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articles of agreement of such an association, whether called a "con-
stitution," "charter," "by-laws," or any other name, constitute a
contract between the members which the courts will enforce, if not
immoral or contrary to public policy or the law of the land. Hyde
V. Woods, 94. U. S. 523, 2 Sawy. 655; Bac. Ben. Soc, sees. 37, 91,
and sec. 116, subd. 1; Austin Abbott's note to Ebbinghousen v.
Worth Club, 4 Abb. N. C. 300, 301; Nibl. Mut. Ben. Soc, sees. 92,
93.

The only persons having control of these funds were the members
in good standing in the local assembly, by the agreement of all the
members, as shown by the constitution and by-laws of the Knights
of Labor, which constitution and by-laws in this respect were known
to all the members when they paid in their money, as found by the
jury under the charge of the court. Not only did the assembly in
regular lodge meeting vote this assignment to plaintiff, but, in pur-
suance of that vote, all the members of the assembly in good stand-
ing executed an assignment to plaintiff of their right, title, and
interest in this money to plaintiff. He was thereby, under the law
of the order and of the land, entitled to sue and recover the money
in the hands of the defendants, if it belonged to the assembly, as the
jury found it did. The defendants divided this money up between
themselves and Heurion, relying upon difficulties and technicalities
in the law as they supposed it to be to keep it. It is not to be re-
gretted that they were mistaken in the law, and therefore deprived
of the fruits of at least an attempted moral larceny.

The judgment of the court below will be reversed, and judgment
will be entered in this court for the plaintiff upon the general verdict
for the amount thereof, and with interest from the date thereof.
The plaintiff will recover costs of both courts.

The other Justices concurred.



SECT. II] OWNERSHIP OF PROPERTY 561

WALLACE V. THE PEOPLE
^ Supreme Court of Illinois. 1872

63 III. 451

Writ of error to the Circuit Court of Perry county; the Hon.
M. C. Crawford, Judge, presiding. . . .

Per Curiam: At the May term, 1871, of the Perry County Circuit
Court, the plaintiff in error was indicted for the crime of larceny.
The indictment contains but a single count, in which it is charged
that the property alleged to have been stolen was the property of
the "American Merchants' Union Express Co."

A motion was entered to quash the indictment, which motion the
Circuit Court overruled. A trial was subsequently had, and the
plaintiff in error was found guilty, and thereupon he entered a mo-
tion in arrest of judgment, which was also overruled.

The rulings of the court on these motions are now assigned for
error.

We are of opinion that the ownership of the property is defectively
stated.

It is not averred that the American Merchants' Union Express Co.
is a corporation.

The rule seems to be well settled that property, vested in a body
of persons, ought not to be laid as the property of that body unless
such body is incorporated, but should be described as belonging to
the individuals composing the company. Wharton's American
Crim. Law, sec. 1828, p. 659; 2 Russell on Crimes, p. 100.

In this indictment, the property is not described as belonging
to any natural person or persons, nor to any corporate body, and this
defective statement was the ground of the motion in arrest.

The error was fatal, and the judgment must be reversed and the
cause remanded. Judgment reversed.



LAVRETTA v. HOLCOMBE

Supreme Court of Alabama. 1893

98 Ala. 50,3

AlPPEal from the City Court of Mobile.

Tried before the Hon. O. J. Semmes.

This was a suit by John L. Lavretta to recover of Wm. H. Hol-
combe, the sheriff of Mobile county, the amount remaining unpaid
on a venditioni exponas, which was placed in his hands for collection,
and which was issued in an attachment suit brought by the said
Lavretta against one Moraquez, his tenant. The complaint alleged
that the sheriff had levied upon sufficient property to satisfy the



562 CORPORATE FEATURES OF LABOR UNIONS [CHAP, XI

claim, and had illegally discharged from the levj^ some portion thereof,
leaving an unsatisfied balance due the plaintiff. It was shown that
the sheriff had levied an attachment upon certain property found in
the building occupied by said Moraquez, and which, under one
aspect of the evidence, belonged to him at the time he leased the
premises from Lavretta, but which he subsequently sold to the El
CosmopoUtano Social and Literary Club. After the sheriff had
taken the property under the attachment writ, but before a sale, he
was notified that some of the property levied upon was claimed by
said club. He thereupon made demand upon the plaintiff, Lavretta,
for an indemnifying bond as to that part of the property, and upon
Lavretta's failure to give the bond, the property claimed by the club
was released.

The defendant filed a number of pleas all of which, with varying
phraseology, set up that after he had levied on the property and was
about to sell under the writ in his hands, a portion of the property
was claimed by affidavit as the property of the Cosmopolitano Club,
and that he had a reasonable doubt whether said property was
subject to said levy, and that he had therefore demanded an in-
demnifying bond from the plaintiff, which was refused. To these
pleas the plaintiff demurred. The demurrers were overruled, and
this action of the court is the chief ground of error assigned in this
court. . . .

Haralson, J.^ The plaintiff, Lavretta — appellant here — sued
out an attachment against Moraquez, returnable to the City Court
of Mobile, placed it in the hands of the sheriff, Holcombe — ap-
pellee here — who levied it on personal property supposed to belong
to the defendant in attachment. The suit was prosecuted to judg-
ment in said court, for the sum of $478.24 and costs; the property
levied on was condemned to be sold for the satisfaction of the judg-
ment, and a writ venditioni exponas issued and was placed in the
hands of the defendant, as sheriff, who advertised it for sale, and on
the day of the sale, and before it came off, and the property which
had been levied on was about to be sold under that writ, one Gerald,
as picsident of the "Cosmopolitano Club," by his affidavit, made
claim to a part of said property as being the property of said club
and not of the defendant in execution; and defendant, having rea-
sonable doubt whether the property he had levied on, whicli was
claimed by said cldb, belonged to tiie defendant in attachment,
and was liable to levy and sale under said writ, notified the plain-
tiff of this claim and of his reasonable doubt as to the ownership of
the property, and icquired of him a l)ond of indemnity, before pro-
ceeding to sell that portion of it which was claimed by said club;
and plaintiff refused to give a bond of indemnity, and after ten days
from the time he required said bond — no bond having been given —

li[^ Only that part of the opinion dealing with the question of ownership by the
club is given. — Ed.



SECT. II] OWNERSHIP OF PROPERTY 563

defendant released that portion of it which was so claimed, and sold
and accounted for the balance. . . .

In the course of the trial, an effort was made, by the defendant
as is stated, to establish that the Cosmopolitano Club, which claimed
the part of the property levied on, was a corporation, and for that
purpose, offered in evidence the incorporation book, kept in the
office of the judge of probate, and the procee^lings touching the
organization of said Club, as found in said book, but they were ruled
out, on the motion of the plaintiff, "because they did not show a
corporate organization as required by law." It could have served
no indispensable purpose, to show that the Club was organized, for
an unchartered association of individuals, styling themselves the
"Cosmopolitano Social and Literary Club," could have owned the
property levied on, and made claim to it, as well as if they had been
incorporated. Having objected to defendant proving the corporate
existence of said Club, the plaintiff could not well object to proof of
a voluntary association of individuals under that name, and the
objection to the question propounded to the witness, L. B. Gould. —
" Do you know whether or not several people, or a number of
people, acted together, and claimed to be a Club under the name of
the ' El Cosmopolitano Social and Literary Club,' " was properly
allowed, the other evidence tending to show that this Club made
claim to a part of the property levied on, which the sheriff demanded
indemnity to sell. For the same reasons, the question propounded
to and answered by the same witness, which constitutes the basis
for the 5th assignment of error, was allowable.

The statements of said witness, that he had been elected as
president of the Club, as shown by its minutes and that he was, in
May, 1889, and prior thereto, acting as the president of an organiza-
tion or a society of gentlemen, designating themselves, the "El
Cosmopolitano Social and Literary Club," were very proper to be
answered. They tended to show a voluntary organization under
that name, which claimed this property, and that the claim was
not simulated but real. The question propounded was, "if he claimed
to be an officer of that Club?" The answer was, "that he did not
claim to be an officer thereof, but that he had been elected as the
president of the Club, as shown by the minutes." Whether the
minutes of the Club showed he was elected or not, was immaterial,
if he acted, and the statement of the witness was about a collateral
fact, which was also a collective fact, to which he was competent to
testify, as much so as when a witness testifies he executed a deed or
brought a suit. . . .

We find no error in the record, and the judgment of the City Court
is affirmed.

Affirmed.



564 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI

■". LE BLANC t. LEMAIRE

Supreme Court of Louisiana. 1901
105 La. 539

The opinion of the court was delivered by

Blanchard, J. This case presents the question whether church
property, to wit: three lots of ground in the town of Abbeville,
Louisiana, on one of which lots is a church building, on another a
small building formerly used for church services, and the third in
use as a place of burial for the dead, all of the aggregate value of
$2,050, is subject to partition at the instance of a minority, among
those who, at this time, claim membership in the church.

The church in question is known as the Pleasant Green Baptist
Church of Abbeville. It is an unincorporated religious society, but
has maintained its informal organization and its church for many
years.

The rolls of the church showed in 1898 a membership of about
two hundred persons.

In 1897 or 1898 trouble developed over the pastor. A portion of
the membership desired to retain the then incumbent; another
portion opposed him and wanted a change.

The result was great discord and dissension and the formation of
rival and hostile factions.

This continued until finally the pastor seems to have been forced
out — at least he withdrew, and, with a portion of the membership
still adhering to him, is conducting religious services in another
place in the neighborhood.

Meanwhile, the remaining portion of the congregation, constitut-
ing, it seems, the large majority, chose another pastor and with
him are in possession of the church and other property and claim
to be the Pleasant Green Baptist Church of Abbeville.

This majority portion of the congregation is, it seems, holding
regularly religious meetings and services in the church and is en-
gaged in other work usual to organizations of the kind.

That portion of the congregation which formed the faction that
supported the former pastor instituted the present suit. They are
in number, as we count the names in the petition, about fifty — or
about one-fourth of the total membership as disclosed by the roll
made up in 1898.

They sue the remaining members of the congregation — that
portion (the majority) in possession of the church and who recognize
the spiritual authority of the new pastor.

They (the plaintiffs) claim to be members of the Pleasant Green
Hai)tist Church, and as such to be connnon owners, with the other
incmbers of that organization, in the church property. As owners
in common they demand a partition of the property.



SECT. II] OWNERSHIP OF PROPERTY 565

Their prayer is that the three church lots, with the improvements
thereon, be sold for cash for the purpose of partition, that the debts
of the society be first paid out of the proceeds, and that "the residue
be distributed among all the members of the church, share and share
ahke."

Those members made parties defendant answered, in substance,
that the property sought to be made the subject of partition stands
on the record as the property of the Pleasant Green Baptist Church,
and that plaintiffs have no such interest therein as entitles them to
demand its partition.

Their position is that the property belongs to the church organiza-
tion, that it was acquired and must be maintained for church pur-
poses, that its partition would work its destruction for such purpose,
and that membership in the church was not intended to carry and
did not carry with it ownership in fee in any member or minority
of members entitling him or them to force its partition as owner or
owners in common.

There was judgment in the court a qua rejecting the demand of
the plaintiffs and they appeal.

Ruling. — We find that the lots in question were acquired for this
church years ago — one of them as early as 1871.

The price paid for same was small, less than one hundred dollars
for all the lots, and was settled out of the common church funds, with,
perhaps, some assistance from certain members.

We gather from the record that the title was taken, as to one of
the lots, directly in the name of the Pleasant Green Baptist Church
at the time of its acquisition in 1871. As to the other two lots the
title was first taken in the name of Woodson Mitchell, the pastor
at the time, who acted for and on behalf of the church in making
the purchase. For about fourteen years the title remained in his
name, when in 1891 he made formal conveyance of the same to "the
Pleasant Green Baptist Church."

The act recites that in this purchase from Mitchell the church is
represented by its trustees, eight in number, who are named — "to
have and to hold the above described property unto the said Pleasant
Green Baptist Church forever, from and after the date hereof."

The Pleasant Green Baptist Church is not an incorporated body.
It has no legal existence as a corporation. It is, though, a religious
society. It has organization and a church government.

Our law speaks of unauthorized corporations and private societies
and refers to them as capable of acquiring and possessing estates and
having common interests. C. C. 446.

From this, it would seem that such a society as the one we are
dealing with possesses at least a limited legal status.

It was organized for a purpose not only not illegal but commend-
able. To effectuate this purpose it has the right to use and enjoy
the lots of ground in question, to erect and maintain a church thereon.



566 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI

This use of property is essential to its organization and being so it
would seem that this church congregation, as such, may lawfully
be the beneficiary or holder of the lots.

The acquisition of the lots was by specific devise to a particular
society for a purpose named and we find this purpose being now
executed.

The present membership in control of the church, being a large
majority, represent the succession of the original congregation and
constitute the Pleasant Green Baptist Church of Abbeville.

A minority of the congregation, under the case as presented, have
no right to break up the church by forcing the sale of its property
for purpose of partition on the plea of being owners in indivision.
While they may, perhaps, have certain property rights in the church
holdings, they are not considered such owners in indivision as give
them a standing in court to provoke, against the will of the majoritj^,
a partition of that which, by common understanding, was intended
to remain intact for the purpose of religious worship.

We regard this controversy as presenting merely the case of a
small minority of a church congregation seceding from the majority
(not on doctrinal grounds or questions of religious faith or worship,
but on differences of church government), refusing to acquiesce in
the will of the majority, and taking steps to force the sale of the
church property — a course likely to lead to the breaking up of the
church organization itself.

The rule that the will of the majority must prevail applies as well
to religious as to secular societies, so long as the former conform to
the faith and to the forms of worship of the church to which they
pertain. This is so unless the church government or articles of
agreement otherwise provide.

Here, there being nothing to the contrary shown, the minority
of the congregation, who are plaintiff's herein, when they became
members of the church bound themselves to be governed by the
voice of the majority in the matter of church government and the
control and administration of the church property.

They cannot now be permitted to gainsay this and to force the
sale of the church edifice and other property against the will of the
majority.

If this minority of (say) one-fourth of the membership of the
Pleasant Green Baptist Church could do this, one member — a
minority of one out of the total membership of two hundred — could
do it.

This would practically put every unincorporated church or re-
ligious society in the State, owning or holding property, at the mercy
of any one recalcitrant member.

It appears from the evidence that the minority of this cluirch
congregation are not deprived by the majority of any right held in
common by all the members.



SECT. II] OWNERSHIP OF PROPERTY 567

The seceding members are at liberty to return and occupy their
places in the church and enjoy all their rights of membership therein.

This congregation (both factions thereof) should come together
and legally incorporate their church, and when this is done the
trustees should make formal conveyance of the church property to
the corporation.

The church debts, including that due the deposed pastor, should
be paid by the society thus legally incorporated, and the congrega-
tion should endeavor otherwise and in all things to attain to and
live in that state of harmony, good-will and brotherly love inculcated
by the precepts of the Divine Master whose disciples they profess
to be.

Judgment affirmed.

Rehearing refused.

Monroe, J., dissents.^



McLaughlin v. wall

Supreme Court of Kansas. 1909
81 Kan. 206

Per Curiam: The title and body of the petition show that the
action is brought by an association of individuals as an entity, the
character of which is fully described, but in their own names, so
that capacity to sue appears. The petition does not disclose a joint
ownership or tenancy in common of the property with the defend-
ants. It shows ownership by the association, of which the defend-
ants are no longer members. The allegations respecting ownership
by the associated plaintiffs are plain enough. Since the facts are
stated it is not necessary to name the kind of ownership by calling
it either general or special. If the so-called disjunctive allegation
confused the matter, then the amendment ought to have been al-
lowed. The petition shows that the defendants withdrew from the
association but wrongfully keep its property, hence a formal allega-
tion of demand is not essential. The allegations of value in the
petition control in this proceeding. If, as the petition alleges, the
defendants are not members of the order they have no standing to
invoke its laws, but if they have there is nothing in the laws pleaded
to prevent the civil courts from settling the title to this property.

The demurrer to the petition was rightfully overruled and the
objection to the introduction of testimony was wrongfully sustained.
The judgment is reversed and the cause is remanded.^

1 Robertson v. Walker, 3 Baxt. (Tenn.) 316, 318; Thomas v. Ellmaker, 1
Pars. Eq.Cas. (Pa.)98, 111.

2 Alchenburgs v. Lodge, 138 111. App. 204, 209; Ahlendorf t'. Barkons, 20 Ind.
App. 657, 6.59; McFaddon v. Murphy, 149 Mass. 341, 344; Hill v. Rauhan Aarre,
200 Mass. 438; Schiller Commandery No. 1, U. F. M. ?;. Jaennichen, 116 Mich,
129, 130; Moore v. Telephone Co., 171 Mich. 388, 399.



568 CORPORATE FEATURES OF LABOR UNIONS [CHAP. XI

RUSE V. WILLIAMS
Supreme Court of Arizona. 1913

14 Ariz. 445

Franklin, C. J. This is an action of assmnpsit brought by the
plaintiff, in two counts, against the defendants on an alleged joint
and several liability for cash, goods, wares, and merchandise fur-
nished and advanced by plaintiff and his assignor, one A. G. Kurvess.
In the first paragraph of the complaint the allegation is made that
the defendants and each of them are transient persons in a roving
band without residence, but at present domiciled in Yuma county.

A judgment on a joint and several liability of the defendants to
plaintiff was entered for $1,600, interest and costs. The appeal is
prosecuted from the judgment and from the order overruling the
defendants' motion for a new trial. A consideration of appellants'
assignment questioning the sufficiency of the evidence to support
the judgment is determinative of the case. . . .

There was no evidence offered by defendants, but a fair inference
drawn from the evidence in behalf of plaintiff discloses that he and
his assignor, A. G. Kurvess, together with the defendants and others
to the number of about twenty-nine persons, formed themselves
into a voluntary association, unincorporated, calling themselves as
thus associated a "Spiritual Class." The term "association" is a
word of vague meaning used to indicate a collection of persons who
have joined together for a certain object, and the Spiritual Class
thus formed may properly be included within the meaning of the
terms as so defined.

The object of the Spiritual Class was to aid in effectuating certain
ideals in religious life, especially those relating to the communistic
ownership of property. Their aim was to live such a life as Christ
lived, and the mode of life described in the Acts of the Apostles was
the foundation stone upon which was to be erected the arch of a
high ideal in religious belief. Before joining the Spiritual Class,
each person passed a "novitiate," as it were, and before being for-
mally considered a member in good standing was subjected to rather
a rigid examination as to his fitness. It may be stated in the words
of a witness: "We were asked if we were willing to give up all for
the Lord, and were referred to the fourth and fifth chapters of Acts
to read; and, of course, we said we were willing to give up all and
spend our time for the benefit of saving souls and for the benefit of
the Lord. . . . We were supposed to live as one family, and when
one needed anything, whether they put anything in the treasury
or not, they were to have it." The class was formed in Findlay,
Ohio, some time about P'ebruary, 1911, and its membership con-
sisted of persons who had hitherto been acquainted with each other
for some time.



SECT. II] OWNERSHIP OF PROPERTY 569

When the plaintiff joined, he gave up all his worldly possessions
to promote its objects and further his religious belief, the under-
standing being that the class was to live as one family, and the money
he then had and the proceeds of his future labors were to be used
for the support of the class, under the Apostolic doctrine that all
things were to be held in common, and all were to subsist out of the
common treasury; also that no stranger, or any person who was
weary and heavy laden, was to be turned away without food and
comfort. . . .

The evidence is rather vague as to how many of the class had
worldly possessions to sell, and having sold placed the price thereof
in the common fund. Quit(^ a number of them did, and others had
nothing wherewith to replenish. This, however, was their faith,
that the poorest in goods were the richest in spirit. Thus equipped
the Spiritual Class chartered a special car, traveling over the coun-
try and to California. Upon arriving in California they discarded



Online LibraryUnknownA selection of cases and other authorities on labor law → online text (page 71 of 124)