
    (113 So. 774)
    No. 26100.
    EXECUTIVE COMMITTEE OF FRENCH OPERA TRADES BALL v. TARRANT.
    May 23, 1927.
    Rehearing Denied July 11,1927.
    
      (Syllabus by Editorial Staff.)
    
    Associations <&wkey;20(2) — Executive committee of ball could maintain suit to recover proceeds of bail from treasurer, who failed to de- ■ posit proceeds as agreed.
    Executive committee and administrative head of ball given to raise money to rebuild opera house could maintain suit to recover proceeds of ball from defendant, who failed to deposit proceeds in special account against which checks were to be paid only when signed by executive chairman and by defendant, as treasurer, as previously agreed.
    Appeal from Civil District Court, Parish of Orleans; Sam A. Le Blanc, Judge.
    Suit by the Executive Committee of the French Qpera Trades Ball against Robert Hayne Tarrant. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    . Arthur B. Leopold and Wm. Winans Wall, both of New Orleans, for appellant.
    Monroe & Lemann, of New Orleans, for appellees.
   THOMPSON, J.

The first question to be considered in this case is the alleged want of legal right and competency of the plaintiffs individually, or collectively, to institute this suit and stand in judgment.

If that question can be solved in plaintiffs’ favor, then the only remaining question is whether the verdict of the jury against the defendant should be sustained, increased, or reduced in amount.

The object of the suit is to compel the defendant to render an account and to pay over certain funds or the profits received by him from a ball given in the city of New Orleans on February 24, 1922, known as the French Opera Trades Ball, for the purpose of raising moneys to be used for the rebuilding of the French opera house which was destroyed by fire some years ago.

The plaintiffs are seven of the leading ladies of this city who have been very active in all civic, social, artistic, and other like movements for the benefit and advancement of the city.

They sue in their individual names and as constituting the executive committee of the French Opera Trades Ball.

The defendant in his answer admits that he has in his possession a certain amount of funds the proceeds from the said ball, and he admits that the said funds do not belong to him.

He specially denies the legal right of the plaintiffs, and their capacity, to sue to compel him to account for the said funds or to pay over to them the money in his possession.

. The case was tried by a jury prayed for by the defendant and which rendered a verdict against him for $4,629.98.'

The plaintiffs have answered the appeal and pray that the judgment be increased to the sum of $5,592.18.

Some time in the summer of 1921 the defendant, a resident of this city, and who.styles himself as the leading and progressive impresario of the city, invited a number of the leading and enterprising ladies of the city to a luncheon given by him at Antoines restaurant. At the conclusion of the luncheon the subject of rebuilding the old opera house was brought up and discussed, but no definite plans at that time were formulated. Subsequent meetings were had at which many of the ladies of the city were present.

It was finally agreed that a ball should be given, to be known as the French Opera Trades Ball. The petitioners herein were selected as the executive committee and administrative head of the enterprise. Mrs. George B. Penrose was made executive chairman, and the defendant was made secretary treasurer.

After this committee was agreed upon the question of the defendant’s commission became a subject of much 'discussion. He informed tbe committee that he expected to retain for bis services one-fourth of tbe gross receipts of tbe ball out of wbicb be would pay all expenses.

Some of the members of the committee protested arid threatened to resign and bave nothing further to do with tbe matter. Tbe defendant finally agreed that be would give bis services gratis.

It was agreed between tbe committee and tbe defendant that all receipts from tbe ball should be deposited in a special account in tbe Canal-Commercial Trust & Savings Bank, under tbe name of “Rebuilding Fund French Opera ' House,” against wbicb checks were authorized to be paid only when signed by Mrs. "Penrose, executive chairman, and tbe defendant, as treasurer.

Tbe trades ball was given at tbe Athenaeum on tbe date previously stated, and as asserted by tbe plaintiffs was a complete social and financial success. Tbe defendant, however, claims that tbe ball was a complete social and financial failure.

But be that as it may, tbe defendant admits that tbe sums collected by him or wbicb came into his possession from subscriptions from merchants, donations, price of boxes, and sale ..of tickets amounted to $7,616.75. Instead of depositing tbe said funds in the special account as be bad agreed with tbe committee should be done, he made tbe deposits in bis own name and drew against it at bis own will and pleasure and without consulting Mrs. Penrose, chairman, or any member of tbe committee.

Tbe plaintiffs repeatedly called upon tbe defendant to furnish a statement of tbe amounts he bad received and of the bills for expenses be claimed to bave paid, but be declined to furnish such a statement.

It was only after suit was threatened against him that be prepared and caused to be published what be styled a provisional statement, wbicb showed in lump sums, receipts amounting to $7,616.75 and disbursements of $4,562.10, leaving a balance in his bands of $2,304.65.

On the trial of tbe case after being pressed to state where be kept this money, after much evasion, be stated that tbe money was in a safe in bis bouse. Thereupon a judicial sequestration was issued; but the sheriff failed to get tbe money or to find tbe safe referred to.

Tbe defendant admitted on tbe witness stand that be left the city to avoid service of the sequestration and that be sent tbe money out of tbe state and beyond tbe process of tbe court.

We bave not undertaken to state tbe facts in detail, but tbe foregoing contains a fair statement of tbe salient and important facts disclosed by tbe pleadings and tbe evidence.

Tbe defendant claims that it was bis ball; that be bad full charge of tbe affairs and administration of tbe ball; that be appointed tbe chairman of all committees, who were to report to him; that be fixed tbe prices of seats and boxes and tbe minimum for tbe King and Queen; that all receipts were to be under bis control and disposition, with no obligation to account to any one.

That tbe plaintiffs constituted a self-styled committee, an honorary title given to tbe ladies as a mere matter of form, without any authority or executive control over the ball or tbe funds derived therefrom whatever.

It is asking too much of tbe court to believe tbe contention of tbe defendant in this respect, in the light of tbe evidence in the record and bis conduct as disclosed by tbe record.

It is incredible that tbe ladies who gave their time and service in making tbe ball a success would bave left tbe exclusive control and management to the defendant with tbe right to make such disposition of tbe funds derived from tbe ball as be saw fit.

If tbe ladies, without whose active management the ball would never have been held, had had any reason to suspect that the defendant was going to assume the attitude which he now takes, they most assuredly would never have consented to head or even to take part in the enterprise in- connection with the defendant.

The exception of the want of interest and legal authority to bring this suit is based upon the theory that there is no such legal entity as that of executive committee of the French Opera Trades Ball and that there were a number of committees besides the plaintiff committee; that there were about 200 ladies who took part in the ball; and that the plaintiffs could not sue without making all who took part in the ball in any capacity parties to the suit.

It is well settled, and indeed our Code (article 446) provides, that corporations unauthorized by law enjoy no public character and cannot appear in a court of justice, but in the individual name of all the members who compose it and not as a political body.

In the instant case there is no pretense that the executive committee composed of the plaintiffs is a legal entity or body politic in law, nor'does it sue as such. The petition alleges that the plaintiffs compose the executive committee, and the evidence shows that they were agreed on and appointed as such executive committee.

And the defendant himself does not deny this fact, but merely claims that the committee was appointed by him and was subordinate in authority to him.

There is nothing to show that any other persons than the plaintiffs were members of this particular committee. There were many other ladies who took an active part in the giving of the ball and raising funds for the rebuilding of the opera house, and they are, no doubt, entitled to equal credit with the plaintiffs, but it cannot be said that all who took part in the enterprise were members of the executive committee in charge of the affair and should have joined in the suit.

If the executive committee is to be regarded as an unincorporated association, then such association has the right to sue and stand in judgment provided the individuals who compose the association join in the suit. Such is undoubtedly the law and is sustained by the authorities cited by defendant’s counsel.

It is provided in the Code, cited, supra, that unincorporated associations may acquire and possess estates and have common interest as well as other private societies, from which it follows that the individuals who compose such societies or unincorporated associations can sue to protect their interest or the common interest of all.

5 Corpus Juris, p. 1368, lays down the rule that an action may be brought by one or more of the members of an unincorporated association for the benefit of all, where the members have a common or general interest in the subject-matter of the suit, or where the members are numerous and it is impracticable to bring them all before the court, since those who sue may fairly be presumed to represent the rights and interest of the whole.

This principle was recognized in Beatty and Ritchie v. Kurtz, 2 Pet. 585, 7 L. Ed. 528, wherein the Supreme Court of the Uhited States said:

“The only difficulty is whether the plaintiffs have shown in themselves a sufficient authority, since it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, we should incline to think that under all the circumstances it might be fairly presumed. But it is not necessary to decide the case on this point; because we think-it one of those cases in which certain persons belonging to a voluntary society, and having a common interest, may sue in behalf of themselves and others having the like interest as part of the same society for purposes common to all and beneficial to all.”

The plaintiffs in this suit unquestionably have an interest in common with all who took part in the raising of the funds which the defendant has essayed to treat as his own, in seeing that such funds are preserved from wrongful appropriation and spoliation and to be ultimately applied to the purposes for which such funds were contributed by the public.

The defendant agreed in advance on the purpose for which said baU was given and agreed that the fund so obtained should be deposited in a certain bank to the credit of such fund.

It comes with very bad grace, after he has come into possession of said fund, to endeav- or to shield himself behind a supposed legal technicality that no one- has the authority in law to force him to turn over the said fund, to be applied in the manner intended, and to which he consented.

Our ‘conclusion is' that the plaintiffs have an interest and standing in court to recover from the defendant the trust fund which he illegally and unjustly withholds from its proper application and intended dedication.

On the question of the amount for which defendant should be held to account, we have carefully examined the evidence and do not feel justified in increasing the amount. Nor do we think it should be reduced. The verdict of the jury appears to be sustained by the evidence.

For the reasons assigned, the judgment appealed from is affirmed.  