Whitcomb v. Smart , 38 Me. 264 ( 1854 )

Appleton, J.

— The defendants borrowed one hundred dollars of the funds of a voluntary association of Odd Pellows, of which they.as well as the plaintiff were members, and gave therefor a memorandum of the following tenor: — -

“Searsport, Oct. 14, 1847.

“ §100. Por value received, we promise to pay Ebenezer Whitcomb, P. S. of Adelphian Lodge No. 42, one hundred dollars in fifty-seven days from date, unless sooner called for. “Albert Smart,

“Reuben S. Smart,

“ James Pield, jr.”

The plaintiff has ceased to be Permanent Secretary, but the suit is brought in his name, with his consent, and by the authority of the association interested in the funds sought to be recovered.

The words “Permanent Secretary of Adelphian Lodge No. 42,” maybe considered as merely descriptive of the person, and constitute no objection to the maintenance of the suit in the name of the present plaintiff, Buffum v. Chadwick, 8 Mass. 103; Clapp v. Day, 2 Greenl. 305.

It is not material, that the plaintiff has ceased to be Permanent Secretary. It is not necessary that a party should have an interest in the demand, if the suit is commenced in his name, with his consent, and by the authority of those interested. Bradford v. Bucknam, 3 Fairf. 15; Bragg v. Greenleaf, 14 Maine, 395. Where a bill of exchange was indorsed to S. S. E., Cashier, it was held that he might maintain an action upon the bill in his own name, notwithstanding he might be obliged to account for the proceeds to the bank of which he was cashier. Fairfield v. Adams, 16 Pick. 381.

It is insisted, as the plaintiff and defendants are both-members of the association, that no suit can be maintained by one member against another to recover funds, in which, when paid, they will have a common interest, and that the only remedy for those interested, is by bill in equity. Suck is undoubtedly the case where one of the parties on record is both co-plaintiff and co-defendant. The rule,, however, does not apply to a case like the present.

It has been settled by a series of cases, that joint stock companies may, as between themselves, agree on a particular person or on several persons as the party in whose name or names actions may be brought. Cross v. Jackson, 5 Hill, 479. Though they may inter sese be partners, yet they may agree that some one as trustee may in his own name enforce any contract made with him for the common benefit. Townsend v. Gowey, 19 Wend. 427. “We think,” remarks Best, C. J., in Radenhurst v. Bates, 3 Bing. 57, “that the members of a firm cannot by agreement give an authority to any one of them to bring an action in his name against persons' not members of the firm; but when several parties create by agreement penalties to be paid by one to the others, we see no objection to their empowering one to sue for the others. Such an agreement is in effect an undertaking not io object on account of all, who ought otherwise to have been joined in the action, not being joined.” So it was held in Phelps v. Lyle, 10 Ad. & Ell. 113, that “the company may authorize certain persons to act for them or to sue alone upon contracts, expressly entered into with them.” And this too, when the parties thus contracting were members of the company. The same principles are involved in the decision of Clapp v. Day, 2 Greenl. 305.

The contract in this case was made by the defendants with a. member of the joint association, and for a valuable consideration. The association have approved the loan and sanctioned the contract as made with the plaintiff,.and have authorized this suit to enforce its performance. All that remains for the defendants, is to perform the contract into which they have entered. When that shall have been clone, ample remedies exist for the protection of their interest in the common fund. No defence whatever is made, and a default must be entered. Defendant defaulted.

Shepley, C. J., and Tenney, Howard and Hathaway, J. J., concurred.