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-effect of incur

faith of the subscription, in further- 108 Iowa, 500, 79 N. W. 285; Keuka

ance of the enter- College v. Ray, 167 N. Y. 96, 60 N.

prise intended to be E. 325; Converse's Estate, 240 Pa. ring expense.

promoted, the right 458, 87 Atl. 849; Robinson v. Nutt, of revocation is lost, and the sub- 185 Mass, 345, 70 N. E. 198. Finally, scription is thereby rendered valid, such courts as hold that no considbinding, and enforceable, subject, of eration is to be found in the mutual course, to such conditions as the subscriptions themselves, or in the contract imposes. An examination effort made to procure them, are in of the cases shows that this is the full accord with the general proposigenerally accepted theory with re- tion that an acceptance of the progard to subscriptions for benevo- posal by the promisee and some act lent or charitable purposes. Many in reliance upon it, such as entering of them are reviewed in the note upon the performance of obligations cited above at pages 787, 801.

incurred under the agreement, exThere is some disagreement in the pending money, or incurring legal decisions as to what meets the re- liability in furtherance of the enterquirement of a legal consideration. prise, supplies the necessary conSome courts hold that it is supplied sideration or operates as an estopby mutual subscriptions, upon the pel, and that the subscription is theory that where several persons thereby rendered irrevocable, bindsubscribe for a common object, or ing, and enforceable. Mr. Williston, to a cause in which they have a com- in his work on Contracts, takes the mon interest, the promise of the oth- position that the enforcement of ers constitutes a consideration for charitable subscriptions is only to the promise of each. Note in 48 be supported if a promissory estopL.R.A.(N.S.) 798. While the rea- pel is to be regarded as a sufficient son for allowing a recovery upon substitute for consideration. Wilthis ground is usually stated in liston, Contr. § 116. Among the terms of consideration, some deci- cases supporting this view are Beatsions, including our own, sustain a ty v. Western College (Miller v. recovery on the theory of an es- Western College) 177 Ill. 280, 42 toppel. See Troy Conference Acad- L.R.A. 797, 69 Am. St. Rep. 242, 52 emy v. Nelson, 24 Vt. 189. Again, it N. E. 432, Simpson Centenary Colis held by some courts that the ex- lege v. Tuttle, 71 Iowa, 596, 33 N. penditure of time, labor, and money W. 74, and School Dist. v. Sheidley in securing additional subscriptions, (School Dist. v. Stocking) 138 Mo. the securing of which is made a con- 672, 37 L.R.A. 406, 60 Am. St. Rep. dition of the subscription in ques- 576, 40 S. W. 656. tion, constitutes a sufficient consid- Having in mind these divergent eration to support a promise. Our views, the following illustrative cascase last cited adopts this rule. It es will serve to indicate sufficiently was there held that where a sub- the trend of the decisions where bescription to a charitable fund is con- nevolent or charitable subscriptions ditioned upon the raising of a cer- are involved: "The promise tain total amount, there is an im- stands as a mere offer, and may, as plied request that the promisee shall

a necessary consequence, be revoked endeavor to raise that amount, and at any time before it is acted upif he does so endeavor and succeeds, on. It is the expending of money, a sufficient consideration for the

or incurring of legal liabilsubscription is furnished. Other ity, on the faith of the promise, cases applying the same principle which gives the right of action." are Kentucky Baptist Edu. Soc. v. Pratt v. Baptist Soc. 93 Ill. 475, 34 Carter, 72 Ill. 247; University of Am. Rep. 187. Des Moines v. Livingstone, 57 Iowa, The supreme judicial court of 307, 42 Am. Rep. 42, 10 N. W. 738; Massachusetts has held that mere University of Chicago v. Emmertgratuitous or benevolent proposals

(97 Vt. 495, 124 Atl. 568.) are lacking in consideration, and so money or incurred liabilities on the not enforceable; but that an accept- faith of a subscription, or it is withance of the proposal by the promisee in the contemplation of the subscriband some substantial act in reliance er that his contribution will be used upon it, such as obtaining addition to induce others to subscribe, and al subscriptions to make up the additional subscriptions are made by amount required and entering upon reason of such inducement, even in the performance of the obligations part, the substantial elements of an incurred under the agreement, fur- estoppel are present." Furman nish a sufficient consideration to University v. Waller, 124 S. C. 68, support the contract. Robinson v. 33 A.L.R. 615, 117 S. E. 356. Nutt, 185 Mass. 345, 70 N. E. 198. In University of Pennsylvania v.

Though a subscription is original- Cadwalader, 277 Pa. 512, 121 Atl. ly voluntary, or in the nature of 314, the trustees of the university, a mere open proposition, yet where relying upon the subscriptions of it has been accepted and acted on by the decedent and others, incurred the party authorized so to do before obligations in carrying out the purany attempt is made to retract, the poses for which the funds were insubscriber loses his right to revoke. tended, and had expended a part of Athol Music Hall Co. v. Carey, 116 the total amount subscribed. It was Mass. 471.

held that this action on their part "Persons making gratuitous sub- constituted a consideration which scriptions are entitled to withdraw made the gift irrevocable and bind

before such party (in inter- ing, not only upon the donors, but est] has in some manner accepted upon their representatives after the proposition or acted upon it." their death; that the acceptance of American L. Ins. Co. v. Melcher, 132 the gift and the incurring of obliIowa, 324, 109 N. W. 805.

gations in reliance upon it created A mutual written subscription a valid, binding contract, and the for a charitable purpose supported subscriptions became irrevocable by a good consideration—the prom- thereafter. ises of others-cannot be withdrawn In Twenty-third Street Baptist at the will of the subscriber." Wil- Church v. Cornell, 117 N. Y. 601, 6 lingham v. Benton, 25 Ga. App. 412, L.R.A. 807, 23 N. E. 177, it is said 103 S. E. 497.

that subsequent expenditures made "When a subscription to a church in reliance upon the subscriptions building fund is supported by the may afford consideration, so that consideration of other subscriptions the subscription is not revoked by made in reliance thereon, and is ir- the death of the subscriber where revocable by the conditional sub- the expenditure can be said to have scriber at the time of his death, his proceeded with the knowledge and death does not operate as a revoca

assent of the subscribers. tion." Waters v. Union Trust Co. Our own cases are to the same 129 Mich. 640, 89 N. W. 687.

effect. University of Vermont v. A gratuitous promise will be con- Buell, 2 Vt. 48, was an action upon verted into a valid and enforceable a subscription agreement signed by contract if expense is incurred or the defendant and others in which liability is "created in furtherance the subscribers promised to pay cerof the enterprise the donor intended tain specified sums for the purpose to promote, and in reliance upon the of rebuilding the college buildings promises, they will be taken to have which had been destroyed by fire. been incurred and created at his in- The subscriptions were made upon stance and request, and his execu- the condition that they were not to tors will be estopped to plead want be binding unless a certain sum of consideration." School District should

should be subscribed, but the v. Sheidley, supra.

amount having been raised, the "Where promisee has expended subscriptions were discharged from

the condition. Among the defenses loss, damage, or inconvenience susrelied upon was the claim that the tained by the party to whom the agreement was without considera- promise was made; and in the lattion. Sufficient consideration to ter, that the detriment to the plainsupport the promise was found in tiff induced by the agreement of the the fact that the plaintiff accepted defendants was ample consideration the proffered assistance and, rely- for their agreement to pay the sum ing thereon, proceeded in the erec- stipulated. tion of the buildings and expending It is urged by the defendant that its own funds to accomplish that by its express terms the subscrippurpose. It was held that, although tion agreement could have no bindthe promise lacked mutuality at the ing force until the specified amount outset, the acceptance of the sub- of subscriptions had been procured, scription, the appointment of a com- and this is relied upon as distinmittee to superintend the undertak- guishing the case from those cited ing, and the actual commencement by the plaintiff.

plaintiff. The argument is of the work, in good faith, with a based upon the erroneous assumpview to its ultimate completion, tion that the promise to pay was on "was a consummation of the consid- a contingency made with other fueration” and bound the defendant ture subscribers and not with the to a performance on his part. The plaintiff. Proceeding upon this thequestion of revocation was not in ory, it is argued, in effect, that there the case, but it is evident from what could be no contract between Mr. was decided that the relations of the Vail and those who became subparties were regarded as having scribers after his death; that he changed when the offer was accept- could not be bound unless there was ed and acted upon by the defendant. a contract with all the other subThe Buell Case is cited in State scribers necessary to meet the conTreasurer v. Cross, 9 Vt. 289, 31 dition; that, as to one who had not Am. Dec. 626, as authority for a yet signed, Mr. Vail's subscription holding that a subscription to a fund


would be a mere offer which could being raised by the citizens of Mont- only be accepted by becoming a subpelier to secure the erection of a scriber; and that signing after his new capitol building was not void death would be an attempt to accept for want of consideration, when the a dead man's offer, which could not act authorizing the building was be done. As already appears, there conditioned upon a voluntary contri- is no foundation for the attempted bution for that purpose by the in- distinction. The condition that the habitants of Montpelier and the subscribers' "obligation to pay" building had been erected as con- shall not be fixed and binding until templated. In Troy Conference subscriptions to a certain amount Academy v. Nelson, 24 Vt. 189, it shall have been made is not a matter was held that a binding obligation of contract between the subscribers, was created not only for the reasons but a limitation or qualification of already stated, but that a considera- each subscriber's liability to the tion for the agreement was also to plaintiff. It does not affect the charbe found in the obligation imposed acter of the agreement, but imposes upon and assumed by the academy, a condition respecting its enforcethe assumed liability furnishing a ability. 2 Williston, Contr. $ 666. consideration for the promise of the In this respect it is no different than subscribers. These cases are re- the ordinary conditional subscripferred to with approval in Mont- tion agreement found in many of the pelier Seminary V. Smith, 69 Vt. decisions. We have examined the 382, 387, 38 Atl. 66, and Grand Isle cases cited by the defendant to the v. Kinney, 70 Vt. 381, 388, 41 Atl. proposition that, the conditional 130. In the former it is said that a amount not having been raised belegal consideration may consist in fore Mr. Vail's death, the estate

-time for se

sary amount.

(97 Vt. 495, 124 Atl. 568.) would not be liable on the subscrip- 129 Mich. 640, 89 N. W. 687; Albert tion, and find them in substantial Lea College v. Brown, 88 Minn. 524, accord with the views herein ex- 60 L.R.A. 870, 93 N. W. 672; Prespressed.

byterian Bd. of Foreign Missions v. It must be held in the circum- Smith, 209 Pa. 361, 58 Atl. 689; stances shown that, before Mr. note in 48 L.R.A.(N.S.) 801, 802; Vail's death, his subscription had 37 Cyc. 492, 493. Nor is the result ceased to be a revocable offer and affected by the fact, if present, that had become at least an obligation en- the entire amount was not subforceable when the condition re- scribed before Mr. Vail's death. specting the total amount of the sub- The time within which the necesscriptions was complied with. He sary subscriptions could be secured had lost the right of revocation, if, to meet the condition was not stipindeed, it ever existed. We have no ulated and, by opoccasion to consider the effect of the eration of law, was curing necesseal on the question of considera- limited only to a tion, nor whether the rule as to mu- reasonable time. It cannot be held, tual subscriptions should be applied. as the defendant argues, that it was It fairly appears that the plaintiff impliedly limited to January 1, 1920. accepted the subscriptions, conduct- As Mr. Vail's death did not revoke ed a campaign to secure the re- the subscription, the League would quired amount at Mr. Vail's implied still have a reasonable time within request, and with his knowledge and which to complete the raising of the approval incurred expense and ob- fund. During such time his estate ligations in furtherance of the plan would be bound to the same extent of which he was the principal pro- that he would have been bound if moter, relying upon the subscrip- living. Converse's Estate, 240 Pa. tions to finance the undertaking. In 458, 87 Atl. 849; School Dist. v. such circumstances, tested by well- Sheidley (School Dist. v. Stocking) established principles, Mr. Vail's 138 Mo. 672, 37 L.R.A. 406, 60 Am. subscription became in his lifetime St. Rep. 576, 40 S. W. 656; Waters a valid and irrevocable obligation, v. Union Trust Co. 129 Mich. 640,

even if the condition 89 N. W. 687. before condition under which the Assuming that it is necessary to

subscription was to take into account subscriptions probecome due and payable had not cured after Mr. Vail's death, it sufthen been met. This is so whether ficiently appears that the condition the action of the plaintiff is deemed was met within a reasonable time. to have supplied a consideration for Unquestioned subscriptions aggrethe promise, as held in some cases,

gating $5,850 were thereafter seor to afford the basis of an estoppel, cured to the original agreement. as held in others.

The exact time within which they This conclusion removes any pos

were obtained is not stated in the sible doubt as to the merits of the findings. The individual subscripcase and simplifies the consideration tion of $500, secured on June 12, of the exceptions. It is evident 1920, alone would be sufficient to from what has already been said meet the condition as to amount. that Mr. Vail's death did not revoke While it is not expressly found that his subscription. The rule that the the condition was met within a readeath of a subscriber to a benevolent sonable time, the judgment is not or charitable purpose works a rev- objected to on this ground. But we -when death

ocation of the sub- may presume in support of the judg

scription applies on- ment that the trial scription. ly to cases where court inferred the sumption as

Appenl--prethe decedent himself might have re- fact, as such an in- to inference voked the promise at the time of his ference is warrantdeath. Waters v. Union Trust Co. ed by the facts found. The case

-effect of death


revokes sub

of facts.

shall be coun

-effect of statnte on right to inferences.

is not subject to the provisions as to date, they were exact counterof Gen. Laws 2259, relating to parts thereof, are without substanthe facts to be found by the coun- tial basis. The condition that the ty court before a bill of excep

"obligation to pay" tions is allowed “when a ques

should only become


necessity that tion of fact that entitles either par. binding when “bona all agreements ty to trial thereof by jury is tried

fide subscriptions” terparts. by the court." In cases within this to the stipulated statute it has been held that the re- amount had been made required no view is necessarily confined to the such formality. The very most that facts reduced to writing and filed by the defendant would be justified in the court below, unaided by any in- claiming is that only the subscribers ferences. Grapes v. Roque, 96 Vt. to the original agreement and dupli286, 119 Atl. 420; Powell v. Merrill, cates thereof became parties there92 Vt. 124, 131, 103 Atl. 259. Bu to. But it would not follow that the restriction is limited to cases in bona fide subscriptions of uniform which a party is entitled to a trial tenor and for a common object could by jury. “Entitled" signifies a not be taken into account in deterclaim of right-the right to demand mining whether the condition had or receive. Webster's New Int. been met. Moreover, in all material Dict.; 20 C. J. 1272; People's Trust respects they were duplicates of the Co. v. Smith (Sup.) 31 Abb. N. C. original agreement. The only dif422, 30 N. Y. Supp. 342. In pro- ference relied upon is that they bear

bate appeals, except different dates, that the abbreviawhere the allowance tion, "Inc.," is appended to the name

or disallowance of of the League on the individual suba will is the issue, there is no such scriptions and not on the original right. Gen. Laws 3466; Re Peck, agreement, and that all except the 87 Vt. 194, 88 Atl. 568; Re Smith, original agreement have the cor88 Vt. 259, 273, 92 Atl. 223.

porate seal affixed. The defendant briefs exceptions One exception was “to the findto the findings numbered from (a) ings in finding (21).” The parato (z) inclusive, taken upon four graph of the findings so numbered separate grounds as to each: (1) cites in detail the acts of the plainThat there was no supporting evi- tiff done “relying dence; (2) that it was contrary to

upon the subscrip- Aciency of er.

Appealthe evidence; (3) that it was not

tion of Mr. Vail and ception to raise supported by the other findings; others." It is now


question. (4) that it was contrary to the oth- urged that there was no evidence er findings. Seven exceptions to the

tending to show that any obligaadmission of evidence are also

tions were incurred in reliance briefed. It is enough to say that they

upon the subscriptions. The exdo not show reversible error. For the

ception was plainly too genermost part, they relate to questions that become immaterial in view of

al to make the point relied upon the foregoing holdings, or are other

available. It covered numerous wise sufficiently disposed of in what findings which it is not now claimed has already been said. We have oc

were unsupported by evidence and casion to refer only to such ques

did not point out the matter now tions as require particular notice. complained of. To make an excep. The objection to the admission of

tion available, it

-necessity of the individual subscription papers

must reasonably in- specific excep(exhibits 2 to 17) on the ground

dicate the fault, and tions. that they are not exact counterparts

not leave the court in ignorance of of the original subscription agree- the precise ground on which it is ment signed by Mr. Vail, and the predicated. Morgan v. Gould, 96 exception to the finding that, except Vt. 275, 279, 119 Atl. 517. But it

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