church building the commercial value of such property is generally very small as compared with its cost. Is it any wonder that creditors prefer to have trustees as their debtors rather than the church? A signer of such a note will therefore be bound by it personally unless he plainly says that he is a mere scribe. Though he adds the name of the church corporation which he represents to indicate the capacity in which he acts, he will be regarded as professing and intending to bind himself personally unless he indicates plainly that he does a mere ministerial act in giving authenticity to the act, promise and contract of another. Notes or bonds executed by individuals as trustees of a certain designated church corporation, while they will be binding on such corporation at the election of the payee138 need not be so enforced, but may, at the option, or pleasure, or whim of the creditor, be enforced against the individual signers of the same, in which case the designation of their office will be regarded as a mere descriptio personae.139 140 In such an action the signers of such a paper will not be allowed to contradict and vary the terms of their written agreement by proving that the corporation which they represented was intended as obligor rather than themselves." It follows that the holder of such a paper by tearing off the part of it which contains the official designation of the signers does not in the least alter it or make it unenforceable. The same principles will be applied to other contracts, whether they consist of a written settlement142 or an oral agreement.143 Unless church trustees intend to 141 138 Hypes v. Griffin, 89 Ill. 134, 137. 139 Powers v. Briggs, 79 Ill. 493; Hayes v. Brubaker, 65 Ind. 27; Dayton v. Warne, 43 N. J. Law (14) Vroom) 659; Brockway v. Allen, 17 Wend. 40; Hills v. Bannister & Butler, 8 Cow. 32; Taft v. Brewster, 9 Johns 334, 6 Am. Dec. 280. 140 Hypes v. Griffin, 89 Ill. 134. If this is true in cases where the designation of office is added to the names of the subscribers it will be more so where such is not the case. Second Baptist Church v. Furber, 109 Ind. 492; Colburn v. First Baptist Church of Monroe, 60 Mich. 198, 26 N. W. 878. 141 Burlingame V. Brewster, 79 Ill. 515. 142 Arts v. Guthrie, 75 Iowa 674, 37 N. W. 395. 143 Adams V. Hill, 16 Me. (4 Shep.) 215. bind themselves or to act as sureties for their church it will therefore be advisable in all cases to have the corporation appear in all parts of the instrument as the obligor and to appear so even in the signature while the names of the trustees or other officers should appear as mere agents.1 Unless, therefore, the action of the trustees has been duly authorized or ratified by their principal and unless the contract has been executed by them as mere scribes, they will not be able to escape personal liability. No presumptions will be indulged in. There is nothing in the nature of the business to be done, or the duties which devolve upon the officers of a church corporation, "that can require or justify the giving of negotiable instruments binding the society without being authorized by a special vote to that effect. ''145 The corporation, just like individuals under similar circumstances,146 will therefore not be legally responsible on any obligation not authorized or ratified by it. It follows that trustees who have overstepped the bounds of their authority, will, under such circumstances, no matter how carefully the instrument is worded, be liable on it. If they want to protect themselves from personal responsibility they must not only sign as mere agents, but they must also carefully act within the lines of their specific authority. 147 But even this extreme precaution will not protect the trustees if the body which they represent is unincorporated. They are in fact in all such cases, with the possible exception of a case where the personal obligation is given in connection with a mortgage on the church property148 personally liable, no matter how they word their signature. For unincorporated societies have no legal existence, cannot sue or be sued, and are in legal contemplation mere myths. In whatever light they may be regarded by their members they cannot be, in law, responsible principals. Since trustees who have signed a contract for such a society are therefore in no position to produce a responsible principal they cannot avoid personal liability, no matter whether they have signed individually, or whether they have added their official designation to their signature,' or whether they have even clearly intimated that they have signed merely in a purely ministerial character.151 149 150 But while the board must thus act as a whole and not individually, it must also act by majority vote. It cannot bind the corporation by minority action on a mortgage,152 much less can any one member of it,153 or a member of another church committee,154 or a number of members merely of the corporation155 take the place of such majority. It will, however, bind even a minority of its own members by a resolution duly adopted,156 but cannot by such resolution oust and divest such member of the joint possession of the church property.157 Wherever it is possible in order to avoid any dissatisfaction and contention, the majority should be a majority of all the members, though a majority of a mere quorum present would seem to be sufficient.158 It sometimes happens that boards of trustees are deci 148 In such a case the two instruments will be construed together. Elwell v. Tatum, 6 Tex. Civ. App. 397, 24 S. W. 71, 25 S. W. 434. 149 Phoenix Insurance Co. v. Burkett, 72 Mo. App. 1. 150 Haines v. Nance, 52 Ill. App. 406; Chick v. Trevett, 20 Me. (7 Shep.) 462, 37 Am. Dec. 68; American Insurance Co. V. Sorter, 1 Cleve. L. Rep. 133, 4 Ohio Dec. Reprint 226. 151 Lewis v. Tilton, 64 Iowa 220. 152 Moore v. St. Thomas Church, 4 Abb. N. C. 51. 153 Kupper v. South Parish of Augusta, 12 Mass. 185. 154 Beckwith v. McBride & Com- 155 Macon and Atlantic Ry. Co., v. 158 African Methodist Bethel A 99159 mated by the resignation, death or expulsion of members. It has been contended that a rule which would allow the remaining trustees to act by majority vote of such remaining members would open the door to fraudulent and collusive resignations, would discourage the performance of the duty of filling vacancies and "would tend to frustrate the purposes of the statute, and might end in devolving the authority and duties of eight vestry men upon a single one. This contention, however, has received no favor. It has therefore been held that one vacancy in a board of thirteen though the vacant membership was a membership ex-offico,160 or the refusal of a minority of a board to act,161 and even the ouster of seven out of a board of ten by quo warranto proceedings162 will not affect the right of the remaining members to act and bind the corporation by such action. In a Massachusetts case it has been held that where the board was increased from eleven to fifteen members and its quorum from eight to eleven members, but the additional members had not been elected that the quorum still consisted of eight members.163 It remains to discuss the duties of church officers in connection with the maintenance of law and order in the church. In this matter the discussion cannot be confined to church trustees but will cover all church officers and even the employees of the church from the janitor to the pastor. It is certainly of the highest importance to all churches that order and decorum be preserved at their formal business meetings. To accomplish this result some person is usually elected or appointed to serve as mod 159 Moore v. St. Thomas Church, 4 Abb. N. C. 51, 55 (N. Y.), holding a meeting of four vestrymen void though their entire number was eight and the office of three was vacant. 160 Church of St Louis v. Blanc, 47 La. (8 Rob.) 51. 161 All Saints Church v. Lovett, 1 N. Y. Super. Ct. (1 Hall) 191. 162 People ex rel Cook v. Fleming, 59 Hun. 518, 37 N. Y. St. Rep. erator. There can be no question but that the work of such an officer, however pleasant it may be ordinarily, will be extremely unpleasant in times of strain and stress. "It is certain that a moderator of a town or parish meeting is often called upon to discharge an unwelcome duty, especially in those cases where contending interests and feelings are in full operation; and where he is obliged to decide on the qualifications of voters, without time for deliberation, and even without a knowledge of many of the facts on which those rights depend; when, to a certain extent, he acts judicially, and must pronounce a decisive opinion. 164 It is not always an easy matter to decide correctly on the qualifications of voters. Men change their religious opinions and principles quite frequently and may by a declaration that they cannot any longer with a good conscience attend a certain church, practically cease to be members of it without formally dissolving their connection. They may by a failure to pay dues, by joining forbidden societies, by falling into gross sins or heresies, forfeit their right to vote without technically ceasing to be members. The moderator when such a vote is presented must therefore exercise his discretion in accepting or rejecting it. For such bona fide exercise of his judgment he cannot be held responsible in damages. "A man who is placed in a public station as an officer of the Commonwealth, or of a corporation, in which, though not strictly a judicial office, he must necessarily exercise his judgment (such as an inspector or judge of an election) is not liable to an action for an erroneous judgment, provided he act with purity and good faith." "165 But if it is important to preserve order during the mere business meetings of the church it is certainly of vastly greater importance to preserve decorum during divine services. The duty to preserve such decorum may make it necessary for church officers to lay hands on a disturber 164 Tuttle V. Cary, 7 Me. Greenl) 426, 429. (7 165 Weckerly v. Geyer, 11 S. & R. 35, 39 (Pa.) |
