Kuhl v. Meyer

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiffs in their petition state, in substance, that that they are the sole remaining members of a voluntary unincorporated benevolent association. That the defendant was the duly elected treasurer of said association, and as such received eighty-two dollars in cash, and a negotiable promissory note for one hundred and fifty dollars, property of such association, which at the expiration of his term of office, he converted to his own use, wherefore they pray judgment.

The defendant demurred to this petition as stating no cause of action. The court sustained the demurrer and, upon plaintiff declining to plead further, rendered judgment in favor of defendant. Hence this appeal.

The demurrer seems to have been sustained on the ground, that plaintiffs and defendant, under the facts stated were partners, and hence the former could not maintain against the latter an action at law for conversion of part of the partnership funds.

This was error. The petition nowhere states that the defendant ever was a member of this association, or xeceived the property as such. It expressly states that the plaintiffs are the sole members of the association. It results, therefore, that even if the view which the court apparently took of the law governing these voluntary associations had been correct, it erroneously applied the law to the facts stated in the petition. This necessitates a reversal of the judgment.

In view of further proceedings in the cause the following observations are pertinent. If the laws of this association provide for trustees in whom its property-vests, or who are to enforce obligations incurred to the society, such persons may sue as trustees of an express trust under section 3463 of the Eevised Statutes. In such event the contract in contemplation of law may be considered to be made with them for the benefit of all the members, and other members of the association are not necessarily parties plaintiff. Miles v. Davis, 19 Mo. 414, if the facts warrant it, the petition should be framed on that theory.

It appears by the allegations of the present petition even, that the note, which the defendant is charged to have converted, was payable to the board of trustees of the association. If so, they became trustees of an express trust, and could sue anyone for its conversion.

While members of these voluntary associations, in many instances, may become individually responsible to outside persons, to the full extent of obligations incurred by the association, it has never been held that they are liable to each other beyond the limits fixed by their own agreement, nor that their responsibility within such limits is incapable of enforcement, without the taking of a complete account and final winding up of the association.

Eeversed and remanded.

All the judges concur.