Burton v. Furniture Company , 10 Tex. Civ. App. 270 ( 1895 )

This was an action by the Grand Rapids School Furniture Company for debt, against W.M. Burton and George Scott, as deacons of Mount Carmon church, and Jo Roberts, Henry Searcy, Calvin Bibly, Jim Brown, and George Simmons, trustees of said church. Plaintiff alleged, that said church was a religious association situated and existing in Fort Bend County, and was composed of many members, among whom were the defendants; that on March 19, 1889, the defendants W.M. Burton and George Scott were the duly acting and qualified deacons of said church; and that on the date of the institution of the suit below, July 4, 1882, the remaining defendants were the trustees of said church. That on March 19, 1889, the defendants Burton and Scott, in their capacity as deacons of said church, executed and delivered to plaintiff the note sued on, whereby the defendants, in their capacity as deacons and members of said Mount Carmon church, undertook and promised to pay, and were justly indebted and bound to pay plaintiff, the sum mentioned in the note, with interest, etc. Plaintiff prayed for citation to the defendants in their said capacity, and for judgment against them "in their said capacities and as members of said Mount Carmon church, and for execution against said Mount Carmon church."

The evidence showed, that the defendants were deacons, trustees, and members, as alleged, of a religious organization in Fort Bend County by the name of Mount Carmon church, which existed on March 19, 1889; and that Burton and Scott were deacons; and acting for the members, purchased of plaintiff, for the use of the church, a lot of furniture, for which they executed the note sued on, writing after their signatures, "Deacons Mount Carmon Church;" and that said furniture was in use by the church when this suit was brought.

Plaintiff had judgment in accordance with the prayer contained in the petition.

This was an evident attempt to sue the church as an organization, which, as it was an unincorporated association, could not be done. Tunstall v. Wormley, 54 Tex. 476; Devoss v. Gray, 22 Ohio St. 168; Wilkins v. The Wardens, 52 Ga. 352; Ash v. Guie, 97 Pa. St., 498. An unincorporated association is no person, and has not the power to sue or to be sued. When such an association has been organized and is conducted for profit it will be treated as a partnership, and its members will be held liable as partners. Ash v. Guie, supra. But in the case of religious and eleemosynary associations, the members and managing committee who incur the liability, assent to it, or subsequently ratify it, become personally liable. Ash v. Guie, supra; Lewis v. Tilton, 19 N.W. Rep., 911; Sheehy v. Blake, 39 N.W. Rep., 479; Add. on Con., sec. 142.

Tested by these principles of law, the petition discloses no cause of action against any one except Burton and Scott, the deacons who signed the note, and that not as deacons but as individuals. Evidence tending to show that these defendants had formerly recovered judgment against the plaintiff in a suit on the note against them individually was improperly excluded.

The judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.