Samuel H. Peckham versus The Inhabitants of the North Parish in Haverhill, 16 Pick. 274

Wilde J. drew up the opinion of the Court. The first question submitted to the Court is, whether, upon the facts agreed, the plea in abatement can be maintained.

The defendants’ counsel contend, that the facts show a joint promise by the North Parish in Haverhill and the Congregational Society in Plaistow, that both corporations agreed to act jointly in settling the plaintiff as their minister, and that the terms of the proposals made by their respective committees to the plaintiff, and his answer, denote the nature of the contract, and the meaning and intention of the parties, and prove conclusively, that the contract was joint, and not joint and several.

On the other hand, it has been argued by the plaintiff’s counsel, that however conclusive the facts may be, to show a joint contract in some respects, yet in regard to the payment of the plaintiff’s salary, the promises of the two corporations were several, or joint and several, and in either case this action can be well maintained. There can be no doubt, we think, that in the call and settlement of the plaintiff, as the minister of the parish, and the religious society in Plaistow, the two corporations acted jointly ; but whether they jointly promised to pay his salary, is a question of no little difficulty.

It must be determined, however, according to the true intent of the parties to the contract, and not strictly according to technical rules ; for in the construction of all contracts, the situation of the parties, the subject matter of their transactions, and the whole language of their instruments or stipulations, are to be taken into consideration, in determining the meaning of any particular sentence or provision. Sumner v. Williams, 8 Mass. R. 214. No particular language or phraseology, therefore, is necessary to make a contract joint, or joint and several.

In all cases we must inquire what was the true intention of the parties. A contract may be binding upon several persons severally, although they do not so bind themselves in express terms. Thus in a case in Dyer, three were bound in an obligation thus, “ we bind ourselves et utrumque nostrum per se,” and the bond was held good enough and several. Dyer, 19 b. So, where two bound themselves, or any of them, and the obligation was sealed and delivered by both of them jointly, it was held to be a joint and several bond. Bac. Abr. Obligation, D 4.

And so we apprehend that it cannot well be doubted, that two or more covenanters, or promisors, may make a contrail, consisting of distinct stipulations, as to some of which they may covenant or promise jointly, and as to others separately. If two or more should make a conveyance of lands, and covenant jointly that they were seised ; and a covenant were added, that in case the grantee should be evicted, each should pay a particular sum ; we cannot doubt, that such covenants would be binding, the first being a joint, and the other a several covenant.

So, if two or more should contract jointly with another to build a block of houses or stores, they might severally promise each to pay such a particular sum as might be agreed upon by the parties. Such contracts, however unusual, are in no respect illegal, and the party suing for the breach of such a contract might have a joint or several remedy, according to the nature of the breach.

Upon these principles, and considering the situation of the parties, and the votes and proceedings of the two corporations, we are- of opinion, that their promises to pay the plaintiff’s salary were several, and that each is liable severally for the portion they agreed to pay respectively. At a parish meeting in January 1831, £< a committee was chosen to unite with the congregational society in Plaistow to engage the Rev. S. H. Peckham to be their minister ; ” and it was also voted, “ that said committee appropriate the income of the parish funds to Mr.

Peckham’s support, and no more.” The committee of the Parish exceeded their authority in the proposals made to the plaintiff, by adding a stipulation “that the income of the parsonage funds belonging to the said parish and society should be $285 annually,” and that, the plaintiff should have the free use of the parsonage lands and buildings. The question then is, have the parish ratified the proposals and doings of their committee.

After the plaintiff’s ordination a parish meeting was duly notified, and one of the articles was, “ to see if the parish will approve of the doings of the committee in settling the Rev. Samuel H. Peckham as . their minister, without the consent of said parish ; ” and it was voted to approve their doings. This

article and vote, if construed strictly, would be confined to the settling of their minister without authority ; but we think the reasonable construction is, that the parish ratified the doings of their committee as to the unauthorized stipulation in respect to the income of the parish fund and the use of the parish lands.

But whether the parish intended to adopt this stipulation as binding on them alone, or on them jointly with the other corporation, does not very clearly appear ; nor do we think it necessary to decide that question in this case ; for if this stipulation were a joint promise of the two corporations, it would not follow that the promise to pay over to the plaintiff the income of the parish fund, was a joint promise also. This promise must have been considered by the parties as binding only on the parish ; and it cannot be presumed, that the contract in this respect was supposed to admit of any other construction.

It is impossible to imagine that the parish and society intended to become sureties for each other, even if they had any right so to do, which may well be doubted. And besides, the ratification of the committee’s doings must be confined to their doings so far only as they exceeded their authority. By the previous vote of the parish they had bound them selves to appropriate the income of the parish fund for the plaintiff’s support; that certainly was a promise of the defend ants alone. Until they ratified the doings of their committee they were bound to pay nothing more.

Then as to the use of the parish lands and buildings, and the stipulation that the income of the funds should amount to $285, the committees acted without authority from the society, as well as from the parish. Neither was bound until the doings of the committees weré ratified, and each became bound by its own vote of ratification. It does not appear, that the society have ever expressly ratified the doings of their committee, and if they nave impliedly, by voting to pay the $60 per annum, and their share of the income of the fund, still they have never ratified the stipulation as to the $285.

These considerations lead to the conclusion, that the parish and society acted severally and not jointly, as to the support and maintenance of the plaintiff, although they united and jointly engaged him to settle with them as their minister. But i' this contract were joint, still we think that the plea n abate nent cannot be maintained. It does not aver that the society in Plaistow was a corporation within this Commonwealth, nor that it had any attachable property in this State, nov ^at it was amenable in our courts, nor that it was authorized by law to make the contract.

It is averred, that the corporation promised ; but an infant or feme covert may promise, although their promises may be void or voidable. But perhaps the last defect may be of little importance, and we lay no stress upon it. It is a sufficient objection to the plea, that it does not aver any fact to show, that the society in Plaistow was liable to be sued in this Commonwealth ; and we think it was not liable, because no writ can, by our laws, be legally served against a corporation in another State.

The St. 1785, c. 75, § 8, directs the mode of service on towns and other corporations within the Commonwealth ; and other statutes regulating the service of writs extend only to individuals, and not corporations, to natural, and not to mere legal entities. The case of M‘Queen v. Middletown Manuf. Co., 16 Johns. R. 5, is directly in point ; and we concur in the opinion of the court delivered by Judge Spencer. The statutes of New York, so far as they bear on the point in question, are substantially the same as ours.

The court held in that case, that a foreign corporation could not be sued in New York; that process against a corporation must be served on its head, or principal officer, within the jurisdiction of the sovereignty where this artificial body exists ; and that if the president of a bank of another State were to come into New York, his functions would not accompany him, when he moved beyond the jurisdiction of the government under whose laws he derived his character.

In the law thus laid down in reference to the operation of the statutes of New York, we fully concur, and as there is no material difference between the statutes there and here, we hold that all foreign corporations are without the jurisdiction of the process of the courts of this Commonwealth.

If therefore the contract in this case were joint, still the defend ants may well be sued without joining the society in Plaistow Nor is any amendment in the declaration necessary ; for as the plea in abatement cannot be maintained, the plaintiff must plead to the merits, and the non-joinder of the society in Plaistow, cannot be pleaded in bar, nor taken advantage of on the general issue upon the ground of variance. The defendants did promise, though not alone, if it were a joint contract, and not several. As to the merits, the defendants object to the contract as illegal and not binding on them : 1.

That two parishes cannot join in such a contract, especially if one of them be within another State ; and 2. That the contract contains an illegal provision, as a parish cannot legally make a ministerial contract, that shall put it out of their own power, and into the power of another body, to determine when it shall be dissolved. Neither of these objections can, we think, be maintained.

By the St. 1786, c. 11, § 3, parishes are authorized to grant and vote such sum or sums of money as they shall judge necessary, for the settlement, maintenance and support of ministers or public teachers of religion ; and it was never doubted that a parish might raise money for the support of public worship, when they had no settled minister, and might contract with a minister to preach with them for any term of time ; and if so, there seems to be no good reason, why a contract would not be binding, if it were for the services of the minister during life, whether he were settled in the usual form or not.

We do not however think that there is any thing irregular, or illegal, in the settlement of a minister over two contiguous parishes or over two poll parishes, if they can agree to worship together. The law does not prohibit such a union ; and we do not perceive that the circumstance, that one of the parishes is in another State, will make any essential difference.

And besides, if a tax could not be assessed in this case to pay the plaintiff’s salary, that would not bar this action, for the plaintiff only seeks to recover the income of the parish fund, and the rents and profits of the parsonage lands and buildings. It does not appear, that the income for the last year fell short of the sum of $285 ; but however that may be, the plaintiff is entitled to recover the income of the nansh fund. By the third

article of the Declaration of Rights, the legislature are directed to authorize and require towns, parishes, t0 mal{e suitable provision, at their own expense, for the support of protestant teachers of piety, religion, and moral ity, in all cases where such provision shall not be made voluntarily. When it is done voluntarily, and with funds belonging to a parish, we know of no restriction upon their power and right to appropriate the funds for that purpose, as they may deem suitable and proper.

As to the other objection, we think there is nothing illegal m the mode agreed upon for the dissolution of the contract ; but if that part of the agreement were void, still the parish could not dissolve the contract at their own will and pleasure, without alleging some misconduct on the part of the plaintiff, who did not hold his office at the will of either party ; as was fully settled in the case of Avery v. Tyringham, 3 Mass. R. 160. We are of opinion, therefore, that in this form of action, and upon the merits of the case, as it appears upon the facts agreed, the plaintiff is entitled to recover.