Phipps v. Jones

1. There should be no doubt about the right of an unincorporated religious society to sue on a contract made with it in its associate capacity and for the legitimate purposes of its association, even though there be no persons named or described in the contract as trustees or committee-men on behalf of the society. Such associations since the Act of 1731 have been recognised as having, in law, an associate and quasi corporate existence. 2. An engagement to subscribe for the benefit of a proposed association for the building of n church, is a mere proposal, and revocable until the association is formed; and the subscription is withdrawn by the death of the subscriber before its acceptance. 3. If the association had been formed, and a contract for a lot or for a building had been entered into on the faith of such subscription, in the lifetime of the subscriber and with his express or implied assent, the subscription would have been binding on his representatives.

Error to the Common Pleas of Chester eounty. ' This was an appeal, entered to January Term, 1850, by the defendants in the action, from the judgment of a justice of the peace, in a suit by B. W. Jones and two others, trustees of the Doe Run Valley Church, v. Phipps and Harvey, administrators, &c., of Ellj| Phipps, deceased, in which suit the judgment of the justice was 'for the plaintiffs for $50 and costs. The plaintiffs declared in assumpsit, and the plea was non assumpsit, and payment with leave, &c. The suit was founded on a paper which, was signed some years prior to 1849, and was as follows:- “ As the want of a house for public worship in the village of Doe Run has long since been noticed and lamented, and at this particular period a more general feeling is manifested to-erect a house for the purpose aforesaid; in order to ascertain the amount of means that could be depended on for this purpose, we, the subscribers, do each of us agree to pay the sums set opposite our respective names, for the purpose of building a house for the purpose and in the place aforesaid, or its vicinity, to be under the control of the Presbyterian denomination of Christians; with the understanding that when, in the opinion of at least three of the principal contributors, sufficient money is subscribed to justify the undertaking, they shall give notice to that effect by appointing a time and place of meeting of contributors, for the purpose of choosing a building committee, and making such other regulations as may be agreed upon.” It was signed by about 200 persons, including Jones, G. and A. Mitchell, and Ellis Phipps, the latter agreeing to pay $50. In June, 1849, after the death of Ellis Phipps, J. M. Thompson drew up a notice purporting to be signed by him, B. W. Jones, George Mitchell, and Andrew Mitchell (but whether signed by the last three named did not appear), which was served on one of the defendants below, who stated at the time that he would not attend. This notice announced that a meeting of the contributors would be held, &c., for the purpose of choosing a building committee, and making such other regulations as might be agreed upon. At the time and place named for the meeting of the contributors, neither of the defendants below attended, and but eight persons were present, who proceeded to elect Benjamin W. Jones, George Mitchell and Andrew Mitchell a building committee, and then declared them trustees of the funds contributed, and to he invested with all the rights of the contributors for their use, and to have the whole power of the contributors for the purpose of collecting the money then subscribed, or which might thereafter be subscribed, in such manner as they might deem advisable. The persons thus appointed the building committee selected the site for a church, and erected the-building. Suit was then instituted against the defendants below to recover the $50 alleged to have been subscribed by Ellis Phipps. The defendants below contended that there was no promise which would bind the intestate during his life, or his representatives after his death; that there were not mutual prómises, and-, at most, the subscription was but a-promise of a gift, which could not take effect till the delivery of the thing given. On the part of the defendants a number of points were submitted, the first of which was, that to every contract there should be parties who have given their reciprocal or mutual assent to the performance or non-performance of some act. 2. That the paper signed did not contain the names of parties with whom any agreement was made, or to whom the money was to be paid. 6. That the paper was merely experimental, contemplating a future agreement between the subscribers, which was never made. 8. That the decease of Phipps, before the time appointed for the meeting of the subscribers, rendered it impossible for him to attend, and no action could be maintained against his representatives. 10. It was not shown that any three of the principal contributors, before the meeting was called, came to the conclusion that sufficient was subscribed to build the church, and that such fact should have been shown. Haines, J., inter alia, charged the jury that the jiaath- of Phipps, previous to the time when thejneeting was called, did not 'discharge his estate from liability, he never having erased his name from the paper. Notice of the intended meeting was given to one of the defendants; and there is no evidence that others of the subscribers, not notified, have complained. That a moral consideration was sufficient to support a promise, and that, where several promise to contribute to a common object, the promise of each is a good consideration for the promise of the others. He further charged, that it was not material that the subscription paper did not contain the names of persons to whom payment was to be made. There was a provision for the call of a meeting to carry out the object, and the plaintiffs were appointed to build the church and receive the subscriptions. There were therefore, substantially, parties contemplated, and authority given to raise them when their services were required. He referred to the opinion of Chancellor Walworth in the case of Stewart v. The Trustees of Hamilton College, 2 Denio 413. Verdict for $50 damages. The charge was excepted to, and various errors were assigned to it.