faith of the subscription, in furtherance of the enter-effect of incur- prise intended to be ring expense. promoted, the right of revocation is lost, and the subscription is thereby rendered valid, binding, and enforceable, subject, of course, to such conditions as the contract imposes. An examination of the cases shows that this is the generally accepted theory with regard to subscriptions for benevolent or charitable purposes. Many of them are reviewed in the note cited above at pages 787, 801. There is some disagreement in the decisions as to what meets the requirement of a legal consideration. Some courts hold that it is supplied by mutual subscriptions, upon the theory that where several persons subscribe for a common object, or to a cause in which they have a common interest, the promise of the others constitutes a consideration for the promise of each. Note in 48 L.R.A. (N.S.) 798. While the reason for allowing a recovery upon this ground is usually stated in terms of consideration, some decisions, including our own, sustain a recovery on the theory of an estoppel. See Troy Conference Academy v. Nelson, 24 Vt. 189. Again, it is held by some courts that the expenditure of time, labor, and money in securing additional subscriptions, the securing of which is made a condition of the subscription in question, constitutes a sufficient consideration to support a promise. Our case last cited adopts this rule. It was there held that where a subscription to a charitable fund is conditioned upon the raising of a certain total amount, there is an implied request that the promisee shall endeavor to raise that amount, and if he does so endeavor and succeeds, a sufficient consideration for the subscription is furnished. Other cases applying the same principle are Kentucky Baptist Edu. Soc. v. Carter, 72 Ill. 247; University of Des Moines v. Livingstone, 57 Iowa, 307, 42 Am. Rep. 42, 10 N. W. 738; University of Chicago v. Emmert, 108 Iowa, 500, 79 N. W. 285; Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325; Converse's Estate, 240 Pa. 458, 87 Atl. 849; Robinson v. Nutt, 185 Mass. 345, 70 N. E. 198. Finally, such courts as hold that no consideration is to be found in the mutual subscriptions themselves, or in the effort made to procure them, are in full accord with the general proposition that an acceptance of the proposal by the promisee and some act in reliance upon it, such as entering upon the performance of obligations incurred under the agreement, expending money, or incurring legal liability in furtherance of the enterprise, supplies the necessary consideration or operates as an estoppel, and that the subscription is thereby rendered irrevocable, binding, and enforceable. Mr. Williston, in his work on Contracts, takes the position that the enforcement of charitable subscriptions is only to be supported if a promissory estoppel is to be regarded as a sufficient substitute for consideration. Williston, Contr. § 116. Among the cases supporting this view are Beatty v. Western College (Miller v. Western College) 177 Ill. 280, 42 L.R.A. 797, 69 Am. St. Rep. 242, 52 N. E. 432, Simpson Centenary College v. Tuttle, 71 Iowa, 596, 33 N. W. 74, and School Dist. v. Sheidley (School Dist. v. Stocking) 138 Mo. 672, 37 L.R.A. 406, 60 Am. St. Rep. 576, 40 S. W. 656. Having in mind these divergent views, the following illustrative cases will serve to indicate sufficiently the trend of the decisions where benevolent or charitable subscriptions are involved: "The promise stands as a mere offer, and may, as a necessary consequence, be revoked at any time before it is acted upIt is the expending of money, or incurring of legal liability, on the faith of the promise, which gives the right of action." Pratt v. Baptist Soc. 93 Ill. 475, 34 Am. Rep. 187. on. The supreme judicial court of Massachusetts has held that mere gratuitous or benevolent proposals (97 Vt. 495, 124 Atl. 568.) are lacking in consideration, and so not enforceable; but that an acceptance of the proposal by the promisee and some substantial act in reliance upon it, such as obtaining additional subscriptions to make up the amount required and entering upon the performance of the obligations incurred under the agreement, furnish a sufficient consideration to support the contract. Robinson v. Nutt, 185 Mass. 345, 70 N. E. 198. Though a subscription is originally voluntary, or in the nature of a mere open proposition, yet where it has been accepted and acted on by the party authorized so to do before any attempt is made to retract, the subscriber loses his right to revoke. Athol Music Hall Co. v. Carey, 116 Mass. 471. "Persons making gratuitous subscriptions are entitled to withdraw before such party [in interest] has in some manner accepted the proposition or acted upon it.' American L. Ins. Co. v. Melcher, 132 Iowa, 324, 109 N. W. 805. "A mutual written subscription for a charitable purpose supported by a good consideration-the promises of others-cannot be withdrawn at the will of the subscriber." Willingham v. Benton, 25 Ga. App. 412, 103 S. E. 497. "When a subscription to a church building fund is supported by the consideration of other subscriptions made in reliance thereon, and is irrevocable by the conditional subscriber at the time of his death, his death does not operate as a revocation." Waters v. Union Trust Co. 129 Mich. 640, 89 N. W. 687. A gratuitous promise will be converted into a valid and enforceable contract if expense is incurred or liability is "created in furtherance of the enterprise the donor intended to promote, and in reliance upon the promises, they will be taken to have been incurred and created at his instance and request, and his executors will be estopped to plead want of consideration." School District v. Sheidley, supra. "Where promisee has expended money or incurred liabilities on the faith of a subscription, or it is within the contemplation of the subscriber that his contribution will be used to induce others to subscribe, and additional subscriptions are made by reason of such inducement, even in part, the substantial elements of an estoppel are present." Furman University v. Waller, 124 S. C. 68, 33 A.L.R. 615, 117 S. E. 356. In University of Pennsylvania v. Cadwalader, 277 Pa. 512, 121 Atl. 314, the trustees of the university, relying upon the subscriptions of the decedent and others, incurred obligations in carrying out the purposes for which the funds were intended, and had expended a part of the total amount subscribed. It was held that this action on their part constituted a consideration which made the gift irrevocable and binding, not only upon the donors, but upon their representatives after their death; that the acceptance of the gift and the incurring of obligations in reliance upon it created a valid, binding contract, and the subscriptions became irrevocable thereafter. In Twenty-third Street Baptist Church v. Cornell, 117 N. Y. 601, 6 L.R.A. 807, 23 N. E. 177, it is said that subsequent expenditures made in reliance upon the subscriptions may afford consideration, so that the subscription is not revoked by the death of the subscriber where the expenditure can be said to have proceeded with the knowledge and assent of the subscribers. Our own cases are to the same effect. University of Vermont v. Buell, 2 Vt. 48, was an action upon a subscription agreement signed by the defendant and others in which the subscribers promised to pay certain specified sums for the purpose of rebuilding the college buildings which had been destroyed by fire. The subscriptions were made upon the condition that they were not to be binding unless a certain sum should be subscribed, but, the amount having been raised, the subscriptions were discharged from the condition. Among the defenses relied upon was the claim that the agreement was without consideration. Sufficient consideration to support the promise was found in the fact that the plaintiff accepted the proffered assistance and, relying thereon, proceeded in the erection of the buildings and expending its own funds to accomplish that purpose. It was held that, although the promise lacked mutuality at the outset, the acceptance of the subscription, the appointment of a committee to superintend the undertaking, and the actual commencement of the work, in good faith, with a view to its ultimate completion, "was a consummation of the consideration" and bound the defendant to a performance on his part. The question of revocation was not in the case, but it is evident from what was decided that the relations of the parties were regarded as having changed when the offer was accepted and acted upon by the defendant. The Buell Case is cited in State Treasurer v. Cross, 9 Vt. 289, 31 Am. Dec. 626, as authority for a holding that a subscription to a fund being raised by the citizens of Montpelier to secure the erection of a new capitol building was not void for want of consideration, when the act authorizing the building was conditioned upon a voluntary contribution for that purpose by the inhabitants of Montpelier and the building had been erected as contemplated. In Troy Conference Academy v. Nelson, 24 Vt. 189, it was held that a binding obligation was created not only for the reasons already stated, but that a consideration for the agreement was also to be found in the obligation imposed upon and assumed by the academy, the assumed liability furnishing a consideration for the promise of the subscribers. These cases are referred to with approval in Montpelier Seminary v. Smith, 69 Vt. 382, 387, 38 Atl. 66, and Grand Isle v. Kinney, 70 Vt. 381, 388, 41 Atl. 130. In the former it is said that a legal consideration may consist in loss, damage, or inconvenience sustained by the party to whom the promise was made; and in the latter, that the detriment to the plaintiff induced by the agreement of the defendants was ample consideration for their agreement to pay the sum stipulated. It is urged by the defendant that by its express terms the subscription agreement could have no binding force until the specified amount of subscriptions had been procured, and this is relied upon as distinguishing the case from those cited by the plaintiff. The argument is based upon the erroneous assumption that the promise to pay was on a contingency made with other future subscribers and not with the plaintiff. Proceeding upon this theory, it is argued, in effect, that there could be no contract between Mr. Vail and those who became subscribers after his death; that he could not be bound unless there was a contract with all the other subscribers necessary to meet the condition; that, as to one who had not yet signed, Mr. Vail's subscription would be a mere offer which could only be accepted by becoming a subscriber; and that signing after his death would be an attempt to accept a dead man's offer, which could not be done. As already appears, there is no foundation for the attempted distinction. distinction. The condition that the subscribers' "obligation to pay" shall not be fixed and binding until subscriptions to a certain amount shall have been made is not a matter of contract between the subscribers, but a limitation or qualification of each subscriber's liability to the plaintiff. It does not affect the character of the agreement, but imposes a condition respecting its enforceability. 2 Williston, Contr. § 666. In this respect it is no different than the ordinary conditional subscription agreement found in many of the decisions. We have examined the cases cited by the defendant to the proposition that, the conditional amount not having been raised before Mr. Vail's death, the estate (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 accord with the views herein expressed. It must be held in the circumstances shown that, shown that, before Mr. Vail's death, his subscription had ceased to be a revocable offer and had become at least an obligation enforceable when the condition respecting the total amount of the subscriptions was complied with. He had lost the right of revocation, if, indeed, it ever existed. We have no occasion to consider the effect of the seal on the question of consideration, nor whether the rule as to mutual subscriptions should be applied. It fairly appears that the plaintiff accepted the subscriptions, conducted a campaign to secure the required amount at Mr. Vail's implied request, and with his knowledge and approval incurred expense and obligations in furtherance of the plan of which he was the principal promoter, relying upon the subscriptions to finance the undertaking. In such circumstances, tested by wellestablished principles, Mr. Vail's subscription became in his lifetime a valid and irrevocable obligation, even if the condition before condition under which the subscription was to become due and payable had not then been met. This is so whether the action of the plaintiff is deemed to have supplied a consideration for the promise, as held in some cases, or to afford the basis of an estoppel, as held in others. -effect of death met. -time for se sary amount. Lea College v. Brown, 88 Minn. 524, 60 L.R.A. 870, 93 N. W. 672; Presbyterian Bd. of Foreign Missions v. Smith, 209 Pa. 361, 58 Atl. 689; note in 48 L.R.A. (N.S.) 801, 802; 37 Cyc. 492, 493. Nor is the result affected by the fact, if present, that the entire amount was not subscribed before Mr. Vail's death. The time within which the necessary subscriptions could be secured to meet the condition was not stipulated and, by operation of law, was curing neceslimited only to a reasonable time. It cannot be held, as the defendant argues, that it was impliedly limited to January 1, 1920. As Mr. Vail's death did not revoke the subscription, the League would still have a reasonable time within which to complete the raising of the fund. During such time his estate would be bound to the same extent that he would have been bound if living. Converse's Estate, 240 Pa. 458, 87 Atl. 849; School Dist. v. Sheidley (School Dist. v. Stocking) 138 Mo. 672, 37 L.R.A. 406, 60 Am. St. Rep. 576, 40 S. W. 656; Waters v. Union Trust Co. 129 Mich. 640, 89 N. W. 687. Assuming that it is necessary to take into account subscriptions procured after Mr. Vail's death, it sufficiently appears that the condition was met within a reasonable time. Unquestioned subscriptions aggregating $5,850 were thereafter secured to the original agreement. The exact time within which they were obtained is not stated in the findings. The individual subscription of $500, secured on June 12, 1920, alone would be sufficient to meet the condition as to amount. While it is not expressly found that the condition was met within a reasonable time, the judgment is not objected to on this ground. But we may presume in support of the judgment that the trial Appeal-pre of facts. court inferred the sumption as fact, as such an in- to inference ference is warranted by the facts found. The case is not subject to the provisions of Gen. Laws 2259, relating to the facts to be found by the county court before a bill of exceptions is allowed "when a question of fact that entitles either party to trial thereof by jury is tried by the court." In cases within this statute it has been held that the review is necessarily confined to the facts reduced to writing and filed by the court below, unaided by any inferences. Grapes v. Roque, 96 Vt. 286, 119 Atl. 420; Powell v. Merrill, 92 Vt. 124, 131, 103 Atl. 259. But the restriction is limited to cases in which a party is entitled to a trial by jury. "Entitled" signifies a claim of right-the right to demand or receive. Webster's New Int. Dict.; 20 C. J. 1272; People's Trust Co. v. Smith (Sup.) 31 Abb. N. C. 422, 30 N. Y. -effect of statute on right to inferences. Supp. 342. In probate appeals, except where the allowance or disallowance of a will is the issue, there is no such right. Gen. Laws 3466; Re Peck, 87 Vt. 194, 88 Atl. 568; Re Smith, 88 Vt. 259, 273, 92 Atl. 223. The defendant briefs exceptions to the findings numbered from (a) to (z) inclusive, taken upon four separate grounds as to each: (1) That there was no supporting evidence; (2) that it was contrary to the evidence; (3) that it was not supported by the other findings; (4) that it was contrary to the other findings. Seven exceptions to the admission of evidence are also briefed. It is enough to say that they do not show reversible error. For the most part, they relate to questions that become immaterial in view of the foregoing holdings, or are otherwise sufficiently disposed of in what has already been said. We have occasion to refer only to such questions as require particular notice. The objection to the admission of the individual subscription papers (exhibits 2 to 17) on the ground that they are not exact counterparts of the original subscription agreement signed by Mr. Vail, and the exception to the finding that, except as to date, they were exact counterparts thereof, are without substantial basis. The condition that the "obligation to pay" necessity that should only become Subscriptionbinding when "bona all agreements fide subscriptions" terparts. to the stipulated shall be coun amount had been made required no such formality. The very most that the defendant would be justified in claiming is that only the subscribers to the original agreement and duplicates thereof became parties thereto. But it would not follow that bona fide subscriptions of uniform tenor and for a common object could not be taken into account in determining whether the condition had been met. Moreover, in all material respects they were duplicates of the original agreement. The only difference relied upon is that they bear different dates, that the abbreviation, "Inc.," is appended to the name of the League on the individual subscriptions and not on the original agreement, and that all except the original agreement have the corporate seal affixed. Appeal-insuf question. One exception was "to the findings in finding (21)." The paragraph of the findings so numbered cites in detail the acts of the plaintiff done "relying upon the subscrip- ficiency of extion of Mr. Vail and ception to raise others." It is now urged that there was no evidence tending to show that any obliga tions were incurred in reliance The exupon the subscriptions. ception was plainly too general to make the point relied upon available. It covered numerous findings which it is not now claimed were unsupported by evidence and did not point out the matter now complained of. To make an excep tion available, it -necessity of must reasonably in- specific excepdicate the fault, and not leave the court in ignorance of the precise ground on which it is predicated. Morgan v. Gould, 96 Vt. 275, 279, 119 Atl. 517. But it tions. |