The contract upon which this suit is brought was dated the 2d July, 1793. It was subscribed by the defendants and others, in the character of elders and deacons of the church, though they were not, at that time, an incorporated body. They were consequently bound in their individual capacity. The case admits that the plaintiff was paid his salary, yearly, by the elders and deacons, for the time being, from the time of the contract, until the 2d May, 1804. One half of the elders and deacons were annually chosen; and it was therefore not the identical defendants who originally made the contract, but the rulers of the church who had assumed and performed the contract with the plaintiff. It does not appear that the plaintiff had ever looked to the individuals, who are now defendants, for his salary, but that he has constantly received it from the elders and deacons of the church. It further appears, that in 1796 the church became an incorporated body, under the act of 1788, and that the plaintiff, under his hand and seal, as pastor of the church, became a party to the act of incorporation j and that he had also, in 1803, under his hand, certified and declared the common seal of the corporation, and, that so late as 1808, he had charged the corporation with the salary for which he now sues.
These facts are sufficient evidence of. a waiver of the original contract, by the mutual understanding of the parties.*90* It was never acted upon, as a private contract with the individuals who subscribed it $> and after the. incorporation of the church, (and which the plaintiff is by his own acts„estopped to- deny,) the simple contract became extinguished, equally as a bond extinguishes a simple contract debt.f The corporation created, and acting by seal, became his debtor, and assumed and performed' the contract with his continued assent and concurrence. In short, the contract from the beginning, was considered as being made with the deacons and elders of the church, and not with the individual defendants; and after the incorporation of the church, that new body assumed the contract, and were accepted. The original contract with the defendants, as individuals, was waived or extinguished. The motion to set aside the nonsuit must, therefore, he denied.
Judgment of nonsuit.
Powell on Contracts, 415. f 1 Burr. 9.