
    John Devoss et al. v. W. H. Gray et al.
    The deacons of an unincorporated religious society, who are ex officio agents for the management and control of its property and effects, can not bo held personally liable on a contract made by other agents of the society, unless it be shown that the former participated in the appointment of the latter, or in some way ratified such contract.
    In order to hold a 'member of such society responsible for its debts, it must be shown that such member, in some way, sanctioned or acquiesced in their creation.-
    
      Such society can not, hy its polity or its rules and regulations, invest or transfer the title to property or impose personal obligations upon its-members or officers, in a mode unauthorized hy the general laws of thestato.
    Ii the charter or the powers and franchises granted hy a foreign state to a corporation, whether located in this state or elsewhere, become the foundation of an action in this state, they must be specially pleaded; and a pleading for that purpose which does not disclose the-state by which, nor the terms in which, they were granted, is had on demurrer.
    The statute of January 3, 1825 (S. & O. 305), entitled “an act securing to-religious societies a perpetuity of title to lands,’’ etc., is applicable only to cases where lands and tenements are conveyed to some person or persons, as trustee or trustees, for the use, etc.
    If the plaintiff's petition be adjudged insufficient upon demurrer, and no leave to amend he asked for, it is not error to proceed to final judgment against the plaintiff, without granting leave to amend.
    Error to the District Court of Highland, county.
    The original action was brought in the Court of Common-Pleas of Highland county, by the defendants in error, against the plaintiffs in error, to recover a balance for work and labor performed in the building of a church edifice.
    The defendants below demurred to the petition, upon, the grounds that the facts stated therein were not sufficient to constitute a cause of action, and that there was a defect' of parties defendant.
    On the hearing of the issue thus joined, the common pleas sustained the demurrer and rendered judgment for costs against the plaintiffs below.
    Upon petition in error, the District Court for said county reversed the judgment of the Common Pleas, and remanded the cause, with directions that said demurrer be overruled..
    This action is prosecuted to reverse said judgment of the District Court. The main questions involved are those which were raised by the demurrer to the original petition.
    The following is a copy of that petition :
    
      u"William Ii. Gray and James M. Murray, plaintiffs,, against John Devoss, Robert Adams, and Robert S. Douglass, deacons and trustees of the Old School Presbyterian Church of Greenfield, Highland county, Ohio.
    “ The said plaintiffs say, that there is justly duo to them from the said defendants, as trustees of the Old School Presbyterian Church of Greenfield, Highland county, Ohio, the sum of twenty-eight hundred and thirty-two dollars and eighty cents, with interest thereon from the 1st clay of May, 1858. Eor that a long time prior to the 23d day of May, 1854, the said Old School Presbyterian Church had used and occupied a piece of ground, containing about one-half an acre of land, in and adjoining said town of Greenfield, and had a church-house thereon for many years, which said church-house and ground (said church not being incorporated) had been, for many years prior to said 23d day of May, 1854, held by said church, by the deacons thereof, who are, by the polity 'of said church, trustees of its property and effects, and have the management and control thereof. And on the said 23d day' of May, 1854, the said church, still holding said lot of ground by and through its then deacons, the defendants aforesaid, and one John Murray, since deceased (whose place has not been filled by said church) and trustees as aforesaid, and having determined to remove said old church-house and build a new one on said lot of ground, and having for that purpose appointed John G. Hays, Milton Dunlap, and A. B. Wilson a building committee, the said plaintiffs and a majority of said building committee, to wit, A. B. Wilson and Milton Dunlap, on said 23d day of May, 1854, contracted in writing as follows, to wit: Memorandum of an agreement made this 23d day of May, 185Í, between William H. Gray and James M. Murray, of the first part, and John G. Hays, Milton Dunlap, and A. B. Wilson, of the second part, witnesseth that the first party covenant and agree with the second party, who are a committee appointed to build a Presbyterian meeting-house in Greenfield, to do and finish the carpenter work agreeable to a specification made by the first party and marked No. 1, letter B, to commence the work so as to finish window and door-frames, lintels, joists, etc., as the masons may need or require, and the said first party agree to prepare and put the roof on said house as soon as possible after the masons have finished the wall. In consideration of the performance of the first party, the second party agree to pay the said first party, for the performance of their obligation, the sum of three thousand dollars, to be paid as follows, to wit: $500 by the 15th day of June next, when the roof is put on said house, and other payments to be made as the work progresses. It is the mutual agreement of the parties, that should the building committee at any time be hampered for funds after the roof is on, and windows glazed, should said building committee require, the first party shall stop work. For the performance we do each bind ourselves to the others. "Witness our hands the date first written. Signed : William H. Gray, James M. Murray, A. B. Wilson, Milton Dunlap.”
    The said plaintiffs further say that a copy of said contract in writing, with the specifications therein referred to, furnished by said plaintiffs to said building committee, is hereto attached.
    They further say that said building committee, or a majority of them, were duly authorized by the legally constituted authorities of said Old School Presbyterian Church, to contract in that behalf for the building of said meetinghouse, as the same was contracted for by said A. B. Wilson and Milton Dunlap, as members of said building committee, with said plaintiffs.
    The said plaintiffs further say, that in pursuance of said contract, they -commenced the work......
    The said plaintiffs further say that until the spring of 1857, the said A. B. Wilson, Milton Dunlap, and John G. Hays constituted said building committee, and for them and on their behalf the said Milton Dunlap, the acting member of said committee, took the oversight and direction of the work of said plaintiffs on said meeting-house.
    That in the spring of the year, 1857, the said Old School Presbyterian Church added to said building committee John W. Devoss, Thomas Murray, John Anderson, and Albert Adams, and for and on behalf of whom from that time until the completion of the work on said house in April, in 1858, the said John Devoss was the acting member of said committee in overseeing and directing said work.
    The plaintiffs further say, that from time to time, they informed said building committee that they were making a very expensive building — one costing greatly''more than the specifications in said written contract contemplated; and said building committee always replied that they intended to have a number-one house, and required the said plaintiffs to do the work according to their directions, and assured them that they should be paid all their work was worth.
    The plaintiffs further say that, in addition to the carpenter work......
    The said plaintiffs further say during the progress of the work, the said building committee, through the defendant, Robert L. Douglass, who was then and still is treasurer of said Old School Presbyterian Church, at G-reenfield aforesaid, paid them at different times sums of money, and there was still due to said plaintiffs from the said defendants, at the completion of their work on said meetinghouse, and when the same was accepted by said building committee as aforesaid, the sum of twenty-eight hundred and thirty-two dollars and eighty cents.
    The said plaintiffs further say that by the¿polity and constitution of said Old School Presbyterian Church (the same being incorporated), the deacons are financial and property agents and representatives of the church, and as such are the trustees thereof, and have and hold property, and are bound for the debts and obligations of said church properly contracted and authorized to be made by the church itself.
    The said plaintiffs further say, that having made said contract with said building committee, and performed the work aforesaid under their direction and supervision as aforesaid, they have, from the time of the completion of said work on said house, been trying to settle with said building committee, and obtain pay for said work, according to the terms of said written contract modified as aforesaid, but said committee have always refused to settle the matter in any manner whatever, but insist upon the written contract aforesaid, and contend that its terms required the work actually done on said house by the said plaintiffs, and that they have fully performed their part of said contract, and that said plaintiffs have been fully paid for said work, and that nothing more is due therefor. All of which said defendants, as deacons and trustees of said church, have had notice, and the members composing said church have had notice. Yet the said plaintiffs say that the said building committee have refused as aforesaid to make any provision whatever for the settlement and payment of the claim as aforesaid, and that the said defendants, as trustees of said church, have refused to settle, adjust, and pay the balance due them for their work on said meeting-house as aforesaid, or any part thereof, or to do anything whatever for the settlement and payment of the same.”
    The petition concludes with a prayer for judgment against the defendants, as deacons and trustees of the Old School Presbyterian Church of Greenfield. Otuo.
    
      James Ii. Thompson and William Dill, for plaintiffs in error:
    The one controlling question upon this record is this: Have the plaintiffs in the original action a right in law to have judgment against the defendants, in the capacity and in the character in which the plaintiffs claim their judgment ?
    As the Greenfield church was not incorporated, the defendants, if liable at all, must be liable individually, and the rules of law regulating the responsibility of individuals upon contracts, express or implied, must govern in this case.
    
      The statutes in force in Ohio, regulating religious societies, relate only to such as are incorporated. The Greenfield society was unincorporated, and the petition did not aver such a state of fact as made the defendants individually liable.
    The deacons were not trustees, and could make no contract that would put the church property in danger of execution.
    A court is not bound, sua sponte, to grant leave to amend a pleading adjudged bad upon demurrer. A party desiring to amend in such ease must ask leave.
    
      N. Barrere, for defendants in error :
    The action was rightly brought under the act of January 3, 1825. The trustees could not create debts against the society without its cousent, but said act implies that they may do all acts for the protection, improvement, and preservation of the church property under their control as trustees. In this case, the society itself ordered the building and appointed a building committee. This, however, .did not alter the relation of the deacons as trustees of said property, which is distinctly averred in the petition.
    It is said that suit ought to have been brought against all the members of the society. Such a proceeding would afford no remedy; a large number of the members are minors or married women: moreover, the membership has been and is continually changing.
    In regard to the manner in which said church property was held and the kind of title by which they held it, I refer the court to the case of Price v. The M. E. Church, 4 Ohio, 515, and also the case of The M. E. Church v. Wood, 5 Ohio, 283.
    The Court of Common Pleas, upon sustaining the demurrer, ought to have entered leave to the plaintiffs to amend.
    I suppose the true rule to be this, that where the facts set out in the petition make a meritorious cause of action, and a demurrer is sustained because all the proper parties are not before tbe court, or that there is some other defect in the petition that might or could be amended, in such a case the court, in sustaining a demurrer, ought to give leave to amend, and that it is error if it does not do so. As bearing on this proposition, I refer the court to the case of Kemper v. The Trustees of Lane Seminary, 17 Ohio, 293; McGatrick v. Mason, 4 Ohio St. 566; Irwin v. Bank of Bellefontaine, 6 Ohio St. 81; Spice v. Steinruck, 14 Ohio St. 213.
    
      B. A. Harrison, also for defendants in error:
    If the defendants below, in their capacity of trustees of the property of the Presbyterian Church at Greenfield, stood in the relation of principals to the “ building committee ” named in the petition, it must be conceded, on all hands, that they are liable, as such trustees, for the debt incurred in the construction, by the plaintiffs below, of the church edifice on the chürch lot mentioned in the petition.
    Now, do not the facts stated in the petition show that the defendants below did occupy the relation of principals toward the “building committee?” Mr. Harrison then quoted largely from the petition.
    The facts, then, stand admitted of record, at least for the purposes of this case, that the church at Greenfield authorized the construction of the church edifice constructed by the plaintiffs below, and that the defendants below have and hold the property and effects, and are bound for the debts and obligations, of the church at Greenfield. Therefore, the debt thereby incurred is one of the debts for which the defendants below are liable.
    Although the written'and verbal contracts, in pursuance of which the church edifice was erected, did not expressly disclose the principal of the building committee, the trustees, if in fact their principal, were liable to be sued by the plaintiffs for its erection.
    The doctrine maintained by the more recent authorities, on this subject, is, that if the agent possesses due authority to make a written contract, not under seal, and he makes it in bis own name, whether he describes himself to be an agent or not, or whether the principal be known or unknown, he,the agent, will be liable tobe sued,and be entitled to sue thereon, in all eases, unless, from the attendant circumstances, it is clearly manifested that an exclusive credit is given to the agent, and it is intended by both parties that no resort shall in any event be had by or against the principal or upon it. Story on Agency, sec. 160 a, and authorities cited in notes; also, Burls v. Smith, 7 Bing. 705.
    The facts set forth in the petition of the plaintiffs below do not show — surely no one can maintain that they do clearly show — that an exclusive credit was given to the building committee.
    It may be said that the “ building committee” were not appointed by the trustees; that they were appointed by the society; and, therefore, that they were not the agents of the trustees. But is that the proper test by which to determine who were their principals ? I submit that the true test is found by ascertaining who are primarily liable to the builders for erecting the church edifice. The constitution and polity of the church, to whose jurisidietion the society and deacons, in the record mentioned, are subject, fixes the primary liability for such debts on thg deacons in their official character, and makes the property and effects held by them in trust applicable to the payment of such debts. The trustees are the debtor; and they hold the title to the property which the creditors have the right in law to subject to the payment of their debt. The trustees seem to occupy the same relation to the society by whom they are elected, as well as to the creditors of such society, as the commissioners of a county occupy toward the county and the creditors of such county. It is true, county commissioners are, for certain purposes, a quasi corporation. But are not the'defendants below, for certain purposes, a quasi corporation, under and by virtue ot‘ the act of January 3, 1825 ? S. & C. 305. This act, I think, embraces trustees of unincorporated religious societies. It invests such trustees with several attributes of corporate bodies, viz: perpetual succession, the power to defend and prosecute suits at law and in equity, and the power, perpetually, to do all other acts for the protection, improvement, and preservation of the property, the title to which may be vested in them. The statute, per se, operates to give legal corporate existence to the trustees named in it. The allegations of the petition bring the defendants below under the operation of the statute. The defendants below were sued in their corporate capacity for a debt incurred in the “ improvement ” of the property held in trust by them, in perpetual succession.
   McIlvaine, J.

The original petition, in the Court of Common Pleas, prays for a judgment against the defendants, as deacons and trustees of the Old School Presbyterian Church of Greenfield, Ohio, an unincorporated religious society, for work and labor performed in the erection of a church edifice.

It is not claimed in the petition that there was such direct contract relation between the plaintiffs and defendants as would render the latter liable for the work performed by the former. Indeed, it clearly appears that the written contract, under which the work was performed, was entered into by and between the plaiutifls and a building committee composed of persons other than the defendants. The contract is set forth in the petition, and by its terms the members of the committee undertook the performance of their own engagements. Por the breach of this contract on the part of the committee, suit is brought, not against the ostensible contracting parties, but against the defendants, deacons and trustees of the church, who, as far as the contract itself shows, were strangers to it.

It is claimed, however, that the averments in the petition show that the defendants occupied the relation of principals to the building committee, and are, therefore, liable for' the contract of their agents.

The written contract shows that the committee acted in a representative capacity, but it does not disclose the names of the persons represented. And although the members of the committee personally bound themselves for the performance of their engagements, it is conceded that the plaintiffs may pursue the principals, if discovered, for the breach of the contract on the part of their agents.

The main question, therefore, raised by the demurrer is, whether the averments in the petition disclose the principals for whom the committee acted; or, in other words, whether the facts in. the petition (well pleaded) show that the defendants were such principals ?

As we understand the petition, the averment is, that the Old School Presbyterian Church of Greenfield, Ohio, appointed the committee, and authorized it to act in the premises. The particular mode in which it was appointed is not stated. But the plain inference is that the appointment was made by the members of the church, or, at least, by some portion of the members. If the averment were that the appointment was made by or through the deacons, their liability would be fixed, but such is not the allegation. And we are at a loss to know how it appears that the deacons were principals to the committee, unless they were members of the church, and, as such, participated in the appointment, or in some way sanctioned the action of the church or ratified the action of the committee. But there is no averment that the deacons were members of the church, or that they participated in or sanctioned the appointment, or in any way ratified the contract which the committee made. If we were to assume that the defendants were members, because it is alleged that they were the deacons of the church, still their liability as principals would not follow, because a member of an unincorporated religious society can not be held personally responsible for the debts of the society, unless it be shown that he in some way sanctioned or acquiesced in their creation. Nor is the allegation that defendant Douglass afterward, as treasurer of said church, paid to plaintiffs certain sums of money on account of said work, sufficient to show a ratification of said contract on his part.

It is claimed, however, that the defendants are liable because of their official relation to the church and its property.

It is alleged in the petition that by the.polity of said church the deacons are trustees of its property and effects, and have the management and control thereof.

That by the polity of such church its deacons may be constituted its agents for the management of its property, is undoubtedly true; and we construe the allegation that the deacons are the “trustees of its property and effects” to mean nothing more than that they are, ex officio, its general 'agents. Any other construction would show a vain effort to establish the law by averment, or to hold that the polity of such church was paramount to the law of the land. Property titles can not be transferred, nor personal or proprietary obligations imposed by such polity.

If, then, these defendants were only the agents of the society for the management and control of its property and effects, they do not, as matter of law, stand in the relation of principals to other agents appointed by the society to perform some particular duty in respect to its property, nor are they liable for any debt incurred for its improvement, except such as may have been made at their request, either express or implied.

Again, it is alleged “that by the polity and constitution of said Old School Presbyterian Church (the same being incorporated), the deacons are the financial and property agents and representatives of the church, and have and hold the property, and are bound for all the debts and obligations of said church properly contracted and authorized to be made by the church itself.”

It must be observed that the incorporated church here referred to is not the unincorporated church of Q-reenfield. No doubt, the general assembly of the Presbyterian Church of the United States is here intended; but we are at a loss to know whether the deacons referred to are the deacons of the incorporated or the unincorporated church. If the former, then the averment has nothing whatever to do with this case; but if the latter, it does not change the legal effect of the pleading, for the following reasons:

1. The corporation (if there be one) is the creature of a foreigu state, and the right to enforce its polity, as a general rule, is limited to and within the territorial jurisdiction of the state that created it. Our courts will not even take judicial notice of its existence. If, by comity or otherwise, its powers or franchises, or any right claimed under them, become the foundation of an action in this state, they must be specially pleaded; and a pleading for that purpose, which does not disclose the name of the state by which, nor the terms in which, they were granted, must be held bad on demurrer.

2. But suppose there was no objection to the manner or substance of pleading this charter. As a rule of property or of personal obligation, it is of no force in this state. As matter of law, it was wholly inoperative to confer upon the deacons of the church at Greenfield the trust alleged in the petition, or to bind them for all the debts of the church. Such obligation, if it exist, must rest upon matter of contract, an express or implied assent on the part of the deacons to stand so bound. And the effect, as matter of evidence to prove such contract, which would be given to the circumstance of accepting such office with full knowledge of the terms of such charter and of the obligation imposed by such polity, we need not now consider, as no such case is made in the petition.

It is also claimed that the defendants are liable in this action, under the provisions of act of January 3, 1825 (S. & C. 805), entitled “an act securing to religious societies a perpetuity of title to lands and tenements conveyed in trust for meeting-houses, burying grounds, or residences for preachers.”

We deem it unnecessary to inquire as to the extent of obligation imposed upon trustees under this statute, as the case made in the petition does not bring the defendants within its provisions. This statute, by its terms, embraces those cases only where lands and tenements have been conveyed, by devise, purchase, or otherwise, to some person or persons as trustee or trustees for the use of, etc. It does not appear that the property mentioned in this case had been so conveyed, and we are not authorized to presume such conveyance. Nor can we extend, by construction, the operation of this statute so as to embrace such a state.of facts as are presented in the petition.

It is also claimed that the judgment of reversal should not be disturbed for the reason that the Court of Common Pleas erred in rendering judgment for costs against the plaintiffs, after the demurrer to the petition was adjudged well taken, without granting leave to amend the petition. No leave was asked. If the plaintiff’s petition be adjudged insufficient upon demurrer, it is not error to proceed to final judgment against him. Leave to amend need not be granted in such case unless the party desiring it asks for such leave.

Judgment of District Court reversed, and judgment of Common Pleas affirmed.  