James C. Stone v. Congregational Society of East Berkshire, 14 Vt. 86

The opinion of the court was delivered by Bennett, J. This case comes before us upon the report of referees; but inasmuch as they report to the court below that they intended to decide according to the principles of law, it is competent for this court to revise their decisions, so far as any questions of law are raised upon the report. The referees have not given us the evidence or the facts proved before them, upon which they found that the defendants had assumed and promised as alleged in the plaintiff’s declaration.

Two questions only can be raised upon this report; 1st. was there error in admitting certain testimony detailed in the report? and 2d, in excluding certain persons offered as witnesses on the part of the defendants? Though the argument has taken somewhat of a wide range, yet the opinion of the court need only be expressed upon the points which legitimately arise in the case.

It seems that evidence, on the part of the plaintiff, was admitted tending to prove that certain individuals had called themselves members of the Congregational Society of East Berkshire ; and that such individuals had held meetings, (no doubt meaning as such society,) and in one of such meetings had employed the plaintiff to perform the work and labor sued for.

The doctrine is now well settled in this country that corporations are liable in the action of assumpsit, the same as individuals; and that an express assumpsit may be proved, or one may be implied from the acts of the corporators themselves, or of their authorized agents. No one can doubt that the testimony, offered and admitted, was proper to show that the plaintiff was employed to perform the services by persons who reputed themselves to be the corpora-tors of the society, and this too at a corporate meeting of the same.

But this evidence seems to have been objected to, on the ground that the plaintiff must have first shown some written constitution or organization of the society. But this would not constitute an objection to the admission of the evidence, though it might not avail the party, provided it was necessary for him to show a written constitution by which the persons employing him, had been organized into a corporation.

The report of the referees states that this testimony was objected to on the ground “ that some written constitution or organization of the society should be produced and the question has been argued, whether it was incumbent upon the plaintiff to show some written constitution or organization of the seciety before he could recover. It is to be remarked that the defendants appear in court by the name in which they are sued ; there is no plea, alleging a misnomer or putting in issue the existence of the defendants, as a corporation, but a rule of reference is entered by consent of parties.

It is well settled that the misnomer of a corporation is only matter of abatement, and we think that where the defendants appear under the corporate name by which they are sued, and, by agreement of parties, refer the cause, it is too late for them to call in question their corporate existence before the referees. It is a recognition of such an existence ; and, without it, the whole proceeding is but a nullity.

No question is raised as to the legality of the meeting nor of the power of the individuals who, as corporators, contracted with the plaintiff, to bind the society, and it would indeed be going a great way to hold that the defendants, after having held themselves out as members of the society, held meetings, and, in one of them, employed the plaintiff to render the services now claimed, have the right to call upon the plaintiff to prove that there is such a society, capable of acting as they have professed to act.

It is evident that, at common law, the members of this society could not be witnesses for the corporation, and our courts have always in such cases adhered to the principles of the common law. The case does not come within the provisions of the act of 1816, making the members of certain corporations witnesses in their own behalf, and they were properly rejected. The judgment of the county court is affirmed.