with danger, or that a safer kind of machinery is in common use for the same work: Nix v. Texas Pac. Ry. Co., 82 Tex. 473; 27 Am. St. Rep. 897, and note. An employer is bound to furnish machinery and appliances of ordinary character and reasonable safety, and the former is the conclusive test of the latter: Kehler v. Schwenk, 144 Pa. St. 348; 27 Am. St. Rep. 633, and note. See the notes to Monmouth Min. etc. Co. v. Erling, 39 Am. St. Rep. 195; Lehigh etc. Coal Co. v. Hayes, 15 Am. St. Rep. 682; and the extended notes to Kelley v. Silver Spring Co., 34 Am. Rep. 621, and Buzzell ▼. Laconia Mfg. Co., 77 Am. Dec. 218.

LIEDERKRANZ

SINGING SOCIETY V. GERMANIA
TURN VEREIN.

[168 PENNSYLVANIA STATE, 265.]

UNINCORPORATED ASSOCIATIONS-ACTIONS BY PARTIES.-In cases of unin corporated associations whose membership is large, suits may be brought by some of the members in their own names on behalf of, or as representing all, or in the name of the association by certain of its members. The former form is preferred. UNINCORPORATED ASSOCIATIONS - PROPERTY RIGHTS, HOW DECIDED.-A contention between the members of an unincorporated association as to the present right of possession of its property must be decided by the constitution and by-laws of the association, or, in the absence of any sufficient provision therein, by the majority of the members. The right of possession in such case is generally joint and not several. REPLEVIN to recover furniture and other personal property. The Liederkranz Singing Society was composed of about twelve active, and two hundred passive, members. At a meeting of the active members of the society it was resolved by the majority to remove the headquarters of the society to the hall of the Germania Turn Verein. The president, vicepresident, and one trustee of the former society thereupon moved its property to the new quarters. The members of the society who were in opposition then brought this suit under the name of the Liederkranz Singing Society of Lancaster, Pa., by F. C. Ostermayer et al. of the Board of Trustees of said Society v. Germania Turn Verein of Lancaster, Pa., and the afore said officers of the former society. The trial court entered a nonsuit on the motion of the defendants, on the grounds that the complainants had established no legal party plaintiff and had shown no right to maintain the suit, and that the defendants were entitled to the possession of the property in suit. The complainants appealed.

B. F. Davis, for the appellants.

J. A. Coyle, W. U. Hensel, J. H. Brown, and W. R. Brinton, for the appellee.

268 MITCHELL, J. It is conceded that in cases of unincorporated associations whose membership is large, suits may be brought by some of the members in their own names on behalf of or as representing all. The present action, therefore, would have been sustainable if brought in the name of Ostermayer and others in behalf of the members constituting the Liederkranz Society. It was brought in the name of the Liederkranz Society by Ostermayer et al. There is no substantial difference. The allowance of suits in any such form is a modification of the ordinary requirements as to parties, introduced by equity in the interest of practical convenience. "The second class is where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In cases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be even, if practicable, exceedly inconvenient": Story's Equity Pleading, sec. 107. It is necessary that the suit should be brought on behalf of all the parties in interest, but this may as well be done in substance by using the general name which describes them all, as by the phrase "in behalf of themselves and all others interested." The latter is the usual form, and it is always better to adhere to established practice, but, there being no plea in abatement here, the common interest of the parties being substantially expressed on the record, and there being individual plaintiffs responsible for costs, the case was not in position to be nonsuited for want of parties.

Unincorporated societies have long held in this state an intermediate position between corporations and partnerships. 269 Those for religious purposes, it is said by Lowrie, J., in Phipps v. Jones, 20 Pa. St. 260, 59 Am. Dec. 708, "have always, and especially since the act of 1731, been recognized as having an associate and quasi corporate existence in law." Their ownership of property is of the same intermediate character. It partakes of the qualities of both the others, the title being for many purposes joint and several like that of partners or joint tenants, while the right of possession is joint only as in corporations. Where the question of the

right of present possession arises it must be decided by the constitution and by-laws of the association, or, in the absence of any sufficient provision therein for such a case, by the majority. That is the real issue here. The plaintiffs claim the right to represent the association in the possession of the property sued for. If they can establish it they will be entitled to the verdict; if not, they must fail.

Judgment reversed and procedendo awarded.

UNINCORPORATED ASSOCIATIONS-ACTIONS.-PARTIES: See the extended note to Phipps v. Jones, 59 Am. Dec. 711-718.

UNINCORPORATED ASSOCIATIONS - PROPERTY RIGHTS. HOW DECIDED: See the extended notes to Otto v. Journeyman Tailors' etc. Union, 7 Am. St. Rep. 168, and Connelly v. Masonic Writ. Ben. Assn., 18 Am. St. Rep. 301.

MAGUIRE V. HERATY.

[163 PENNSYLVANIA STATE, 381.]

SPECIFIC PErformance-SALE TO TWO VENDEES.-If an owner of land enters into an oral contract to sell it, and subsequently executes a written agreement to sell the same land to another party, the latter is not entitled to specific performance of his contract in order to prevent the vendor from executing and carrying out the first contract. SPECIFIC PERFORMANCE-PARTIES.-After an owner of land has ignored his written agreement to convey the land, by conveying to another under a prior oral contract, the purchaser who has paid the purchase money and directed the deed to be made to a third person is a necessary party to a bill for specific performance filed by the holder of the written agreement against the vendor and against the grantee in the deed to have the latter declared a trustee of the legal title.

SPECIFIC PERFORMANCE.—EVIDENCE TO DEFEAT.-Any evidence that shows

that a decree of specific performance, even of a written agreement of sale, would be unfair or inequitable, is sufficient to defeat the appli. cation.

SPECIFIC PERFORMANCE-DAMAGES.-If, on the trial of a bill for specific performance of a contract to convey land, it appears that the vendor has made the execution of the agreement impossible, by the performance of a prior contract of sale and the acknowledgment and delivery of a deed in pursuance thereof, his liability upon the second contract is for damages only.

D. W. Sellers, for the appellant.

F. C. Brewster and T. F. Jenkins, for the appellees.

386 WILLIAMS, J. The report of the master shows the facts important to a decision of this case very clearly. The house and lot in controversy appear to have been the sepa

rate property of Mrs. Powel prior to the fourth day of October, 1892. On that day she and her husband made a verbal agreement for the sale of the property to their next door neighbor, Cockroft Thomas. For some reason which does not appear, her husband went on the following day to B. F. Teller & Bro. and authorized them to make sale of the house and lot for eighteen thousand dollars. They found a purchaser, notified Mrs. Powel, and she signed a memorandum, approving the sale negotiated by them, which is dated on the 6th of October, 1892. On the 18th of the same month she and her husband completed the sale to Thomas by executing and delivering their deed, acknowledged in due form, to his daughter, Susannah M. Heraty, for whose use he desired the property, and to whom he seems to have presented it as a gift. Maguire having refused to surrender or sell his interest under the bargain made by him with B. F. Teller & Bro., now seeks a decree for the specific execution by Mrs. Powel and her husband of the agreement made on their behalf by Teller & Bro., and that Susannah M. Heraty be adjudged trustee of the title for his use and directed to convey it to him. The 387 Powels, with the same indifference to the rights of others manifested in the negotiations preliminary to the sale, have taken no defense, and a decree pro confesso has been entered against them; but Mrs. Heraty denies that she is a trustee of the title for the plaintiff, and insists that she is entitled to hold it for herself.

Upon this question two facts are conclusive: 1. The contract made by her father and in execution of which the deed was delivered to Mrs. Heraty, was the first in point of time. It was made on the fourth day of October. The contract, so far as it was authorized or ratified by her, between Teller and the plaintiff, was on the 6th. It is a maxim of equity that first in time is first in right. Thomas had a right as between himself and his vendors, to insist on his agreement as good against any and all persons acquiring rights subsequently to his own; and Maguire was such a person. It is true that Mrs. Powel was not legally bound by her contract with Thomas, but on the other hand she was under no obligation, legal or moral, to repudiate it. If she chose to recognize and execute it she had a right to do so, and a court of equity will not deny to her this right. 2. Thomas, the purchaser, who paid the price of this property to Mrs.

Powel, and under whose direction the deed was made to Mrs. Heraty, is the party to the contract which we are asked to hold void, and he is a necessary party to this bill for that reason. Mrs. Heraty did not buy from Mrs. Powel. She is a donee of her father who did buy, and who paid the price; and if that contract of purchase and the deed made in pursuance of it are to be adjudged fraudulent and void as against the plaintiff, then beyond all question the actual purchaser should be a party.

The plaintiff insists that he shows the first and only written contract of sale, and that this contract is complete in every essential particular. This is true; but it was the privilege of Mrs. Powel to reply by the fact that she had made an earlier contract of sale which, though not in writing, she felt bound to perform, and that she had accordingly done so. The rule in equity is that any circumstance that shows that a decree of specific execution, even of a written agreement of sale, would be unfair or inequitable is sufficient to defeat the application: Brightly's Equitable Jurisdiction, 220. Mrs. Powel did not choose to state 388 the facts, but they have been made to appear by the other defendants, and have been distinctly found by the master. Even if the evidence upon this subject was conflicting the finding by the master would, when approved by the court below, be regarded as settling the question: Kutz's Appeal, 100 Pa. St. 75. But the evidence is not conflicting. There is no denial of the fact that the verbal contract with Thomas was made on the 4th of October. Whether Mrs. Powel was necessarily bound by her contract with the plaintiff it is not important now to inquire. She seems to have assumed her liability, and suffered a decree to be entered pro confesso against her.

As she has made the specific execution of the agreement impossible by the performance of a prior contract of sale, and the acknowledgment and delivering of a deed in pursuance thereof, her liability upon the second contract is for damages only, and these can be adjusted by the court below under the judgment pro confesso.

As to Susannah M. Heraty and M. P. Heraty, her husband, the decree is affirmed and the bill dismissed, appellant to pay the costs of this appeal. The record is remitted for proceedings under the decree pro confesso to ascertain the damages to which the plaintiff is entitled.