Danbury Cornet Band v. Bean ( 1874 )

Isaac W. Smith, J.

The plaintiffs having never been incorporated by the legislature, nor organized under ch. 138 of the Gen. Stats, relating to voluntary associations, are not a corporation entitled to sue by their corporate name. They must therefore be regarded as copartners, or joint owners, as to the property of the association.

The defendant’s withdrawal from the band in December, 1872, operated as a dissolution of the copartnership as between him and the remaining members. His subsequent expulsion by the remaining members can have no other legal effect. The partnership may therefore be regarded as having been dissolved by both parties, so far as Bean’s relation to the rest of the members is concerned.

If Bean by his withdrawal did not surrender his interest in the musical instruments belonging to the band, then it is clear that this action cannot be maintained by the remaining members against him.

It is well settled, that while the partnership concerns are unadjusted, there is at common law no implied promise by one partner to pay anything to the other on a partnership transaction ; and no action lies by either in such case, unless the transaction upon which the right of action is based has been settled between the parties, and a promise of payment made — Odiorne v. Woodman, 39 N. H. 541, and authorities cited ; and with regard to tenants in common of chattels, one tenant cannot maintain trover against his co-tenant for any act less than the destruction of his interest therein, or the entire exclusion of the co-tenant from the enjoyment of his right and interest therein. Carr v. Dodge, 40 N. H. 403.

The question, then, in this case is, Had Bean any right or interest in the musical instrument which he carried away with him after he left?

The second by-law of the association is as follows: “ If any member shall leave the band, he leaves all his interest in the baud.” The assent of the members of the band, including that of this defendant, was given to this and the other by-laws in writing, they having subscribed their names thereto. This is a valid agreement between the members, and binding upon them. The consideration upon which the promise of each is founded is the promise of the rest to do the same thing. It is like the case of a subscription paper where the several subscribers promise to contribute each a certain sum to an object which all are desirous to accomplish: the promise of each is considered as made in consideration of the promises of the others. George v. Harris, 4 N. H. 533; Bryant v. Goodnow, 5 Pick. 228. The members of this association had a common object to be attained, to wit, instruction in instrumental music, — lawful in itself and beneficial to themselves, and more readily accomplished by associating together, than separately. Upon the faith of this by-law, signed and agreed to by all, their instruments were purchased, and became the common property of the association. The retiring member cannot be said to forfeit his instrument, or his interest in all the instruments. It is rather the voluntary surrender or relinquishment of his interest in the instruments in pursuance of his written agreement, and in consideration of his retiring from the association.

It is contended, however, by the defendant, that he has not withdrawn permanently, but has only left until the band should settle his claim of $5.50, which he had presented and which the band had disallowed. But this position has the appearance of being a subterfuge. He was leader of the band, and chairman of the meeting at which it was voted not to pay his claim. He thereupon left his position as presiding officer, and withdrew from the meeting. Upon being interrogated by other members, he said lie had left, and should not meet with them until his claim was settled. As the band had already voted not to pay it, this was equivalent to saying that his action in leaving was final on his part. He took with him the instrument in suit, and has refused to meet with the members since. His language and prolonged absence, in one occupying the prominent position of leader, are capable of explanation upon no other ground than that his withdrawal was intended to be and has become permanent.

We do not attach any importance to the fact that the band voted to expel him subsequent to his leaving, so far as affecting his rights in any of the property of the association is concerned. The second by-law only applies to one who voluntarily leaves. If the withdrawal is occasioned by sickness or death, or is involuntary, it would seem to be reasonable to hold that the by-law would not in such case apply. But that question is not before the court.

By his voluntary withdrawal, then, Bean ceased to have any interest in the instruments belonging to the band, but the same became the property of the remaining members. There were then no partnership concerns to be adjusted between the parties, and he had no right to retain the cornet instrument. The demand and refusal to surrender the same are abundant evidence of a conversion by the defendant.

If the parties are regarded as tenants in common of the chattel, the evidence shows an entire exclusion by the defendant of his co-tenants from the enjoyment of their right and interest therein.

Judgment for the plaintiffs on the report.