in this suit as in the former suit, and defendants’ liability for the rent depended upon the questions then litigated. 3. It is urged that the defendants are not liable, because there was no evidence that Wysner and Johnson were trustees, or that Dixon, Sheldon, and Eichorn were officers and members of the society, at the time the lease was made. The declaration contains a copy of the lease, signed by Wysner and Johnson as trustees, and alleges that its execution was known to, and ratified by, the other defendants. The evidence shows that Dixon was treasurer; that Eichorn and Sheldon issued and signed orders as officers of the association, upon which plaintiff obtained the rent until the time the association vacated the building. The association was a secret one. The execution of the lease was admitted. The issuance of orders by Eichorn and Sheldon to plaintiff on the treasurer, Dixon, [91] and the payment by him, are sufficient evidence that they were officers of the association, and ratified the lease. Judgment affirmed. The other Justices concurred.