Klostermann v. Loos

Sherwood, Judge, delivered the opinion of the court. The decisive question in this case is, whether the defendants, who are the trustees of a certain church organization, are individually liable on a contract in this form : “Jackson, Mo., August, 1868. “'On or before the 1st day of January, 1873, we, the undersigned, (trustees of the Evangelical German Church at Jackson, Missouri, for ourselves as such trustees, and our sueces [293] sors in office) promise and bind ourselves, (for said congrega-: tion and such successors'in office) to pay to Jacob Tobler or . order, the sum of $786.96, for value received in said Tobler advancing that amount in the building of said church, as late treasurer; said sum to bear interest at the rate of six per cent, per annum, from and after the 1st day of January, 1869, (and said sum shall be and remain a lien on said church building until fully discharged, by payment of principal and interest). In witness whereof, we have hereunto signed our names the date above written. Trustees'.” Chas. Harenburg, ' Jacob Friedrich, Adam Hoffman, Hy. Loos, As the plaintiff seeks to charge them, not in their official but in their individual capacity, asserting that his action is brought on only such portion of the instrument sued on as is not inclosed in brackets. One of the defenses setup in the answer of the defendants,was, that they liad signed the instrument in qnestion, as -trustees of the above mentioned church, and not otherwise, and the truth of this allegation finds abundant confirmation in the faee of the instrument itself, the fundamental and controlling idea of that evidently being the entire preclusion of all personal liability on the part of those who signed it. The intention of the defendants to bind themselves and their successors in office, “ as such trustees,” runs throughout the entire instrument, unless the words employed to convey that idea, have suddenly lost their usual signification. For the promise is made and the obligation entered into, in an official and not an individual capacity: “For said congregation and such successors in office,” and not in any other way. And in one and the same sentence, “ the Evangelical German Church at Jackson, Mo.,” is disclosed as the principal, and the defendants pointed out as the mere agents of that organization. And without the insertion of words expressive of absolute negations of all personal liability, it is difficult to perceive how the fact of agency could be more efficiently expressed. The [294] adjudications, however, of the various courts, as to the formalities to be. observed, in order to disclose and cast liability on the principal, while at the same time accomplishing the ■ exoneration of- the agent, are not in full accord. Some courts holding the agent, in designating his principal, to the use of an extreme precision of language, scarcely compatible with the exigencies incident to the prompt execution of business, while others adopt the more rational as well the more generally prevalent doctrine and liberal policy of allowing the intent of the parties to govern, and that intent to be gathered from the whole instrument, regardless of the latter being inartificially drawn or the former informally expressed. And this is the line of adjudication which has received the approval of this court in repeated instances. (Shuetze vs. Bailey, 40 Mo., 69; Musser vs. Johnson, 42 Mo., 74; McClelland vs. Reynolds, 49 Mo., 312.) And if the instrument is so uncertain in its terms as to throw the matter in doubt, whether the principal or agent is to be held bound, such uncertainty may be obviated by the introduction of parol testimony. (Musser vs. Johnson, supra; Shuetze vs. Bailey, supra, Smith vs. Alexander, 31 Mo., 193; Washington M. & F. Ins. Co. vs. St. Mary’s Seminary, 52 Mo., 480; Id., 556.) And this explanation of a patent ambiguity by no. means contravenes the rule as to varying or controlling a written contract. (See above authorities.) The evidence offered, then, by defendants for this purpose, was not inadmissible. Nor was there anything in the objection taken, that as Tobler, one of the original parties to the contract, was dead, the members of the congregation could not testify by reason of that fact. The witnesses introduced were not parties to the suit, and therefore did not in this regard fall within the statutory inhibition. (Looker vs. Davis, 47 Mo., 140.) The judgment is affirmed; the other judges concur.