Sivut kuvina
PDF
ePub

Where a subscription remains revocable up to the time of the subscriber's death (because not accepted, or not acted on, or because the list is not complete, or for other reasons), it is revoked by his death.359 But if the subscription has become irrevocable during the life-time of the subscriber, his death does not cancel it.360 So, the insanity of a subscriber to a fund, supervening after the making of the subscription, does not operate as a revocation of it where it could not have been revoked by his voluntary act.361.

It is a condition, implied if not expressed, in all such subscriptions that the funds raised shall be employed for the purpose and in the manner agreed upon between the subscribers and the beneficiary, and a breach of this condition will release any subscriber who has not already paid, or warrant the recovery back of subscriptions paid in. Thus, where a religious society raises a fund by subscription for a particular purpose, it cannot divert the fund to other purposes, and if it abandons the original purpose, the donors may reclaim their contributions.862 So, where one agrees to pay a certain percentage of the cost of a site for a church, the cost to be appraised and the title acquired in a manner prescribed in a provision for purchase in a lease under which the church then occupies the property, he has a right to repudiate his subscription if the appraisement and the arrangements for acquiring title are made in a manner other than that provided, though he waives this right if, as a member of the board of trustees of the church, he acquiesces in such modification of the provisions.368 But the fact that the treasurer of a church extended the time for

359 Grand Lodge v. Farnham, 70 Cal. 158, 11 Pac. 592; Pratt v. Trustees of Baptist Soc., 93 Ill. 475, 34 Am. Rep. 187; TwentyThird Street Baptist Church v. Cornwell, 117 N. Y. 601, 23 N. E. 177, 6 L. R. A. 807; Phipps v. Jones, 20 Pa. 260, 59 Am. Dec. 708.

360 Waters v. Union Trust Co., 129 Mich. 640, 89 N. W. 687; Albert Lea College v. Brown's Estate, 88 Minn. 524, 93 N. W. 672, 60 L. R. A. 870; In re Converse's Estate, 240 Pa. 458, 87 Atl. 849.

361 Kansas City School District v. Sheidley, 138 Mo. 672, 40 S. W. 656, 37 L. R. A. 406, 60 Am. St. Rep. 576.

362 First Church of Christ Scientist v. Schreck, 70 Misc. Rep. 645, 127 N. Y. Supp. 174.

363 First Universalist Church v. Pungs, 126 Mich. 670, 86 N. W. 235. See Holden v. Otisfield, 2 Greenl. (Me.) 394.

payment of one of the subscriptions to a fund for the building of the church, and took the subscriber's note therefor, which was paid, will not release the other subscribers.364 It is also a rule that if the project subscribed to is abandoned or indefinitely postponed, the subscriptions cease to be binding, and any one may withdraw his name.365 But this cannot be done merely because the enterprise is struggling unsuccessfully, if, nevertheless, an honest effort is being made to carry it out.3

366

§ 354. Contracts for Work or Hire of Services.-A contract by which one person enters the employment of another is subject to the ordinary rules governing the rescission of contracts, besides those special rules which are peculiar to the relation of master and servant. While such a contract remains executory, either party may withdraw from it, on giving notice to the other.367 But when a contract of hiring is for a definite period, as, a year, during such time neither party can lawfully rescind it without the consent of the other, unless for legally sufficient cause.368 But this contract, like any other, is rescindable when induced by fraud or false representations. Thus, there is an implied representation of fitness for the continuous performance of the stipulated service, and one who has hired a servant or other employé and discovers, before the term of employment begins, that he is a drunkard, may rescind the contract.369 And where a person, by the false representations of another as to his average monthly sales while in the service of a former employer, and as to the amount of salary he received, is induced to employ him on terms which

864 Wilson v. First Presbyterian Church, 56 Ga. 554.

365 Plunkett v. Methodist Episcopal Soc., 3 Cush. (Mass.) 561; Commercial Travelers' Home Ass'n v. McNamara, 95 App. Div. 1, 88 N. Y. Supp. 443; In re Baird's Estate, 13 Phila. (Pa.) 241; McCrimmin v. Cooper, 27 Tex. 113.

366 Trustees of Lincoln University v. Hepley, 28 Ill. App. 629. 867 Gaty v. Sack, 19 Mo. App. 470.

368 Horn v. Western Land Ass'n, 22 Minn. 233.

869 Nolan v. Thompson, 11 Daly (N. Y.) 314; Johnson v. Gorman, 30 Ga. 612. And see, supra, § 200. The rules and principles governing actions for deceit in the sale of property apply to actions for procuring personal services by fraud. Hunt v. Lewis, 87 Vt. 528, 90 Atl. 578.

But a

he would not otherwise have agreed to, he has the right to avoid the contract when he discovers the truth.870 statement by one seeking employment that his act in leaving his last place was entirely voluntary is not a false representation nor anything more than a mere expression of opinion, when no actual complaint has then been made against him by his former employer, though the latter afterwards tells the new employer that he was about to discharge the employé for cause, and the acquisition of such information will not justify the new employer in refusing to perform his contract.371

§ 355. Tenure of Office, Public and Private. The act by which one is appointed or elected as a director or other officer of a private corporation, and by which he accepts the office, bears some resemblance to a contract of employment, but is more in the nature of an express trust. Hence the rule that an officer in a private corporation cannot be compelled to serve as such against his will, but has the unqualified right to resign his office at any time at his own pleasure.372 And a statute providing that directors shall continue in office until their successors are elected or appointed and qualified does not prevent a director from resigning at any time, nor does a similar provision in the charter of the corporation.373 So also, civil officers of the United States (as distinguished from military and naval officers, as to whom there are special rules) and like officers of states and municipalities have the right to resign their offices at discretion.374 An unconditional resignation of a

870 Mexican Amole Soap Co. v. Clarke, 72 Ill. App. 655.

371 Remington v. Van Ingen, 6 Misc. Rep. 215, 26 N. Y. Supp. 878. 872 Fearing v. Glenn, 73 Fed. 116, 19 C. C. A. 388; Movius v. Lee (C. C.) 30 Fed. 298; Ehret v. George Ringler & Co., 70 Misc. Rep. 627, 129 N. Y. Supp. 546; Smith v. Danzig, 64 How. Prac. (N. Y.) 320; Chandler v. Hoag, 2 Hun (N. Y.) 613; Blake v. Wheeler, 18 Hun (N. Y.) 496; Cloutman v. Pike, 7 N. H. 209.

373 Briggs v. Spaulding, 141 U. S. 132, 11 Sup. Ct. 924, 35 L. Ed. 662; In re McNaughton's Will, 138 Wis. 179, 118 N. W. 997, 120 N. W. 288.

374 United States v. Wright, 1 McLean, 509, Fed. Cas. No. 16,775; State v. Dart, 57 Minn. 261, 59 N. W. 190; State v. Blakemore, 104 Mo. 340, 15 S. W. 960; State v. Bus, 135 Mo. 325, 36 S. W. 636, 33 L. R. A. 616.

public office, to take effect immediately, cannot be withdrawn, even though it has not been accepted, but a contingent or prospective resignation can be withdrawn at any time before acceptance.875 Thus, a county officer who has presented to the board of county commissioners his resignation of his office, to take effect on a designated future day, may withdraw it before that day arrives, notwithstanding the board may in the mean time have accepted it.376 A resignation of a public office procured by duress is voidable and may be repudiated, and a refusal immediately after the resignation to surrender the office is a sufficient repudiation.877

A corporation possesses the inherent power to ascertain and declare the forfeiture for cause of an office held under it, or to remove an officer for cause, but if the charter prescribes either the causes or conditions under which the power of removal may be exercised or the manner of its exercise, it must be followed in this respect.378 And the charter or by-laws of a corporation if not inconsistent in this respect with the statutes of the state, may authorize the stockholders at any time and at will to remove the directors from their office, or any of them. In some cases also this is provided by the local statute. But in the absence of such authority, a director duly elected is entitled to hold his office until the expiration of its term as fixed by the charter or by-laws, and cannot be voted out of office either by the stockholders or by the board of directors.379 But a mere voluntary unincorporated association, having nei

875 State v. Fowler, 160 Ala. 186, 48 South. 985, 135 Am. St. Rep. 91; State v. Huff, 172 Ind. 1, 87 N. E. 141, 139 Am. St. Rep. 355. 376 State v. Murphy, 30 Nev. 409, 97 Pac. 391, 720, 18 L. R. A. (N. S.) 1210. See Town of Nome v. Rice, 3 Alaska, 602.

877 State v. Ladeen, 104 Minn. 252, 116 N. W. 486, 16 L. R. A. (N. S.) 1058.

878 State v. Trustees of Vincennes University, 5 Ind. 77; Toledo Traction, Light & Power Co. v. Smith (D. C.) 205 Fed. 643.

879 Imperial Hydropathic Hotel Co. v. Hampson, L. R. 23 Ch. Div. 1; Powers v. Blue Grass B. & L. Ass'n (C. C.) 86 Fed. 705; Toledo Traction, Light & Power Co. v. Smith (D. C.) 205 Fed. 643; Nathan v. Tompkins, 82 Ala. 437, 2 South. 747; Hatch v. Johnson Loan & Trust Co. (C. C.) 79 Fed. 828; People v. Powell, 201 N. Y. 194, 94 N. E. 634.

ther charter, by-laws, nor rules, may remove its president or any other officer at any time at its mere pleasure and without cause assigned and heard, provided only that such action is taken at a meeting of the association duly called and held for the purpose."

380

Where it is provided either by the law of the state or the by-laws of the particular corporation that the officers and agents of the company shall hold office during the pleasure of the board of directors, or where the power of removing. such officers is given to a majority of the board in meeting, the power of removal may be exercised at discretion upon such officers as the president, secretary, treasurer, or manager. 381 And it is held that a general manager, appointed for the business of the company in another state, is such an agent, and not an ordinary employé, and he cannot enforce a contract for his employment for a definite term of years, but holds his position subject to discharge by the board of directors at any time.882 So, the fact that the secretary of a corporation is employed at an annual salary does not prevent the proper authority of the company from discharging him at any time, where the by-laws authorize such removal. And the same applies to the employment of an attorney for a term of years.384 But one employed by a corporation as a book-keeper for a definite period is not an officer or agent of the company, and therefore if he is removed by the directors without legal cause, the company will be liable for breach of the contract of employment.385

383

Public office is not in any sense a contract, and ordinarily the removal of a public officer is accomplished by the ex

380 Ostrom v. Greene, 161 N. Y. 353, 55 N. E. 919; Krause v. Sander, 66 Misc. Rep. 601, 122 N. Y. Supp. 54.

381 Darrah v. Wheeling Ice & Storage Co., 50 W. Va. 417, 40 S. E. 373; Griffith v. Sprowl, 45 Ind. App. 504, 91 N. E. 25; Cuppy v. Stollwerck Bros., 158 App. Div. 628, 143 N. Y. Supp. 967. See Fensterer v. Pressure Lighting Co., 85 Misc. Rep. 621, 149 N. Y. Supp. 49. 382 Wright v. Warren Bros. Co., 204 Fed. 231, 122 C. C. A. 503. 383 Douglass v. Merchants' Ins. Co., 118 N. Y. 484, 23 N. E. 806, 7 L. R. A. 822.

384 Llewellyn v. Aberdeen Brewing Co., 65 Wash. 319, 118 Pac. 30, Ann. Cas. 1913B, 667.

385 Munn v. Wellsburg Banking & Trust Co., 66 W. Va. 204, 66 S. E. 230, 135 Am. St. Rep. 1024.

« EdellinenJatka »