Wells v. Monihan — 35 N.Y. St. Rep. 494

Majority

p. 494

Theresa Wells, as Treasurer of Excelsior Assembly No. 4120 of the Knights of Labor, Resp’t, v. Edward H. Monihan et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed February 4, 1891.)

Headnote

1. Associations—Right to súb.

An unincorporated association consisting of more than seven persons was formed under a warrant and charter issued by the General Assembly of the Knights of Labor. Subsequently this charter was revoked. Held, that whether such revocation was within the powers of the General Assembly or not it did not affect the right of the association, under Code Civ. Pro., § 1919, to sue upon a note taken in its name for money loaned by it.

2. Bills and notes—Statute op frauds.

A note was as follows: “Amsterdam, ¡N\ Y., ¡November 26, 1886. I, undersigned, promise to pay six months after date the sum of $500, which was received by the Local Executive Board K, of L. from Excelsior-Assembly 4120, K. of L., to Excelsior A. 4120, or their treasurer. E. H. Monihan. John Stack.” Held, that the note did not show on its face that it was necessarily a promise to pay the debt of another, for although - its consideration was expressed to be the receipt of money by the ¡Local Executive Board, the money might have been borrowed by the makers! and yet have been by their order or consent paid to some one else.

3. Same—Consideration need not be expressed.

It is not necessary to the validity of a note that the consideration be expressed or in the first instance proved.

4. Same—Uncertainty.

The note is not void for uncertainty because it states that payment will-be made to the Assembly “or their treasurer.” These latter words quoted are either surplusage or declarative of the agent by whom the payee will receive payment.

5. Same—Ownership.

If the General Assembly of the K. of L. did annul the charter of the Local Assembly the latter -was not by that act alone deprived of its-property.

Appeal, from a judgment in favor of plaintiff entered upon the-report of a referee.

N. H. Anibal (E. J. Meegan, of counsel), for app’lts; George S. Devendorf (Charles S. Nisbet, of counsel), for resp’t.

This is an appeal by the defendants from judgment bn the report of a referee in an action brought upon a promissory note made by the defendants.

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This action is brought by the plaintiff, as treasurer of an unincorporated. association, consisting of seven or more, known as Excelsior Assembly, No. 4120 of the Knights of Labor. This association was formed in pursuance of what is called a warrant and ■charter, issued by the General Assembly of the Knights of Labor in August, 1885. ■ It is shown that on May 26, 1887, a circular letter was issued by the general executive board, stating that they had revoked this charter. The defendant produced a book called ■a record of the decisions of the general master workman; and read therefrom certain, so called, decisions. They do not seem to be decisions of any controversy made on a hearing of parties, but to be in the nature of by-laws or additions to the constitution. We are unable to see how the authority to lay down such bylaws is obtained. One of these so called decisions states that a local assembly which refuses to obey the lawful command of the general executive board may be suspended. But on ex.amining the constitution for the powers of this board we do not discover such power of suspension.

We do not, however, deem it necessary to decide on the validity of the action of this board.

Certainly a number of persons amounting to seven or more may associate without obtaining the permission of any other body. And when they have thus associated and have a president and treasurer they may sue in the name of either of said officers. If they can do this without the consent of any other body, ■clearly no other body can take away the right given by statute to sue in this manner.

If it be claimed that on this annulling of the charter the property is to be forwarded to some general secretary, that question is not to be tried in this action. Wicks v. Monihan, 54 Hun, 614 ; 28 N. Y. State Rep., 89. Whatever, the board did, we suppose that the association of' seven or more persons might still remain, so far as to permit the plaintiff to bring the action. Section 1919, Code Civil Procedure, is very extensive in its application. Any company of persons which has a president or treasurer is an association under that section. And the persons who form this association of which plaintiff is treasurer are not annulled, even if their charter is.

The note in suit is as follows:

“ Amsterdam, N. Y., November 26,1886.

“ I, undersigned, promise to pay six months after date the sum of §500, which was received by the Local Executive Board K. of L., from Excelsior Assembly 4120 K. of L., to Excelsior A. 4120, or their treasurer.

“E. H. Monihan.

“ John Stack.”

The defendant insists that this note is void under the statute of .frauds, in that it is a promise to pay the debt of another and the consideration does not appear.

But the note does not show on its face that it is necessarily a

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promise to pay the debt of another. It is true that its consideration is expressed to be the receipt of money by the local executive board. But the money may have been borrowed by the makers of the note, although received by some other person. The borrowers of the money could request that it be delivered to another person. " And it might be that such other person would be under no liability to the lender.

In the case of Carnwright v. Gray, decided in this court September, 1890, 33 N. Y. State Rep., 98, it was held that even in the case of a non-negotiable promissory note, sued upon by the payee, it was not necessary that a consideration should be expressed, or in the first instance proved. Under that decision, therefore, the statement of the receipt of the money contained in the note in question was not necessary to the validity of the note. For there can be no doubt that the instrument in question is a. promissory note; as it is an absolute promise to pay a certain sum of money at a definite time. That it is payable to the assembly or their treasurer does not make it 'payable to one or the other of two persons. The words “ or their treasurer ” are either surplusage or declarative of the agent by whom the payee will receive payment.

The defendants then can only insist that such statement shows on the face that the note is a collateral undertaking to the liability of some other person. We think that that does not appear on the' face of the note.

The referee has found as a fact that the consideration of the note was $500 paid and advanced on or about the date of the note' to the defendants by Excelsior Assembly No. 4120. The defendants say that this finding is erroneous. It appears that at a meeting of this assembly, November 24, an application was made by the executive board. K. of' L., Textile workers, for a loan of $500, which it was voted to grant. The plaintiff testifies that she was directed by the master workman to pay the money to Monihan; that she had an interview with defendant Monihan; that he signed the note and obtained the signature of defendant Stack, delivered the note to her and she paid him the money. The defendantMonihan denies that the money was paid to him. One Sheeby also says that he was present when the money was received; and that defendants were not present as he saw.

There is a conflict of testimony upon this point But it is quite possible that, while the Assembly No. 4120 "was willing to part with its money to be used by the other body, it was not willing-to part with it except by lending it to some responsible person, and not trusting to the very indefinite responsibility of an executive board. It does not appear that there was any promise by the executive board to re-pay. Qf course if the loan were made to that board, an obligation to re-pay would arise without an express promise.- But it is quite possible, as the referee finds, that the loan was really made to these defendants, although they borrowed the money for the use of the executive boord. So at least-the note implies. This seems to have been the view of the plaint-riff, and we think that the finding of fact of the referee'as to the-

p. 497

actual transaction has evidence to support it, and should be sustained.

Any claim that by the alleged annulling of the so-called charter the assembly was deprived of its property, is disposed of by Austin v. Searing, 16 N. Y., 112 .

It is of coui’se true that an agreement without a consideration will not be enforced. The defendants insist that this is the agreement to answer for the debt of another, and that to make such an agreement valid the consideration must be expressed therein. We do not think it necessary to pass on this question for the reasons above stated. But we do not understand the decisions cited by the defendants to hold that where the consideration is executed it must necessarily be expressed. Thus it is said of the contract: “ It must show on its face what the whole agreement is, so far as the same is executory, and remains to he performed, and rests on unfulfilled promise.” Drake v. Seaman, 97 N. Y., 234 . Again: “ The existence, or acknowledgment of the existence, of a legal consideration is absolutely indispensable.” Barney v. Forbes, 118 N. Y., 585 ; 29 N. Y. State Rep., 980.

W e have examined the question raised by the defendants as to admission of evidence against their objection. We do not think there was any material error.

The judgment is affirmed, with costs.

Landon and Mayham, JJ., concur.