Shuler v. Meyers

By the Court

I think the court committed no error in granting the motion for a nonsuit. The complaint in this action alleges an agreement to build a school-house for the trustees, according to an agreement made with said trustees, and that said trustees omitted and refused to pay. The plaintiff' claimed in his opening to recover against the defendants as trustees. I think that the complaint was insufficient to entitle the plaintiff to maintain the action. 1st. It contained no averment that the defendants were trustees nor that the plaintiff claimed to recover against them as such. The words “ trustees,-&e.,” used in the title of-the case, and the word “ trustees,in the body of the complaint, are mere descriptions of the persons, and not averments that the defendants were sued or acted in that capacity. (19 Barb., 179, 181, 182, 184; 2 Seld., 168, 171; 4 Seld., 472, 474 ; 22 Mass., 372.) The ease cited from 40 Barb., 374, is not in conflict with this doctrine. That case holds, that the names of the plaintiffs in the title of the case, with the description of *172them as “ commissioners of highways,” and an averment in the complaint “ that the plaintiffs as commissioners of highways complain,” indicate the character in which they complain, and show that the claim is made by them as officers, and not as individuals. There is no such averment in the case at bar, and nothing from which it may be inferred that the defendants were actually sued as trustees. 2d. The defendants as trustees had no authority to act or to build a school-house except by a vote of the inhabitants at a meeting of the district. (Sess. Laws of 1864, 1243, § 16, sub. 7; p. 1253, § 49, sub. 5.) As their powers were limited, the complaint should have averred that they were authorized, by a vote of the district or in proper form, to make the contract. As this allegation was omitted, it is manifest that the facts alleged do not show a cause of action against the defendants in their corporate capacity, but only against them as individuals. (10 How., 143, 144; 1 Pars, on Const., 105, 106.)

The application of the plaintiff to amend the complaint was addressed to the sound discretion of the court, and as there is no evidence that the court abused its discretion, I think that it is no ground for a reversal of the judgment, because the court denied the application. The proposed amendment would have changed entirely the nature of the action. If it had been granted, the complaint would have presented an action against the defendants as officers of the school district in their corporate capacity, instead of an action against them personally. This would have been entirely a different cause of action from the one tried before the justice, and to refuse such a sweeping application to amend was not error or an abuse of the discretion of the court. (54 Barb., 411, 414.) There was no error, and the judgment must be affirmed with costs.

Judgment affirmed.