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this writing, three managers were appointed, who were authorized to establish and conduct the paper, when sufficient capital was subscribed, paid in, or secured. Materials necessary to establish the paper were purchased by an agent appointed by two of the managers; and it was held, 1. That the subscribers to the writing were liable, for the debt incurred, as partners. 2. That the acts of the two managers bound the subscribers; and that the concurrence of the third, if it were necessary, where the contrary did not appear, would be presumed. Wells v. Gates, 18 Barb. 554. So, the members of an association are liable for goods furnished on the order of an agent of the association, if furnished with their concurrence and approbation. Ridgely v. Dobson, 3 Watts & Serg. 118; Robinson v. Robinson, 10 Me. 240. See Fredendall v. Taylor, 23 Wis. 538. And where an association, formed for any pur. pose, afterward becomes incorporated, and the corporation then accepts an assignment of all the property of such association, for the purpose of carrying out their objects, they are primarily and jointly and severally liable for all the debts incurred before the act of incorporation. Haslett v. Wotherspoon, 1 Strobh. (S. C.) Eq. 209. See, also, Goddard v. Pratt, 16 Pick. 412; Witmer v. Schlatter, 2 Rawle, 359.

But where A rented a room to an association of individuals, at a monthly rent, and after the contract, B became a member of the association, and, as such, used and occupied the room, it was held, that B was not liable for the rent before or after he became a member. Barry v. Nuckolls, 2 Humph. (Tenn.) 324. And persons admitted to be members, under articles of association of an unincorporated banking company, formed for the circulation of "change tickets," are not liable for tickets issued before they became members. Lake v. Munford, 12 Miss. 312. So, an association which assesses a member, individually, before its incorporation, which incorporation is procured without the concurrence of the member, cannot enforce the assessment against him. Richmond, etc., Association v. Clarke, 61 Me. 351.

Where several persons are engaged in a joint enterprise for their mutual benefit, each has a right to demand and expect from his associates good faith in all that relates to their common interests, and no one of them will be permitted to take to himself a secret and separate advantage to the prejudice of the others. And where one, unknown to his associates, causes to be transferred to the association, property previously purchased by himself, at a price exceeding that paid by him. therefor, he is accountable to his associates for the profits thus made. Getty v. Devlin, 54 N. Y. (9 Sick.) 403. And see Secor v. Lord, 3 Keyes (N. Y.), 525 ; S. C., 4 Abb. Ct. App. 188. But persons who are the owners of property, real or personal, may form a partnership or asVOL. IV-21

sociation with others, and sell that property to the association, at any price; provided, no fraudulent representations are made by the vendors. Densmore Oil Co. v. Densmore, 64 Penn. St. 43.

It is the general rule that the liability of individual members of an unincorporated joint-stock company, growing out of the association, must be determined by the law of the place where the association was formed, and where it had its place of business. But a bill of exchange drawn by the association may be governed by the laws of the place where it is made payable. Cutler v. Thomas, 25 Vt. 73.

§ 5. Officers, their rights and powers. A voluntary association, such, for instance, as the order of Odd Fellows, cannot confer judicial powers on its officers or committees. The creation of judicial tribunals is one of the functions of the sovereign power, and an adjudication of such officers, as such, on rights of property, is not good as a judgment, nor, it seems, as an award. Austin v. Searing, 16 N. Y. (2 Smith) 112. See, also, Savannah Cotton Exchange v. State, 54 Ga. 668.

Where, by the articles of an unincorporated joint-stock association, it was agreed that all the property of the company should be vested in trustees thereafter to be elected, and that the subscribers would pay to such trustees the amount of their respective subscriptions, it was held that an action to recover the amount subscribed by a member might be brought and maintained in the names of the trustees so elected. Cross v. Jackson, 5 Hill (N. Y.), 478. It would, however, have been otherwise, had the articles contained no express promise to pay the trustees. Id. And see post, 167, § 12. And it has been held that an action cannot be maintained by the treasurer of an unincorporated association, against one, upon his promise in writing, to pay money as a subscription, the same being payable to the "treasurer" of such association, alone. Ewing v. Medlock, 5 Port. (Ala.) 82.

Expenses incurred by the trustees of an unincorporated land company, though made in good faith, and although they tended greatly to enhance the value of the land, cannot be allowed as a credit to the trustees in their account, unless such expenditures were authorized by the company. McKinley v. Irvine, 13 Ala. 681. See, also, Crum's Appeal, 66 Penn. St. 474.

6. Officers, their duties and liabilities. The directors of an unincorporated company stand in the relation of trustees to the stockholders; and any gain which may accrue to them in the discharge of their official duties must inure to the benefit of their cestuis que trust. Coal Company v. Fry, 5 Phil. (Penn.) 129. But the trustees of an association are not individually liable for its debts unless they have in some way specially rendered themselves liable. Wolf v. Schlieffer, 2

Brewst. (Penn.) 563. The treasurer of a voluntary association for charitable purposes will be required to account for the money in his hands, and to pay it over to those entitled to receive it according to the interests of the association. Penfield v. Skinner, 11 Vt. 296. See, also, Bennett v. Wheeler, 12 La. Ann. 763; Koehler v. Brown, 2 Daly (N. Y.), 78; S. C., 31 How. 235. And it is held that a committee appointed by an unincorporated association to make arrangements for a public exhibition are individually liable for work necessary for the occasion, which a sub-committee of their number procure to be done, although in making the contract the sub-committee assumed to act as officers of the association. Fredendall v. Taylor, 23 Wis. 538. And see McCartee v. Chambers, 6 Wend. 649; Sizer v. Daniels, 66 Barb. 426.

When a joint-stock operation has been adjusted by the distribution of stock pro rata, according to the interest paid for by the parties, such adjustment cannot be disturbed at the instance of one of the stockholders. Managers appointed in pursuance of a joinder of interests, to conduct the affairs of the parties joined, are liable for neglect or fraud; but the stockholders stand to each other in the relation of co-owners of the property managed, and cannot be made liable for the acts of their managers. Boody v. Drew, 46 How. (N. Y.) 459; S. C., 2 N. Y. Sup. (T. & C.) 69.

§ 7. Of the property of the company. There are said to be four elements of property in all joint-stock companies: First, the capital stock; second, the corporate property; third, the franchise; and fourth, the individual stock of the stockholders. Louisville, etc., R. R. Co. v. State, 8 Heisk. (Tenn.) 663, 795. It has frequently been held that a voluntary, unincorporated association has not legal capacity to receive a donation, even for a purpose denominated "charitable." See Green v. Allen, 5 Humph. (Tenn.) 170; Goesele v. Bimeler, 5 McLean, 223; Baptist Association v. Hart, 4 Wheat. (U. S.) 1; Sherwood v. American Bible Society, 1 Keyes (N. Y.), 561; S. C., 4 Abb. Ct. App. 227; White v. Howard, 46 N. Y. (1 Sick.) 144; ante, Vol. 2, 148, 149. But that a bequest to such an association may be valid or be made to take effect indirectly. See Preachers' Aid Society v. Rich, 45 Me. 552; Cahill v. Bigger, 8 B. Monr. (Ky.) 211; Smith v. Nelson, 18 Vt. 511, 546; Peabody v. Eastern Methodist Society, 5 Allen, 540; Gibson v. McCall, 1 Rich. (S. C.) 174.

The funds of an association which are placed under the control of its managers for the purposes for which they have been raised, may be appropriated to any purpose within the scope of the general object, by a majority of the members present at a regularly convened meeting of

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such association. But they can only be thus applied to further the general purpose for which they were contributed. Thus, money contributed to free a district from a draft of soldiers cannot, by a vote of a mere majority of the persons contributing it, be devoted to establish a city dispensary. Abels v. McKean, 18 N. J. Eq. 462. So, the profits of a fair are required to be applied to the purposes for which the fair was held; and self-constituted trustees have no right to divert the fund from those purposes. Morton v. Smith, 5 Bush (Ky.), 467.

There is no legal impediment to the vesting of the title to property in a company or association before they become incorporated, and no formal transfer of the joint property is necessary upon the formation of the corporation, provided it is acquired for the purpose of forming a corporation, and the members of the association agree that it shall belong to the corporation when formed. American Silk Works v. Salomon, 6 N. Y. Sup. (T. & C.) 352; S. C., 4 Hun, 135. Thus, corporations may acquire title to money paid upon subscriptions to capital stock before the corporation has a legal existence, and it has been held that they may be formed by means of contributions of property other than money. Boynton v. Hatch, 47 N. Y. (2 Sick.) 225.

§ 8. Of the stock generally. As it respects the stock of an unincorporated joint-stock company, it may be regarded as settled:

First, that any stockholder may transfer his interest in any way which would operate a transfer at common law, regardless of the rules of the company, and yet the transfer will be valid. See Alvord v. Smith, 5 Pick. 232; Fox v. Clifton, 6 Bing. 776; S. C., 9 id. 115.

Second, that the transferee in such case will neither be a partner by such irregular transfer, nor have any claim against the company to be a partner. Harper v. Raymond, 3 Bosw. (N. Y.) 29; S. C., 7 Abb. 142; Marquand v. New York Manuf. Co., 17 Johns. 525, 535; Bray v. Fromont, 6 Madd. 5; Moddewell v. Keever, 8 Watts & Serg. 63; Kingman v. Spurr, 7 Pick. 235. See Smith v. Virgin, 33 Me.

148.

Third, that this transferee might require an account and settlement, so far as to ascertain his rights and the value of his share, but would have no right to any particular thing in specie, nor to a division of the effects. See Putnam v. Wise, 1 Hill (N. Y.), 234; Kingman v. Spurr, 7 Pick. 235; Burnes v. Pennell, 2 H. L. Cas. 497.

Fourth, that if a stockholder transfer his share agreeably to all the rules of the company, the latter may, nevertheless, with or without reason, refuse to accept the transferee as a partner, and withhold his certificate. Pars. on Part. 546, 547. And see Nicoll v. Mumford, 4 Johns. Ch. 522; Tatam v. Williams, 3 Hare, 347.

Where an unincorporated joint-stock association is formed, and the members of it, by the articles of association, promise to pay the amount of stock by them severally subscribed, in calls to be made by trustees named in the articles, an action at law lies to enforce such promise, notwithstanding that both the plaintiffs and the defendants are members of the association, and consequently copartners. Townsend v. Goewey, 19 Wend. 424. See Crater v. Bininger, 45 N. Y. (6 Hand) 545.

Where the trustees of the stockholders in a private association suf- · fered shares in the stock to be transferred to a bona fide purchaser without notice, by a person not having authority to make the transfer, it was held that the loss, in a contest between such purchaser and the stockholders, ought to fall on the latter. Cohen v. Gwynn, 4 Md. Ch.

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9. Contracts, rights and liabilities under. By the articles of association of an incorporated company it was provided that the agents and trustees should have no authority to bind it by contract, unless containing a restriction that payment should be made solely out of the joint property of the association. The president, however, made an oral contract with the plaintiff for work to be done by him without any such restriction; and it was held that the contract was void, but that the company having had the benefit of the work, its members were liable to the plaintiff for it on a quantum meruit. Sullivan v. Campbell, 2 Hall (N. Y.), 271.

A part of the members of a voluntary association cannot bind the others without their consent before the act which it is claimed binds them is done, or they, with full knowledge of the facts, ratify and adopt it. There are cases in which the act done is so clearly in furtherance of the object for which the association was organized, that all will be presumptively bound by it; but when such is not the case, consent or ratification must be proved. Sizer v. Daniels, 66 Barb. 426. Where the president and other members of an incorporated company purchased and paid for property for the company, without authority, a ratification by managers of the company, who had no authority to borrow money or increase the capital, was held to be insufficient to bind the members. Crum's Appeal, 66 Penn. St. 474.

But evidence of the custom of an unincorporated union store association, of its established and uniform mode of doing business, is held to be admissible to show acquiescence in, or consent to, a departure from its by-laws. And the directors of such an association will not be held liable for its losses because they neglected to perform some of the duties imposed by the by-laws, when such duties were principally transferred by the association to an agent, and the members knew of and acquiesced

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