Bennett v. Lathrop

Supreme Court of Connecticut

Bennett v. Lathrop

42 A. 634, 71 Conn. 613, 1899 Conn. LEXIS 32

CourtSupreme Court of Connecticut

DecidedMarch 9, 1899

StatusPublished

Cited by16 cases

This text of 42 A. 634 (Bennett v. Lathrop) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bennett v. Lathrop, 42 A. 634, 71 Conn. 613, 1899 Conn. LEXIS 32 (Colo. 1899).

Pincite

Opinion

Hall, J.

The Lakeview Athletic Club consisted originally of five of the six defendants, who had associated themselves together under that name for the purpose of employing and managing a polo team for profit and pleasure.

The trial court has found that said members agreed to receive the defendant Heineman as a member, upon his own application, and to make Mm manager of the team; and that havmg been notified of said action he accepted the proposal and became a member, it being understood by all parties that he should participate in the profits and losses equally with the other members. Upon these facts the court was justified M holding that Hememan was a member of the association.

The indebtedness to the plaintiff’s several assignors having been incurred by the association in carrying on the business for which it was organized, and having been contracted by those m authority while Heineman was a member of the club, he, like the other members, became individually liable for those debts, though they did not hold themselves out to be partners or to be individually liable, and although there was no agreement between themselves that they should be partners or should become personally liable for the debts of the club, and although the players so employed gave credit to the associate name. Davison v. Holden, 55 Conn. 103.

The omission in the complaint of the averment required by statute, that the plaintiff was the actual and bona fide owner of the several choses in action, was a formal defect of pleading which could only have been taken advantage of by demurrer. Wall v. Toomey, 52 Conn. 35, 39; Trowbridge v. True, ibid. 190; Merwin v. Richardson, ibid. 223; Donaghue v. Gaffy, 53 id. 43.

If the assignment to plaintiff’s attorney had been of the original right of action, instead of the judgment, the plaintiff would still, from the purpose and nature of the assignment, have retained sufficient interest in it to enable him to maintain the suit. Saugatuck Bridge Co. v. Westport, 39 Conn. 337, 349. But the assignment to Mr. Fowler was, in fact, of the judgment rendered by the justice of the peace, and that judgment, in so far as it affected the defendant Heineman [617]*617having been vacated by the appeal to the Court of Court Pleas, Mr. Fowler had thereafter under the assignment no interest in any claim against Heineman.

The telegram sent by Heineman to Smith was properly received in evidence for the purpose for which it was offered. It tended to prove that Heineman, in employing players and acting as a manager of the polo team, was performing duties which were rather those of a member.of the association than of a mere player of the team.

We are unable to see how the defendant was injured by the failure of the court to consider the plaintiff’s motion to open the case for the presentation of further evidence.

There is no error.

In this opinion the other judges concurred.

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Hall, J.

The Lakeview Athletic Club consisted originally of five of the six defendants, who had associated themselves together under that name for the purpose of employing and managing a polo team for profit and pleasure.

The trial court has found that said members agreed to receive the defendant Heineman as a member, upon his own application, and to make Mm manager of the team; and that havmg been notified of said action he accepted the proposal and became a member, it being understood by all parties that he should participate in the profits and losses equally with the other members. Upon these facts the court was justified M holding that Hememan was a member of the association.

The indebtedness to the plaintiff’s several assignors having been incurred by the association in carrying on the business for which it was organized, and having been contracted by those m authority while Heineman was a member of the club, he, like the other members, became individually liable for those debts, though they did not hold themselves out to be partners or to be individually liable, and although there was no agreement between themselves that they should be partners or should become personally liable for the debts of the club, and although the players so employed gave credit to the associate name. Davison v. Holden, 55 Conn. 103.

The omission in the complaint of the averment required by statute, that the plaintiff was the actual and bona fide owner of the several choses in action, was a formal defect of pleading which could only have been taken advantage of by demurrer. Wall v. Toomey, 52 Conn. 35, 39; Trowbridge v. True, ibid. 190; Merwin v. Richardson, ibid. 223; Donaghue v. Gaffy, 53 id. 43.

If the assignment to plaintiff’s attorney had been of the original right of action, instead of the judgment, the plaintiff would still, from the purpose and nature of the assignment, have retained sufficient interest in it to enable him to maintain the suit. Saugatuck Bridge Co. v. Westport, 39 Conn. 337, 349. But the assignment to Mr. Fowler was, in fact, of the judgment rendered by the justice of the peace, and that judgment, in so far as it affected the defendant Heineman [617]*617having been vacated by the appeal to the Court of Court Pleas, Mr. Fowler had thereafter under the assignment no interest in any claim against Heineman.

The telegram sent by Heineman to Smith was properly received in evidence for the purpose for which it was offered. It tended to prove that Heineman, in employing players and acting as a manager of the polo team, was performing duties which were rather those of a member.of the association than of a mere player of the team.

We are unable to see how the defendant was injured by the failure of the court to consider the plaintiff’s motion to open the case for the presentation of further evidence.

There is no error.

In this opinion the other judges concurred.

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Bluebook (online)

42 A. 634, 71 Conn. 613, 1899 Conn. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-lathrop-conn-1899.

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