# Hardy v. Carter

> Court of Appeals of Texas · January 10, 1914 · 163 S.W. 1003

URL: https://www.frixlaw.com/law-library/cases/9827175

## Case

- **Full name:** HARDY Et Al. v. CARTER Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** January 10, 1914
- **Citations:** 163 S.W. 1003; 1914 Tex. App. LEXIS 734
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Hall
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9827175

## Opinion text

*1008 On Motion for Rehearing.
The appellants Hardy, McMurtry, Burson, Brown, Harris, and Darnel have filed quite a lengthy motion for rehearing, supplemented by an extended argument, in which the original opinion of the court in this case is reviewed and criticized. One ground insisted upon in the motion is that this suit was prematurely brought, because it was not shown by any of the pleadings that the railroad had been completed, or that the project had been abandoned. This is a question which seems to have been raised for the first time on appeal. No exception was urged by any one in the court below, and, upon that' ground and for that reason, we did not consider the question in the original opinion.
We are cited by appellants in their motion to Meachem on Agency, § 706, announcing the doctrine that third persons dealing with an assumed agent are bound to ascertain the nature and extent of the agent’s authority. The rule announced does not apply to the facts of this case. The uncontroverted evidence is that the directors and the officers of the railroad guarantee committee Were not assumed agents. They were duly elected and constituted officials of the association, acting within the limits of their powers as such. The contract and by-laws creating the offices which they held and from which their authority was derived were matters of public record, and had been subscribed by the appellants. It is said in the motion that we erred in the opinion in stating that the pleadings of the parties authorized the court to enter a judgment giving the defendants the right of contribution, and appellants say that the only kind of a judgment which the pleadings and prayer authorized was a joint and several judgment against all of the defendants and then a right of contribution among the defendants as to an equal pro rata part of the amount of the principal of the note and 6 per cent, per annum and interest thereon and no attorney’s fees. The plaintiffs’ action was brought upon the note alone. The appellants, except Daniel, filed answers containing several prayers, which we give, in substance, as follows:
Wherefore this defendant prays upon final hearing hereof, if plaintiff recover anything against him, he have and recover of and from said defendants Biffle, Braley, Crawford, etc., such amount as may be recovered against him by plaintiff; at least such amount of said funds as were negligently expended by said defendants, for costs of suit and for such other and further relief, both general and special, in law and in equity to which he may be entitled.
Again, wherefore this defendant prays that plaintiff take nothing by his said suit against him, and that he be permitted to go hence without day and recover his costs herein, but that in the event plaintiff recover anything against him, that he have judgment over against the other defendants herein for such sum as may be recovered of him by plaintiff, for costs of suit, and for such other and further relief, general and special, in law and in equity, to which he may be entitled.
Again, wherefore these defendants pray that upon final hearing hereof, if plaintiff recover against them herein, then that they recover over and. against all of said above-named parties according to their respective liabilities shown by said contracts, and that, should plaintiff recover any judgment against these defendants for any sum over and above their pro rata part determined according to the terms of said agreement, then that they have judgment over and against said parties named above and said other named defendants for such sum or sums as they may be required to pay in excess of their pro rata parts, and for such further relief, general and special, in law and in equity, that they may show themselves entitled to.
Again, wherefore they say that if plaintiff recover anything against them, that, by reason of the facts above stated, they ought to have and recover over and against each and all of said other defendants jointly and severally the amounts so recovered against them by plaintiff, or at least 35 per cent, of the amount of each of said defendant’s subscription to the building of the railroad guaranteed by said railroad guarantee committee of Briscoe county, Tex., and for costs of suit and for such other relief, general and special, in law and in equity, to which they may be entitled.
And finally, wherefore these defendants pray that, upon final hearing hereof, if plaintiff recovers anything against them, that they have and recover of and from said defendants Biffle, Braley, etc., such amounts as may be recovered against them by plaintiff, or at least such amount of said funds as were negligently expended by said defendants, for costs of suit and for such other and further relief, both general and special, in law iand in equity, to which they may be entitled.
We are not prepared to criticize the judgment of the court and the verdict of the jury, because the several amounts which plaintiff was permitted to recover against each of the defendants was calculated and entered therein. Some of the objections urged by appellant might have been obviated if the court had rendered a joint and several judgment against the guarantee committee with the right of contribution between them. We think, however, that the particularity apparent in the judgment and verdict does not render it void or even voidable, nor limit the rights of the defendants in the judgment inter se. The pleadings which we have outlined in brief in the original opinion, when considered in connection with the various prayers appearing from time to time and set out in substance above, certainly authorized the court to render exactly the judgment which appears in the record. We have not taken the time to figure the exact amounts *1009 clue from each member of the committee to ascertain whether or not any mistake has been made in the calculations, but, since no objection is urged upon that ground, we take it for granted that the amounts named by the court are correct.
In their argument, supplementing the motion in this case, the appellees insist that no case can be found bearing upon the right of a comaker to make a new note to a different payee for a different amount and upon different terms and bind his comaker thereon. If such a case could be found, it would have no application to the facts of the case under consideration. This is not a question of one comaker making a new note to a different party containing different stipulations and endeavoring to bind his comaker. The question here is primarily one of agency and the right of the directors and officers of a voluntary association, organized as this has been, to bind the other members. In Fredendall v. Taylor, 23 Wis. 538 , 99 Am. Dec. 203 , it is said that the members of a committee of a voluntary association are individually liable on a contract made by a subcommittee of their number under authority delegated by the whole committee with one who contracted on a credit of the committee personally and not of the association, although in making the contract the subcommittee assumed to act as officers of the association. In that case Taylor and Kreiss and Leich were members of a committee 'appointed by the State Firemen’s Association to make the necessary arrangements for holding the annual tournament, and, as such, they made a contract with Fredendall for a tank for the use of the association. Paine, J., said: “It is true, they did not act personally in contracting with the plaintiff, the committee having delegated its authority to a subcommittee composed of Spencer and Leitch; but the latter, in making the contract, were acting as agents of the committee, so that the liability of the whole committee is the same as though all had acted in making the contract. It was not claimed that the contract was not within the scope of the committee’s authority, or of that delegated to the subcommittee. On the contrary, it is conceded, that the well was necessary to the tournament, and it was used for that purpose, * * * and, where such is the case, a committee which assumes a contract for services for such an irresponsible, intangible association must become personally liable, else there is no liability whatever. One professing to act as agent, if he does not bind his principal, binds himself. Dennison v. Austin, 15 Wis. 334 . And it can make no difference that the reason why he does not bind his principal, is because the principal for whom he professed to act has no existence. It is not to be presumed .in this case that the plaintiff contracted upon the credit of the association,' and there is proof tending to show, that, although he only understood that the committee was acting for the association, yet' he relied on the personal, liability of the committee, including Taylor and Kreiss. The case is not distinguishable in principle from that of McCartee v. Chambers, 6 Wend. (N. Y.) 649, 22 Am. Dec. 556 , where the committee, acting by an agent, as in this case, are all held personally liable. Such a rule is salutary, and tends to the motion of justice, by preventing the procurement of services from too incautious and confiding laborers, by putting forward an irresponsible committee to act for an irresponsible public gathering.” In the instant case, the officers who signed the note may be considered as the subcommittee, and the rule announced is in point.
In Wehr et al. v. Germ. Evan. L. St. M. C. of Baltimore, 47 Md. 194 , it is said: “We think this a case when the general principle applies that, where a corporation, or other organization of persons, is represented by a select body of its members, unless there be something in its rules, or in the delegation of authority to the contrary, the act of the majority is to be taken as the act of the whole. It is the general understanding, as observed by Lawrence, J., in Witchnell v. Gartham, C. T. Rep. 388, that ‘When a body of persons is to do an act, a majority of that body will bind the rest.’ ”
In Augusta Musical Club v. Cotton States Mechanic’s & Agricultural Fair Ass’n, 50 Ga. 436 , where certain musicians sued for services rendered to the defendant, the court said: “It is nevertheless very clear that the plaintiffs did act as musicians for several days at the defendant’s fair, and that they were recognized as musicians by the officers in authority at the fair. Whether they were mere volunteers or went there in the employment of somebody else than the defendant or its agents is, in truth, "the principal question. Without doubt, they thought they were playing for the defendant, and, if they were not, they were imposed upon by Mr. Cohen, who represented to them, in writing, that he was chairman of a committee appointed by the defendant. In our judgment, it was within the scope of the authority of such committee to procure music, and to agree to pay for it. When Mr. Cohen says he had no such authority, we presume he means express authority, but if he was one of the appointees of the defendant to make preparations for the coming fair, the authority to employ musicians would be implied in the committee, and the act of their chairman might fairly be taken as the act of the committee itself. Mr. Cohen says he did not contract with them as chairman of the defendant’s committee; but the fact is he did so contract, for the letter which he admits was written by him, not only styled him the chairman of defendant committee, but appeals to them for a low charge, in consideration that the fair association is itself acting .liberally in giving the entertainment.”
In Winona Lumber Co. v. Church et *1010 al., 6 S. D. 498, 62 N. W. 107 , the appellant sold cfertain lumber to the Watertown Trotting Association, of which Charles G. Church was the president. Judgment was rendered that the lumber company take nothing, and on appeal the trial court was reversed and the case remanded. Kellam, J., speaking for the Supreme Court, said: “Complaint shows that these defendants were the general officers of an incorporated association, under the name of the Watertown Trotting Association. Its purpose and object is disclosed only as suggested by its name. • It is further stated that with the knowledge, approval, and sanction of these defendants, as its general managing officers, the association purchased the materials named in the com-' plaint from the plaintiff, and that.such materials were used in the construction of buildings for such association. The association itself was the nominal or theoretical principal, of which these defendants were the officers and agents, but the nominal principal had no legal existence. As said by Judge Seevers, in Lewis v. Tilton, 64 Iowa, 220 , 19 N. W. 911 , 52 Am. Rep. 436 , it was a myth. The members of the association, as a matter of convenience, transacted their business connected with this enterprise under an assumed associate name. The acts of the association, it not being a legally responsible body, were the acts of its members, who instigated and sanctioned the same. They made the purchase in the name of a fictitious principal. As a matter of law, the plaintiff, in giving credit to the associate name, gave credit to the parties who adopted and operated under such name. To hold otherwise would defeat the plain requirement of justice. It is not sought in this case to impose liability upon any except those who were actively responsible for the purchase. Possibly others besides those named as defendants may also be liable in this case, but there is nothing in the complaint so showing. It does appear that the defendants named instigated and sanctioned the purchase, and they are liable on the ground that one who, as the agent, assumes to represent a principal who has no legal existence or status is himself liable. Meach-em on Agency, § 557. The principle which seems to us controlling in this case is tersely stated in Lewis v. Tilton, supra: ‘But it is said these defendants did not contract. They certainly represented that they had a principal for whom they had authority to contract. They, for and in behalf of an alleged principal, contracted that such principal would do and perform certain things. As we have said, there is .no principal, and it seems to us the defendants should be held liable, and that it is immaterial whether they be held liable because they held themselves out as agents for a principal that had no existence or on the ground that they must, under the contract, be regarded as principals, for the simple reason that there is no other principal in existence.’ That members of an incorporated association, having no legal status, are personally liable, independent of the question of partnership, on contracts which they have assented to or assisted to make in its name is fully declared in Lewis v. Tilton, supra; Davison v. Holden [ 55 Conn. 103 ] 10 Atl. 515 [ 3 Am. St. Rep. 40 ]; Herod v. Rodman, 16 Ind. 241 ; Ash v. Guie, 97 Pa. 493 [ 39 Am. Rep. 818 ], The same doctrine was distinctly recognized, though not so definitely stated, and applied in Ray v. Powers, 134 Mass. 24 ; Sizer v. Daniels, 66 Barb. (N. Y.) 432; Fredendall v. Taylor, 23 Wis. 538 [ 99 Am. Dec. 203 ]; and again in 26 Wis. 286 .”
In Bennett v. Lathrop, 71 Conn. 613 , 42 Atl. 634 , 71 Am. St. Rep. 222 , it is said: “The members of a voluntary association are * ⅜ * liable for an indebtedness * ⅜ * for which it was organized, during the time of their membership, although they did not agree to become, nor did they hold themselves out as, partners, or as personally responsible, and although the creditors gave credit to the associate name.”
In contracting with the Texas Construction Company, the officers and directors of the guarantee committee were certainly endeavoring to carry out the very purpose which the guarantee committee had bound themselves to have performed, and it comes too late at this time, when the work has been done, the money expended by the officers elected by themselves, to insist that they are not responsible because the appellees failed to show that appellants were present and actually participated as members of the committee when the Texas Construction Company was substituted for Kennedy in the original contract. The Danforth Trotting Park Association had been organized as a volunteer association, with the ultimate purpose of organizing a corporation, and before the organization of the corporation the treasurer executed a note. In Kierstead v. Bennett, 93 Me. 328 , 45 Atl. 42 , it was held that Bennett, the treasurer of such an association, giving his note in his official capacity for money which was used in promoting the purposes of the association, thereby bound all of his associates, including himself. The court said: “Now the defendant claims that the note sued on must be held to be the note of the Danforth Trotting Park Association, and that, when the defendant promised in his official capacity, he promised for and in behalf of the association. Assume it to be so, then he promised for and on behalf of all the associates, including himself. That being so, all the members, himself included, are liable upon the promise which he made. All are copromisors. He is sued; the others are not; but the nonjoinder of a copromis- or is available only by plea in abatement, hence it follows- that, whichever view may be taken of the note, the defendant is liable.” Otto v. Journeyman Tailors’ Union, 75 Cal. 308 , 17 Pac. 217 , 7 Am. St Rep. 161; Jenne *1011 v. Matlack (Ky.) 41 S. W. 11 ; McKenney v. Bowie, 94 Me. 397 , 47 Atl. 918 ; Giles v. Ortman, 11 Kan. 59 ; Pelton v. Place, 71 Vt. 430 , 46 Atl. 63 ; Hess v. Werts, 4 Serg. & R. (Pa.) 356; Ferris v. Thaw, 72 Mo. 446 ; Dow v. Moore, 47 N. H. 419.
Motion overruled.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9827175. Public record. Not legal advice.