Peckham v. Trustees of the Ministerial Fund of the North Parish

delivered the opinion of the Court. This is an action of assumpsit brought by the settled minister of the North Parish in Haverhill, against the trustees of the parish fund, they being a body politic and corporate by virtue of the act of 1822, c. 77. The action is founded on a vote of the parish *563at the tine of the plaintiff’s settlement, to give and appropriate to his use the income of the parish fund, which it was agreed should amount to $ 285, and the use of the parsonage. The plaintiff’s counsel contend that this vote amounts to a grant of the income of the parish fund, and that the assent of the defendants is to be inferred, or that the law will imply a promise on their part to pay over any money in their hands received as income of the fund, to the plaintiff, he being entitled to the same by virtue of the parish grant. Whether this vote amounts to a grant of the income of the parish fund, or to an executory contract binding only on the parish, depends on the intention of the contracting parties as manifested by the language of the vote, the nature of the contract, and the construction of the act incorporating the trustees of the parish fund. It seems that the parish did not consider their vote as a grant of the income of the fund, for they appropriated it from year to year, for several years after the plaintiff’s settlement, to his use. And the vote has been so treated by the plaintiff, for he has brought several actions upon it as on an executory contract. And this, as it appears to us, is the most obvious construction of the vote. It is a promise to give and appropriate the income of the fund, and to make it equal to $285, if short of that sum, and is not to be understood as a present grant.

And we think, according to the true construction of the act of 1822, c. 77, the parish had no right to make a grant of the income to the plaintiff for life or during the continuance of his ministry. The fund and the income were vested in the trustees ; and by the 6th section they were prohibited from alienating any part of the capital fund, but they were allowed to apply the interest or income, if the parish should so direct, for the support of a regular ordained gospel minister, until it should amount to the sum of $450 per annum; after which'.the surplus income over that sum was allowed to be applied for other parochial purposes, if the parish should so direct. • The parish, therefore, had manifestly no right to make a grant of the income of the fund, especially to operate in futuro. They' might direct the trustees to make an appropriation according to the terms of the statute ; but the effectual appropriation was to be made by the trustees. By the 9th section the trustees are *564to be amenable to the inhabitants of the parish for negligence or misconduct in the management or disposition of the trust fund ; and the parish are authorized to maintain an action therefor, which is be for the benefit of the fund.

Upon the whole matter, it is sufficiently clear, that the parish never intended to make a grant of the income of the fund, nor had they any power or right to make a valid grant of it; and consequently their vote must be considered as an executory contract, upon which the parish only is liable. Between the present parties there is no privity of contract, nor can a promise on the part of the defendants be inferred from the facts reported.

Judgment therefore must be rendered on the nonsuit which was entered at the trial.