Forsberg v. Zehm

143 S.E. 284, 150 Va. 756, 61 A.L.R. 232, 1928 Va. LEXIS 350

• Court: Court of Appeals of Virginia
• Decided: May 24, 1928
• Status: Published

Opinions

Crump, P.,

after making the foregoing statement, delivered the following opinion of the court.

The plaintiffs in error complain of the rulings of the trial court in overruling their demurrer to the notice of motion, in excluding certain evidence offered by them, in admitting evidence offered by the plaintiff, in refusing their instructions and granting others, and in denying a motion to set aside the verdict.

The contentions upon which these assignments of error are based, and which the defendants endeavor to support in their argument here, are that Zehm contracted, through the music committee as agents, with a known principal, the Ghent Methodist Episcopal Church South, named in the instrument, and therefore the agents are not liable to suit, and no one is so liable except the disclosed principal; and further that the contract discloses upon its face that the services of Zehm were to be satisfactory and the church had a right arbitrarily to declare at any time that they were not satisfactory and so terminate the agreement and discontinue Zehm’s employment.

We do not think the first of these propositions is tenable. The word “church” is used with varied 'significance, dependent upon the circumstances attending its use. It may refer only to the church building or house of worship; it may mean in a more consecrated way the great body of persons holding the Christian belief, or in a restricted sense confined to those adhering to one of the several denominations of the Christian faith, at large or in a definite territory; and it may mean the collective membership of persons constituting the congregation of a single permanent place of worship. It is in this latter sense that the word occurs in the contract, in which this church “of Norfolk, Virginia,” through the music committee, is named as a party. The music committee evidently desired to secure for the congregation a competent and experienced organist, who acting also as a choir master, should not only attend to the selection and rendition of appropriate music, but should be personally and professionally capable of selecting, attracting and holding in the choir, under his training, members of the congregation qualified to take part in the choir singing. It is almost the universal custom in our churches to have attractive music in connection with religious services and devotional exercises, and to that end to arrange for and keep up a choir capable of rendering sacred music in a manner pleasing and satisfactory to a large and discriminating congregation. In Virginia churches are not incorporated and under the policy of our law cannot be. Our statutes provide for the appointment of trustees to hold title to the permanent property of the church, and their powers are limited by the law authorizing their appointment. Globe Furniture Company v. The Members of Jerusalem Church, 103 Va. 559, 49 S. E. 657. In that case two of the trustees of the church bought certain furniture for the church and a judgment obtained against the several trustees for the purchase price was claimed to be a lien upon the property held by the trustees for the •church. The court held that a lien upon the church property could not be so created. The court, however, adds: “The judgment asserted is valid as to the individuals against whom it was obtained, but has no validity as a lien upon the real estate of the appellees.” In the instant ease there was no community of interest for business purposes between the members of the church. The board of stewards was from necessity the recognized instrumentality for handling the current funds, and, if they saw fit, for making contracts in reference to the use and disbursement of the funds. The music committee was an agent for the board, and it is manifest that they were so considered from the-minutes put in evidence and from the testimony of its members. Zehm looked to the board for the payment of his salary. The music committee acted under the-authority of the board.

The board, by resolution, directed its secretary to notify Zehm that the board no longer regarded him as available and that his engagement was terminated. The contract was made on behalf of the board as the-real principal. There must be competent parties to a. contract. However it may be in other States, in Virginia a church or its congregation cannot contract, certainly not unless perhaps by reason of a specially held meeting and through a special committee appointed by the members attending such meeting. Under the contract in question, therefore, either the members, of the music committee alone are liable, or the board, of stewards are liable as upon a contract made for them. And we think the latter is the result in the-instant case. It is urged on behalf of the board that, the church being named in the contract as a principal acting through the music committee, no contract at. all resulted as the church itself was not competent to-make a contract and so create a lien on its properties. The church, it is true, could make no contract and by its breach create a lien on the church property. But it was held in Globe Furniture Company v. Jerusalem Church, supra, that in such a case the individuals making the contract would be liable. The parties in the instant case evidently intended to enter upon a binding obligation. The court should not say that no such obligation resulted because the church es nomine is not a legal entity, is not competent to sue or be sued and could not be party to a contract. Applying the time-honored maxim ut res magis valeat quam pereat, we hold that the board of stewards should be taken as the actual principal acting through the music committee.

In Lunsford & Withrow v. Wren, 64 W. Va. 458, 63 S. E. 308, it was held that a building contract made on behalf of the Institutional Baptist Church by Wren, president of the board of trustees, was binding on the trustees, and the church not being a corporation, and not capable of being sued, was not a necessary party to the suit. In 1 Mechem on Agency (2nd ed.) section 1389 the author deals with the status of a person assuming to act for a group of others unincorporated, such as voluntary societies and unincorporated churches and the like. He there says: “It is of course possible, in such a ease, that the assumed agent may have expressly excluded personal responsibility, or that the person extending the credit may have done so in reliance upon voluntary payments, subscriptions or funds to be raised, but where it does not appear that he has done so, the person who assumes to act will usually be personally responsible.” And see also 23 R. C. L. page 432, 1 Williston on Contracts, section 309. In Trust Company v. Snyder, 148 Va. 381, 138 S. E. 477, the treasurer of the church was held, "under the circumstances there, to be representative of the trustees. The board of stewards in the instant case, in the usual discharge of their functions, caused Zehm to be employed through their music committee, and he has a right to look to them for a fulfillment of the provision of the contract, and we are of opinion, therefore, that the members of the board are jointly and severally liable to Zehm.

The board of stewards as defendants, on the trial, offered evidence tending to prove that owing to-some circumstances in the family circle of Zehm, which had become the subject of public comment and created great dissatisfaction in the congregation and threatened disruption of the chior and possible injury to the church, the right accrued to the board under the terms of the contract, to discontinue the engagement of Zehm without further liability. The court below refused to permit this testimony to go before the jury, and in-r structed the jury in effect that the plaintiff was entitled to recover if the three months’ notice was not given and the plaintiff was ready, able and willing to continue his services.

In this we think there was error. On behalf of the-board it is further contended that the services to be rendered by the plaintiff under the contract were matters of taste, to serve personal convenience or satisfy individual preference, and hence the defendants were the sole judges of whether the services were satisfactory, and might for that reason at any time arbitrarily terminate the employment. This conception of the case is based upon Carpenter v. Chemical Co., 98 Va. 177, 35 S. E. 358. In that case the court held that in a commercial contract of sale of certain mineral rock to be purchased by the buyer if he could use it satisfactorily in his business, the buyer could not arbitrarily repudiate the contract, but must show that he did so fairly and in good faith, and he had no right to decline to take the mineral because he could make better terms with others. The court there also recognized that, where the contract was to “gratify taste, serve personal convenience or satisfy individual preference,” then the party for whom the work is done may determine for himself whether it shall be accepted. The contract in the instant case does not fall within that latter class. This contract obligates Zehm “to accept the position, attend and serve at all regular services and necessary rehearsals, and in general to serve to the best of his ability, using due diligence at all times to promote the church music of the party of the first part to a high degree of excellence and efficiency.” For the “satisfactory performance of these things,”’ he was to receive $100.00 a month. The contract further stipulates that “the purpose of this agreement is to provide appropriate, harmonious and devotional music for the church services of the party of the first part, and in subscribing hereto the parties agree, each with the other, to co-operate solely toward that end.” Considering these contractual terms together, and giving full recognition to the requirement of “satisfactory performance,” but reaching a conclusion as to the intent of the parties in the light of the circumstances, of the purpose had in mind, and the character of services to be rendered by Zehm, both as organist and as choir director and master, it becomes obvious that the congregation were entitled to have Zehm perform his part of the contract in such manner as to be fairly and reasonably satisfactory to them and the persons attending the servies of the church.

The principles of law governing the enforcement of contracts of this character are dealt with in 13 Corpus Juris, pages 675-681, and in 1 Williston on contracts, section 44. The satisfactory performance in the instant case was not to be determined merely by the fancy, taste, or judgment of the music committee or the board of stewards. The test of satisfaction was the accomplishment of the rendition of such music by the organist and choir in connection with the church services as would be appropriate and harmonious, and reasonably sufficient in performance to satisfy those attending the religious services, and under such circumstances as would serve to continue the organization of a good choir and stimulate those participating in it. The music was to be rendered for the congregation. If Zehm’s personal services were not rendered unsatisfactory to the church membership at large by reason of the unfortunate circumstances in which he found himself, and those circumstances did not disturb the harmonious training of a choir at rehearsals or tend to disrupt the rendition of the music in general, then the stewards could not discharge him arbitrarily by the mere declaration that his services were no longer • satisfactory. Whether or not Zehm’s continued engagement would constitute satisfactory performance was a question for the jury to pass upon. If the jury find from the evidence that the stewards were justified by reason of the circumstances shown in evidence in declaring that Zehm’s services were no longer reasonably satisfactory and available, then the defendants are entitled to be released.

This is not simply a ease in which an employer, whose personal satisfaction is made the- test, may declare the services unsatisfactory at his will, provided - he acts honestly and not in bad faith. The possible rendering of the services not satisfactory here, within the intendment of the parties, must necessarily arise if at all out of circumstances and conditions not dependent upon the will nor uncontrolled judgment of the employer, but dependent upon collateral circumstances and facts such as would justify a reasonable man in the judgment that the continued services would no longer be satisfactory. The test of these circumstances appearing in the evidence must be that they reasonably uphold the conclusion of the unfitness of the employee.

As was said in Fechteler v. Whittemore, 205 Mass. 6, 91 N. E. 155, where the question was whether the goods bought were satisfactory: “It was not intended to be left to the whim or caprice or even altogether to the good faith of the defendants to say whether the goods were satisfactory. Under the circumstances the term ‘satisfactorily’ must be held to mean satisfactorily to a reasonable man, and the jury were so instructed.” So in Carpenter v. Chemical Co., supra, while the court approved a brief instruction in which the jury were told that “in determining whether the defendant could use the same satisfactorily, it was bound to act fairly,” the court states, however, what it understood the whole instruction to mean, for the court says: “The gist of the instruction is that the defendant was required to act fairly in refusing to take the Tennessee rock alleged to have been contracted for by it conditionally, and that in determining whether or not the rock was satisfactory, the jury should take into consideration the evidence bearing on that point, and determine whether the rock was in good faith not satisfactory to the defendant.” And the court immediately adds that it was contended by the defendant that it alone was the judge and had the right to reject the stock, even though the jury might think that it ought to have been satisf actory; and this contention is discussed and disallowed.

There may be apparent lack of harmony in the decisions upon these questions, but it doubtless arises from the great variety of circumstances under which the questions are presented. Th.9 relations of the contracting parties to each other, the real object of the contract, and the character of the services to be rendered, or the use to which articles sold is to be put, and all other circumstances must be considered in determining the rights of the parties. In Sun Company v. Burruss, 139 Va. 279, 123 S. E. 347, a sale of oil was made to be shipped at intervals, with the stipulation that the “financial responsibility of the buyer must at all times be satisfactory to seller or shipments may be suspended,” and the court held that if the buyer’s financial responsibility was at any time unsatisfactory to the seller, it had a right to suspend shipments and make defense to a suit on' the contract upon that ground, provided the shipments were suspended in good faith for that reason. There the agreement was that the seller was at liberty to suspend shipments, if at any time the buyer’s financial. responsibility appeared .to him unsatisfactory, and the court gave effect to the agreement.

Upon the assignments of error we are of opinion that:

The trial court did not err in overruling defendants’ demurrer;

The court did not err in refusing to allow the defendants to put to the witnesses the general questions concluding with: “Will you please state whether or not the party of the second part who is plaintiff in this suit satisfactorily performed what was required of him' under this contract?” as this called for a general opinion. The evidence referred to in this second assignment should, however, have been admitted in so far as it bore upon what the witnesses had observed touching dissatisfaction in the congregation, and tending to the injury of the church;

The court did not err in admitting the evidence offered by the plaintiff which is the subject of the third assignment;

The court did not err in refusing defendants’ instruction complained of in the fourth assignment, as that instruction allowed the defendants to discharge the plaintiff arbitrarily.

The fifth assignment is based upon the granting of instructions No. 1 and No. 2 offered by the plaintiff.

The court erred in granting No. 1, which is in conflict with the views we have expressed; but did not err in giving instruction No. 2, the only objection made thereto being that “there is no evidence to support or show any liability on any individual defendant in this action.”

The court erred in refusing to set aside the verdict of the jury.

The requirement in the contract for three months’ notice has reference only to the termination of the agreement at the expiration of the first or any subsequent year, so that without such notice the contract continued after September 1, 1925, as a yearly contract. No notice having been given to terminate the contract at the end of the first year, the parties continued bound by its provisions for a second year. The defense of the board of stewards is based upon a right to terminate the contract by reason of a failure on the part of Zehm to comply with substantial terms of the contract relating to its performance, and such termination could only take effect from the time it was demanded. Therefore, Zehm was entitled, upon the evidence on the trial, to a recovery of his salary from September 1st to October 15th, the residue of the second year’s salary being in issue.

The judgment of the trial court must be reversed, the verdict set aside, and the case remanded for a new trial to be had not in conflict with the views expressed in this opinion.

Reversed and remanded.