Phipps v. Jones ( 1853 )

The opinion of the Court was delivered, by

Lowrie, J.

There ought to be no doubt about the right of unincorporated religious societies to sue on a contract made with them in their associate capacity and for the legitimate purposes of their association, even though there be no persons named or described in the contract as trustees or committee-men on behalf of the society. Such associations have always, and especially since the Act of 1781, been recognised as having an associate and quasi corporate existence in law, with power to hold land and build appropriate houses, and of course with power to acquire rights by contract, and to vindicate them. And if the English common law forms are insufficient for such cases, we admit the infusion into our law of the plain equity principle that allows a committee of voluntary societies to sue and be sued as representatives of the whole: 1 Bro. C. C. 101; 13 Ves. 544; Story’s Eq. Pl. § 116. There is, therefore, no difficulty about sustaining this action, if it has a contract to rest upon. In the case of Chambers v. Calhoun, 6 Harris 13, the congregation had been already formed, and the contract of subscription was for the purpose of erecting a new church, and it contained a promise to pay to the building committee, which had not then been appointed, and, when appointed, the promissor was one of them; yet the action against him in the name of his fellows, on behalf of the congregation, was sustained.

In the present case the association was- not finally formed, nor the erection of a house concluded on, until after the death of Ellis Phipps, one of the subscribers; and these facts raise the question, was there a complete and binding contract at the time of the death of Ellis Phipps ? If there was not, his administrators are not bound by it, and they would have no right to make it complete. They are bound to perform his contracts, not to complete his proposals.

This, subscription .paper refers to the general desire to have a house of worship, and declares that “in order to ascertain the amount of means that could be depended upon for this purpose,” the subscription is made, with the understanding that, when enough is thought to have been subscribed, a meeting of the contributors should be called “ for the purpose of choosing a building committee, and making such other arrangements as may be agreed upon.”

Here was no association, when the subscription was commenced, to whom a promise could he made. The paper was itself the first step towards the formation of an association, and the means of ascertaining its feasibility. It sets out as an experiment, and we cannot say that there was a complete contract by the first, or second, or twentieth, or even by the last subscriber, unless we can say that there was an association formed by them that could claim its performance.

There can be no contract without correlative parties, and it is generally essential that there be something more than a moral duty as the bond of the relation and basis of the promise. Where the undertaking is entirely one-sided, there .is no right of enforcement. There can be no relation without correlation. An engagement to subscribe for the benefit of an association is necessarily a mere proposal, and therefore revocable, until the association is formed. It is a promise of each for the benefit of the associate whole, and remains unattached and incomplete until the association is complete. Until then there is no one tojaccept the proposal, and, in this case, it was withdrawn by thejLeafrh of the subscriber before its acceptance. After his death Tais administrators could not and ought not to regard the proposal as open to acceptance. If, however, the association had been formed, and a contract for a lot or for a building entered into, on the faith of such subscription, in the lifetime of the subscriber, and with his express or implied consent, he, and of course his representatives, would have been bound to pay the subscription.

As these views entirely disallow the cause of action, it is unnecessary to consider the other points of law raised on the trial.

Judgment reversed.