Majority
p. 381*Ernst against Bartle and others.
Headnote
Individuals acting together for the benefit of a society are not to be considered as a corporation, unless their corporate capacity be expressly shown.A covenant by several persons may be taken distribntively, though there be no express words of severalty.
Where there is a precedent debt, or duty, it is not necessary for the plaintiff to state a special request or demand in the declaration.
This was an action of covenant, in which the plaintiff declared; “ for that whereas by a certain article of agreement made at the town of Claverack, in the county of Columbia, on the eighth day of October, in the year of our Lord one thousand seven hundred and ninety-one, between John Frederick Ernst of the one part, and Thomas Bucktel in his lifetime, and Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail and Jonas Roschman of the other part, which said Thomas Buchtel is now deceased, which said article of agreement, sealed with the seals of the said Thomas Buchtel, Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Thomas Lewe, Petrus Silvernail and Jonas Roschman, the said John Frederick Ernst now brings here into court, bearing date the same day and year above-mentioned, reciting amongst other things, that the subscribers to the same article of agreement, the trustees, the elders and deacons of the Evangelical Lutheran Church called St. Thomas, in Claverack district in the county of Columbia, in the state of New York, and the trustees, the elders and deacons of the Evangelical Lutheran Church at Lunenburgh in the county of Albany, and state aforesaid, well knowing their deplorable situation, without publishing the word of God and cure of souls, as well amongst the old as among their young people, had, in firm reliance on the zeal, faithfulness and diligence of the said John Frederick Ernst, (therein called and named the Rev. Mr. John Frederick Ernst,) of Kutztown, Maxetawney township, Bucks county, state of Pennsylvania, called him by virtue of their respec
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tive church offices and their duty, in the. name and with the consent of all the. respective members of the Evangelical Church,, in their aforesaid congregations, by those [*320] presents, *to preach, maintain, and spread therein,. publicly, as-well as privately, the pure-and sound evangelical doctrine, according to the, foundation laid by the holy apostles, of which Christ Jesus was the. corner - stone, and their unaltered Augustan, confession; arid likewise to administer the two holy sacraments, according to Christ’s in.stitution; and with edifying sermons, which were to be preached on every other Sunday,, in each of the aforesaid congregations, as much,as God might grant him by grace and strength to feed the sheép, and with edifying catechisatións, during the summer season, the lambs of Jesus Christ; to visit the sick if it be made known unto,, desired' of- and was possible unto him; to attend on funerals; to instruct those in the sound principles of the doctrine of their church, who for the first time should be desirous to be admitted unto the table of- the Lord, and. lawfully;to join in holy wedlock ; likewise to administer his sacred office in all cases whatsoever occurring, without regard to person or persons,, so long as his doctrine and exarriple shall prove to be according to the Word of God and the general established rules of their American Lutheran Church., the said Thomas Buchtel in his lifetime, .and the said Hénrich Bartle, Jacob Millions/ Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail and Jónas Roschman, did, in and by the same article of agreement, promise .and covenant to pay or cause to be paid to the said John Frederick Ernst, yearly, and every year, from-the day of the date of the same article of agreement, as long as he the said John Frederick Ernst shotild be teacher in the congregation aforesaid, in manner and form following, to wit: for the administration of public worship the sum of fifty pounds current money of the state, of New York,, payable in gold or silver,, to be paid unto the said John Frederick Ernst, in, quarterly or half yearly payments, according to the request of the said John Frederick' Ernst, and that they the said Thomas Buchtel, Henrich Bar-
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tie, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman,- Thomas *Lewe,Petrus [*321] Silvernail and Jonas Roschman, should yearly find and provide him the said John Frederick Ernst with ten cords of good firewood : And the said John Frederick Ernst in fact says, that from the time of making and entering into the said article of agreement to the eighth day of October, in the year of our Lord one thousand seven hundred and ninety-seven, at the town and in the cotinty aforesaid, he was and still is a teacher in the congregation at Churchtown, of St. Thomas’ church there, and hath done and performed all the duties and services to him pertaining as teacher as aforesaid : And the said John Frederick Ernst further in fact says, that the said Thomas Buchtel, Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail and Jonas Roschman, nor either of them, in the lifetime of the said Thomas Buchtel, nor have the said Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman,- Thomas Léwe, Petrus Silvernail and Jonas Roschman, or either of them, since the death of the said Thomas Buchtel,- paid to the said John Frederick Ernst the sum of twenty-five pounds of the said yearly payments, for the half of a year ending on the eighth day of April, in the year of our Lord one thousand seven hundred and ninety-three: nor have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sum of twenty-five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of April one thousand seven hundred and ninety-four ;■ nor have they, or either of them, in the lifetime of the said Thomas' Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sum of twenty-five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of April one thousand seven hundred and ninety-five; nor have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sum of
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[*322] twenty-five *pounds, of the said half-yearly payments, for the half of a year ending on the eighth day of October one thousand seven hundred and ninety-five; nor have they, or either of them, 'in the lifetime of the said Thomas Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sum of twenty-five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of April one thousand seven hundred and ninety-six • nor. have they, or either of them, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sum of twenty-five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of October one thousand seven hundred and ninety-six. Nor have they or either, of them, or the said Thomas Buchtel, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sum of twenty-five pounds of the said half-yearly payments for the half of a year ending on the eigth day of April one thousand seven hundred and ninety-seven ; nor. have they or either of them, or the said Thomas Buchtel, in the lifetime of the said Thomas Buchtel, or since his decease, paid to him the said John Frederick Ernst the further sunaof twenty-five pounds of the said half-yearly payments, for the half of a year ending on the eighth day of October one thousand seven hundred and ninety-seven. And the said John Frederick Ernst further in fact says, that the said Thomas Buchtel, Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvern ail and Jonas Roschman, nor either of them, in the lifetime of the said Thomas Buchtel, or since his decease, have not paid to the said John Frederick Ernst, from the eighth day of October in the year of our Lord one thousand seven hundred and ninety-five, to the eighth day of October one thousand seven hundred and ninety-seven.,, the said ten cords of good firewood for each of the said two years, which, according to the form of [*323] the said covenants in those behalfs made as *aforesaid they ought to have done, and so the said John Fre
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derick Ernst saith, that they the said Thomas Buchtel, Hen-rich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silver-nail and Jonas Roschman, in the lifetime of the said Thomas Buchtel, and they the said Henrich Bartle, Jacob Millions, Jacob Gamer, Peter Miller, Fite Roschman, Jacob Roschman, Thomas Lewe, Petrus Silvernail and Jonas Roschman, since the death of the said Thomas Buchtel, have not, nor hath either of them kept with the said John Frederick Ernst the said covenants so made in those behalfs as aforesaid, but the same have altogether broken, to the damage of the said John Frederick Ernst of one thousand dollars, and thereof he brings suit,” &c.
The defendants craved oyer of the articles of agreement, which were as follows:
“In the name Of our Great Shepherd Jesus Christ, amen:—We the subscribers, the trustees, elders, and deacons of the Evangelical Lutheran Church called St. Thomas, in Claverack district, in the county of Columbia in the state of New York, and the trustees, the elders and deacons of the Evangelical Lutheran Church at Lunenburgh, in. the county of Albany and state aforesaid, well knowing our deplorable situation without publishing of the word of God and cure of souls, as well among the old, as ■ particularly among our young people, have in firm reliance on the zeal, faithfulness and diligence of the Rev. Mr. John Frederick Ernst, of Kutztown, Maxetawny township, Berks county, state of Pennsylvania, called him by virtue of our respective church offices and our duty in the name and with the consent of, all the respective members of the Evangelical Church, in the aforesaid our congregations, by these presents, to be our ordinary minister, teacher, curate of souls, and overseer of these our congregations, to preach, maintain and spread therein, publicly as well as privately, the pure and sound evangelical doctrine, according to the foundation laid by the holy apostles and prophets, of which Christ Jesus is the corner stone, and *our unaltered [*324] Augustan confession; likewise to administer the
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two holy sacraments according to Christ’s institution, and with edifying sermons, which are to be preached on every other Sunday, in each of the aforesaid congregations, as much as God may grant him grace and strength to feed the. sheep, and with edifying catechisations, during the summer season, the lambs of Jesus Christ; to visit the sick if it be made known unto, desired of, and is possible unto'him; to attend on funerals, to instruct those in the sound principles of the doctrine of our church, who for the first time shall be desirous to be admitted unto the table of our Lord and lawfully to join in holy wedlock; likewise to administer his sacred office, in all cases whatsoever occurring,without regard to person or persons, so long as his doctrine and example shall prove to be according to the word of God, and the general established rules of the American Lutheran Church, into which church rules both the respective vestries and congregations think themselves bound, and with Divine assistance, will endeavor effectually to defend and assist their said minister therein, and in case of any dispute (which inay God avert) happening, only to hear and adhere to. the judgment of the most reverend ministry of New York ; he shall likewise-call a meeting of all the church officers of each of the aforesaid congregations, every three months in the year, to consult and put such regulation's in force, as may by him and them jointly be thought most beneficial to the said congregations ; he shall likewise preach in the Holland language, in the congregation of Lunenburgh, as soon as he finds himself capable : '
“ And since it is the command of our Lord and Great Shepherd, that they which preach the gospel should live of the gospel, equity likewise demands, that our congregations, according to our church rules, seek to procure temporal maintenance for their teachersTherefore, we the subscribers, the trustees, elders and deacons, promise and bind ourselves and the successors in our respective church [*32o] offices, with conjunction and consent of the Respective members of these our congregations, firmly by these presents to pay or cause to be paid unto our teacher the
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Rev. Mr. John Frederick Ernst, yearly and every year, from, the day of the date hereof, as long as he is or shall be teacher in the congregation aforesaid: Imprimis, for the administration of public worship in our said congregations, the sum of one hundred pounds, current money of the state of New York, payable in gold or silver, to be paid unto him or his order in quarterly or half yearly payments, according to the request of the said Parson Ernst, whereof each of the congregations aforesaid is to pay the equal sum of fifty pounds, together with the free and unincumbered use and benefit of the parsonage house and lot of ground belonging to the church of Lunenburgh, now in possession of Mr. Anthony De Witt, which said house and lot of ground, shall, at the desire of Mr- Ernst, be put and kept- in good tenantable order and repair by the congregation of Lunenburgh, further to find and provide him yearly with twenty cords of good firewood, whereof each of the said congregations aforesaid is to find and provide ten cords ; further, two tons of good first crop hay, together with pasturage during the summer season for one horse, together with fifty bushels of oats to keep the same in good riding order. We further agree with the said Parson Ernst, to receive from all persons who are members of the said congregations, the perquisites as are allowed by custom in each of our respective congregations, for inscribing the names of children baptized in the record book kept for that purpose : it is further agreed that said Parson Ernst shall receive from the parents of every child or other person the sum of four shillings, who shall especially be instructed previous to their admittance to the .communion. It is also agreed that Parson Ernst shall receive for every solemnization of marriage between persons belonging to our respective congregations the sum of ten shillings, provided the same be performed at church or at his dwelling house : Further, it is agreed, that said Parson Ernst .shall receive eight shillings from every person who *shall request and desire him to [*326] deliver a funeral sermon, on the mournful occasion of the death of any member of said congregation,. It is fur
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ther agreed, that the said Parson Ernst shall have four Sundays in each and every year for his own use, provided the same be not taken on a festival day, and two Sundays for attending on the yearly synod or conference held, by his clerical brethren; all the above, and each párt thereof, we do hereby promise to perform, and testify "to have agreed to, with the said Rev. Mr. John Frederick Ernst, in the háme of the above said óur.congrégátions, signed with bur hands and sealed with our seals, this eighth day of October, in the year of our Lord, one thousand eight hundred and ninety-one.”
The defendants then demurred, and assigned' the follow-' ing causes of demurrer: .
1. That the defendants are a corporation, and the agreement was made with them in their corporate capacity, as trustees of the churches mentioned in thé plaintiff’s declaration, and the suit is brought against them in their natural and private" capacities. , ■
2. That the covenant-.on which the suit is brought, is not shown to, be under the corporate seal of tire defendants as trustees. . . "
3. That the covenant is -joint on the part of both congregations, and the action is - against -the trustees ‘ of one only.
4. That no request- to pay is alleged in the declaration,
5. That.the declaration states, that the, payments were tobe made quarterly or half-yearly, when it is not so expressed in the agreement.[1]
With regard to the two first objections, it is sufficient to observe, that it does not appear from the de
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claration, nor is it shown by the pleadings, that the defendants are a corporation, or capable of being sued as such. The names and additions by which they are described are a mere descriptió pérsonarum, and they remain liable only in their private capacities. Without such a construction, the covenant would be nugatory and void ; *and there [*327] is no reason to adopt a different one. They have affixed their private seals to the instrument, not a corporation seal.
Covenants may be taken distributively, according to the subject matter, although there be no express words of severalty. The evident intent of this covenant was, that each congregation should be separately liable for what they stipulated to pay ; and that intent should be carried into effect, as far as the terms will admit. No more is claimed in this action than what may be severally demanded. The breach is not alleged as to any thing that may be deemed a joint undertaking.[1]
It was not necessary to state a request in order to show a breach of the covenant. It is enough that it is alleged to be broken. The request is not a condition precedent. It is not a case in which a request is essential to the right of action. The bringing of the action is, of itself, the legal demand, and it was a duty which the defendants were bound to dis charge without a demand.[2]
The request mentioned in the covenant relates merely to the election which the plaintiff had to demand payment
(a) (a) Benigna facienda sunt interpretations propter simplicitatem laicorum, ut res magis valeat quam pereat; et verba intewtioni, non, e contra, decent inservire. Co Litt. 36, (a). A liberal construction shall be given to written instruments so as to uphold them if possible, and carry into effect the intention of the parties. Bro. Max. 237-249, supra, 70, 71, n. (a). In Ludlow v. M’Crea, 1 Wend. 228 , 231, Sutherland, J. says, “ covenants are to he construed according to their spirit and intent, and where from the subject matter of the covenant, it is the evident intent of the parties that they should be taken distributively, they may be so taken, though there be no express words of severalty.” See also to the same point, Walker v. Webber, 3 Fairf. 65, 67. Comyn. on Contracts, Huntington’s ed. 23. Evans’ Pothier on Obi. P. 1,-c. 1, s. 1, art. 7.
(b) (b) 1 Chit. PI. Dunlap’s ed. 287, 288.
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quarterly or half-yearly. The payment quarterly was. for the-benefit of the plaintiff. If not demanded quarterly, the defendants were bound, at all events, to pay half-yearly. ' We-are of opinion,, that the demurrer is not-.well taken, arid that the plaintiff must have judgment.
Judgment for the plaintiff.'