Evidence-sub

of evidence.

It

scription-re- to support the findliance-necessity ing of reliance. is sufficient that the circumstances supported such an inference.

Plaintiff's exhibit 21 is the financial budget of the Junior Achievement Bureau of the League for the year 1920. This exhibit and the testimony that Mr. Vail paid $4,250 in two instalments towards his subscription in 1920 were excepted to as incompetent, immaterial, and irrevelant, and on on the the particular ground, in substance, that no contract on the part of Mr. Vail had been established. These exceptions are briefed as follows: "Exhibit 21 was not admissible for reasons already stated; no agreement had been established. The same applies to testimony of Mr. Shirley about payments by Mr. Vail."

Appeal-sufficiency of brief.

Our attention is not called to any portion of the brief where the question is discussed. It must be held that the points are not adequately briefed. See McAllister v. Benjamin, 96 Vt. 475, 498, 121 Atl. 263.

Because of the conclusion reached on the main question, we find it unnecessary to consider the claim advanced by the plaintiff that Mr. Vail had, in his lifetime, waived the condition respecting the amount to be secured before he would be bound to pay his subscription. The circumstances are convincing that Mr. Vail regarded the obligation as binding upon him. In view of his connection with the enterprise throughout, it would be unjust to him as a business man, and the generous benefactor that he is known to have been, to think that he entertained the suspicion even that he, or his estate upon which he had expressly enjoined the fulfilment of his promise, would be at liberty to withdraw his benefaction, with the attendant embarrassment to the League. It is a source of gratification that a result can be reached on legal grounds

tion.

The defendant excepted to the "finding" that the case should be kept on the docket "with the court" for subsequent proceedings, from time to time, to determine the exact amount of the liability of the defendant as it should become fixed under the provisions of the subscription agreement. The only claim in the brief is that the "finding" was erroneous, as sufficient subscriptions had not been obtained before Mr. Vail's death. The ex

ception cannot be sustained, but it remains to be considered whether the orders of the county court respecting subsequent instalments of the subscription should be affirmed and the cause remanded to that court for further proceedings, or such orders vacated and the cause remanded to the probate court to be there proceeded with. The defendant's counsel suggested in oral argument that if the result was an affirmance of the judgment, the cause should be certified to the probate court with directions as to further proceedings. While Gen. Laws 3453 gives the county court concurrent law and equity jurisdiction in causes appealed from the probate court, and empowers the presiding judge to make such orders and decrees therein as a chancellor might make if the cause were pending in the court of chancery, it would seem that it was not intended that the county court should retain the cause for such further proceedings as are contemplated in this order. Gen. Laws 3470 provides that the final decision and judgment in causes appealed shall be certified to the probate court by the supreme or county court, and that "the same proceedings shall be had in the probate court as though such decision had been made in such court." Thus it would seem that the statute contemplates the handling of such a situation as this case -retention of presents in the pro- case by appelbate court upon the remand. Chapter 154 of the Gen

late court.

161 N. W. 183; Price v. Joncs, 105 Ind. 543, 55 Am. Rep. 230, 5 N. E. 683; Carnwright v. Gray, 127 N. Y. 92, 12 L.R.A. 845, 24 Am. St. Rep. 424, 27 N. E. 835; Emery v. Darling, 50 Ohio St. 160, 33 N. E. 715; Patterson v. Chapman, 2 A.L.R. 1471 and note, 179 Cal. 203, 176 Pac. 37.

The subscription involved is based upon a sufficient consideration.

Irwin v. Lombard University (Irwin v. Webster) 56 Ohio St. 9, 36 L.R.A. 239, 60 Am. St. Rep. 727, 46 N. E. 63; First Presby. Church v. Dennis, 178 Iowa, 1352, L.R.A.1917C, 1005, 161 N. W. 183; Y. M. C. A. v. Estill, 48 L.R.A. (N.S.) 783 and note, 140 Ga. 291, 78 S. E. 1075, Ann. Cas. 1914D, 136; Brokaw v. McElroy, 50 L.R.A. (N.S.) 835 and note, 162 Iowa, 288, 143 N. W. 1087; Roche v. Roanoke Classical Seminary, 56 Ind. 198; Albert Lea College v. Brown, 88 Minn. 524, 60 L.R.A. 870, 93 N. W. 672; Furman University v. Waller, 124 S. C. 68, 33 A.L.R. 615, 117 S. E. 356; Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325; Scott v. Triggs, 76 Ind. App. 69, 131 N. E. 415.

The question of sufficiency of the consideration is to be determined, not as of the time the subscription is made, but as of the time when it is sought to be enforced.

Owenby v. Georgia Baptist Assembly, 137 Ga. 698, 74 S. E. 56, Ann. Cas. 1913B, 238; Barnett v. Franklin College, 10 Ind. App. 103, 37 N. E. 427; 25 R. C. L. 1401, § 8.

Redick, District Judge, delivered the opinion of the court:

Action upon a written subscription, in the form hereinafter set out, to the endowment fund of Nebraska Wesleyan University. The claim was duly filed in the county court, and upon appeal the jury was waived and the case submitted to the district court, and resulted in a judgment for the plaintiff, from which defendant appeals; and the case is submitted to this court upon a case stated and the briefs and arguments of the parties. A summary of the facts as agreed upon by the parties will suffice for the presentation of the questions to be reviewed.

The plaintiff, the Nebraska Wesleyan University, is a corporation organized under the statutes of this

state, and carried on under the auspices and control of the Methodist Episcopal Church, for the purpose of education along the usual lines pursued by universities. It is governed by a board of trustees, seven in number, and has power under its charter and the statutes of this state to receive and hold for the purposes of the corporation real and personal property by gift, grant, will, devise, bequest, or purchase. The funds of the institution are to be applied to the erection of suitable buildings, and the payment of salaries of officers, instructors, and servants, and other expenses connected with carrying on the work of education. The articles of incorporation were filed June 7, 1904, and since about that time the institution has been successfully carried on, having at present about a thousand students, and possessing real and personal property of the value of about $700,000, and two endowment funds of $350,000 and $1,341,000, respectively, the latter amount including the $5,000 subscription in controversy. The principal of these endowment funds is held intact, and only the income therefrom may be used for the maintenance of the institution, but such income is insufficient and has to be supplemented by contributions from persons interested in the university. From about the middle of September to midnight of December 21, 1921, the university conducted an extensive campaign, at an pense of many thousands of dollars, for the purpose of raising funds for the maintenance of the university, which resulted in payments and pledges in the above sum of approximately $1,341,000. During this campaign, and about 8:30 P. M. of the last day, December 21, the solicitors procured from Homer Griswold a pledge in the following words:

"Nebraska Wesleyan Endowment Fund Estate Pledge. "$5,000. Uni. Place, Postoffice, Neb., State. Dec. 21, 1921, Date. "In consideration of my interest

in Christian education and of other subscriptions to this endowment, building and expense fund, I hereby subscribe and promise to pay to the Nebraska Wesleyan University the sum of five thousand dollars. Due and payable at my death. For value received.

"District-Lincoln. "Charge-Homer Griswold." Indorsed across left side margin: "Solicitor-Smith, Roper, Blair."

This was the last pledge taken during the campaign, and at 10 o'clock that evening was included with other subscriptions to make the total fund above stated, and has ever since been carried upon the books of the university as a part of its endowment fund, the principal of which, as was well understood by Griswold, was to be kept separate and intact, and the income only to be used in defraying the expenses of maintaining the university. At the time of making said instrument Griswold was in good health and of sound mind, and under no disability or undue influence. "There was no consideration for said note other than is recited therein and as may be inferred from the making of said subscription. No monetary consideration was paid to Griswold by the claimant."

The defendant bases his argument for reversal upon two propositions: (1) That the instrument in question is testamentary in character and not enforceable as a claim against the estate; (2) that the instrument in question was a mere executory promise to make a gift, not based upon a valuable consideration, and therefore revocable at the option of the maker, and for this reason was revoked by the death of the maker through operation of law.

As to the first proposition, we do not deem it necessary to consider it at any length, because it is conceded, and is undoubtedly the law, that if a promissory note or any other written contract is supported by a sufficient consideration, the fact that performance is postponed until aft

And it must be likewise conceded that, not being a donatio causa mortis, the lack of a sufficient consideration would render the instrument unenforceable.

The decisive question, therefore, for our decision, is whether or not the instrument in suit is supported by a sufficient consideration, and this question has been presented to the courts of many states, with somewhat varying conditions and facts, and opposite conclusions announced, and, the case being one of first impression in this jurisdiction, its correct decision depends upon the proper application of general principles, and a careful analysis of the reasons given in support of the diverse conclusions of other courts, and such other reasons as may be found of controlling or logical application to the problem.

In the first place, the note purports to have been given "for value received;" but this may be called in question by evidence of the entire transaction tending to show that in fact no consideration existed.

In Homan v. Steele, 18 Neb. 652, 26 N. W. 472, quoting from 2 Kent's Commentaries, *465, it is said: “A valuable consideration is one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. Any damage, or suspension, or forbearance of a right will be sufficient to sustain the promise."

Many courts have given definitions in somewhat different language, but they are all, in the ultimate conclusion, reducible to the proposition, contained in the above quotation, that a consideration must be something either of benefit to the promisor or a detriment to the promisee. In cases of unconditioned contributions to charitable or educational institutions, generally speaking, the benefit to the promisor con

sists of that which he receives as one of the general public by the carrying on of the institutions which are the object of his bounty, and the personal satisfaction consequent upon the devotion of a portion of his property to the benefit of the public; but such gifts arise merely out of the generous motives of the donor, the benefits of which furnish no legal consideration for the promise. A somewhat different situation is presented, as will appear later, when the promise is upon condition, performance of which is required of the institution.

The

detriment to the promisee may consist in the forbearance of a right, the incurring of some liability, or the assuming of some obligation with reference to the fund.

It is urged by plaintiff that a sufficient consideration is established by the following facts:

(1) That the claimant expended large sums of money in procuring the subscriptions.

(2) That the promise of each subscriber to the common purpose was a sufficient consideration to support the other subscriptions.

(3) That the claimant accepted said subscription and carried it on its books as a part of the endowment fund.

(4) That by such acceptance it impliedly agreed and assumed the obligation to continue the work of the university, to keep the principal fund intact, and apply the income thereof, only, for the support of the university.

Of these in their order:

(1) There was no request, express or implied, by the donor, resulting in this expenditure, and therefore this consideration fails. In Brokaw v. McElroy, 162 Iowa, 288, 298, 50 L.R.A. (N.S.) 835, 143 N. W. 1091, Evans, J.. said of a similar contention: "The suggestion is quite abhorrent, and we know of no legal principle to justify it. Such an expenditure cannot be deemed a consideration. Such an expenditure is essentially different in its nature and in its equity from

expenditures and obligations incurred in carrying on the enterprise for which the institution was organized, in reliance upon the promise."

True, it was held in Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325, that where a large subscription had been promised on condition that $20,000 be raised from others within a given time, and defendant subscribed $500 to secure the required amount, which was afterwards completed, the continued efforts of the committee to raise the required amount furnished a sufficient consideration, as having been made upon request of the donor; but that is not this case. In fact, as suggested by defendant, the subscription in question was the last one obtained, and while we do not accept the argument of defendant to its full extent, on this particular point it seems conclusive that none of the expenses were incurred on the strength of this subscription.

(2) That the mutual subscriptions of the donors furnished of themselves sufficient consideration each for the other is denied in this state, unless the promisee has made some expenditures, or changed his situation, or done some other act in reliance upon the subscriptions, or has complied with the conditions on which they were made. Homan v. Steele, supra; Armann v. Buel, 40 Neb. 803, 59 N. W. 515. It would seem unnecessary to resort to the mutual promises for a consideration in such circumstances, as the incurring of expense or compliance with the condition would be sufficient. Moreover, the mutual promises referred to in those cases were those of the subscribers, while in the instant case the promises under consideration are those of the donor and donee.

The third and fourth points may be considered together, and it is in connection with these propositions that the great divergence of the authorities is met, and it will be necessary to consider as briefly as may be a number of the principal cases re