lied upon by the parties, and, first, those cited by the appellee sustaining his position that the note is supported by sufficient legal consideration.

In Barnett v. Franklin College, 10 Ind. App. 103, 37 N. E. 427, two notes were sued upon for $5,000 each, promising payment to the college the first one "to be used as the capital stock of said institution is used, the principal to be loaned on real estate, and the interest, only, to be used for current expenses of the college;" and the second one containing the words, "Given to complete James Forsyth professorship." It was alleged in the petition that these notes, or bonds, as they were called, were accepted by the college upon the terms and conditions specified, which acceptance was duly entered of record, and it was said by the court: "This provision in the bond, and the averment of accept ance, not to speak of the further allegation that the claimant had fully performed all the conditions on its part to be performed, and had at all times been and still was ready and willing to apply the proceeds of said bonds to the purposes and objects therein specified, are sufficient of themselves, and in the absence of the averment respecting the expenditure of money, and incurring of liabilities for improvements, in anticipation of the payment of these and other bonds, to show a valid consideration for the promise contained in the instruments in suit, and to render the complaint. sufficient to withstand the demurrer."

It was further said: "The principle upon which promises of the character of those embraced in the present case are held to be valid is the reciprocal undertaking on the part of the promisor to pay, and the promisee to perform something of value to the promisor, though the value may only be of indirect benefit to the latter, such as the obligation in the present case that the appellee will hold and apply the funds prom

ised in compliance with the terms of the contract."

And further: "The acceptance of the obligation imposed creates a trust incapable of being subsequently renounced, and which may be enforced by proper legal proceedings. Nor is it necessary that the obligation of the trustee should be performed in advance of the payment of the fund, for the very purpose of the subscription is to enable such party to perform the duty imposed, and hence the mere retaining of the instrument, and the institution of suit upon the same, is regarded as sufficient prima facie evidence of such acceptance [citing cases]."

In Troy Conference Academy v. Nelson, 24 Vt. 189, the action was brought upon a subscription paper for the raising of a fund to pay the debts of the academy, and it was held: "The consideration for this agreement is found in the obligation imposed upon, and assumed by, the trustees of this academy, to see to and make the application of this money as directed by the subscribers to this fund, so as to enable this institution to prosecute its duties of public instruction, for which it was incorporated, thus rendering this assumed liability and promise the consideration of the promise of the other."

Amherst Academy v. Cowls, 6 Pick. 427, 17 Am. Dec. 387, was an action upon a promissory note given for the purpose of establishing a permanent fund of $50,000 for the establishment of the college which should succeed the academy, and scription theretofore made. While was given to take the place of a subsome stress is laid upon the fact that the note recognized a previous liabil ity or obligation under the subscrip tion contract, the decision announc、 es the principles contended for by the claimant, the court saying: "Was there a consideration for this note when it was given? In one sense there was not; that is, the promisor had received nothing at the time from the payees which was

of any pecuniary value.

202 N. W. 609.)

(Neb.

But it is

quite sufficient to create a consideration that the other party, the payee, should have assumed an obligation in consequence of receiving the note, which he was compellable either at law or equity to perform, unless the promisor should be able to show, when sued, that the payee had refused, or was unable, or had unreasonably neglected to perform the engagement on his part; in which cases a defense might be raised on the ground of a failure of the consideration. It certainly then would seem that every contributor to the funds of a corporation authorized by law to receive moneys and apply them to the improvement, in most essential points, of the community to which he belongs, has his recompense in his share of the public good resulting from them, and if by means of his contribution, or his solemn promise to pay, the body to whom he has pledged his word should encounter expense, become under legal obligations, or otherwise pursue the intent and purpose of the legislature in granting them the charter, this is a sufficient legal consideration to support such a promise."

In Furman University v. Waller, 124 S. C. 68, 33 A.L.R. 615, 117 S. E. 356, the action was brought upon a subscription to the funds of the university through the First Baptist Church, the paper being headed, "The Baptist 75 Million Campaign Pledge Card." The defense was want of consideration, but the court, after holding that (1) "a subscription for a charitable purpose is merely a continuing offer to make a gift, and is unenforceable until accepted and acted upon by promisee in such a manner as to establish mutuality of obligation," further held, (2) "where promisee has before. withdrawal accepted the subscription, agreed to apply the promised contribution to the purpose for which it was subscribed, and has assumed an enforceable obligation, consideration to support promisor's agreement is supplied by promisee's

enforceable obligation," and supported the second proposition by the following language in the opinion: "Where the promisee has, before withdrawal, accepted the subscription, and has expressly, or by clear implication, agreed to apply the promised contribution to the purpose for which it was subscribed, and has thereby assumed the discharge of an obligation, which may be enforced in law or in equity, the element of valuable consideration to support the promisor's agreement is supplied by the enforceable covenant of the promisee; there is, then, promise for promise, and therefrom springs a valid and enforceable contract."

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, was an action upon a promissory note payable to the treasurer of the university "for the endowment of said institution," and it was held: "Consideration for a promissory note executed to an incorporated college is the accomplishment of the purposes for which it is incorporated and in whose aid the note is executed; and such consideration is sufficient."

The court, in distinguishing between a mere gift and a promise to pay upon consideration, said: "A promise to give money to one to be used by him according to his inclination and for his personal ends is prompted only by motive. But a promise to pay money to such an institution to be used for such defined and public purposes rests upon consideration. sideration. The general course of decisions is favorable to the binding obligation of such promises."

It was further said: "It is not contemplated by the parties, nor is it required by the law, that in cases. of this character the institution shall have done a particular thing in reliance upon a particular promise. Not only do the law and the parties contemplate the permanency of the institution, but all promisors understand that the proceeds of their promises will be mingled with prior

and subsequent donations and together constitute the financial support of the enterprise. The requirements of the law are satisfied, the objects of the parties secured, and the perpetration of frauds prevented by the conclusion that the consideration for the promise in question is the accomplishment, through the university, of the purposes for which it was incorporated and in whose aid the promise was made."

In Roche v. Roanoke Classical Seminary, 56 Ind. 198, it is held that the only defense to a subscription to the endowment fund of an institution of learning would be an abandonment by the latter of the enterprise for which it was incorporated and in aid of which the note was executed.

Brokaw v. McElroy, 162 Iowa, 288, 50 L.R.A. (N.S.) 835, 143 N. W. 1087, was upon promissory notes purporting to have been given for value received for the endowment of the Kansas City University, and Evans, J., said, arguendo: "If the original promise, when made, was intended to induce activities and expenditures by the beneficiary in pursuance of the purpose of its organization, and if such activities and such expenditures were induced thereby, even in part, it is a sufficient consideration."

And further: "Such notes are frequently, if not usually, executed, not as evidence of a promise to make a future gift, but for the specific purpose of creating a present asset for its beneficiary. A very substantial part of the assets of such institutions exist in this form. To lightly withhold judicial sanction from such obligations would be to destroy millions of assets of the most beneficent institutions in our land, and to render such institutions helpless to carry out the purpose of their organization."

That the acceptance by the institution is an implied promise to hold and appropriate the funds in conformity with the terms and objects of the subscription gives rise to mu

held in Ladies' Col- implicationlegiate Institute v. acceptance of French, 16 Gray,

subscription.

196. This is not in conflict with our holdings, because the promise here referred to is that [of] the donee, not the other subscribers.

A number of other cases tending to support the position of plaintiff are cited. Those above referred to are sufficient to show the reasons for holding subscriptions and instruments of the character in suit to be based upon a sufficient consideration. Some of the cases referred to are: First Presby. Church v. Dennis, 178 Iowa, 1352, L.R.A. 1917C, 1005, 161 N. W. 183; Albert Lea College v. Brown, 88 Minn. 524, 60 L.R.A. 870, 93 N. W. 672; Collier 'v. Baptist Education Soc. 8 B. Mon. 68; Williams College v. Danforth, 12 Pick. 541; Maine Cent. Institute v. Haskell, 73 Me. 140; Scott v. Triggs, 76 Ind. App. 69, 131 N. E. 415.

We will now consider some of the cases taking an opposite view on the question of consideration. Methodist Orphans' Home Asso. v. Sharp, 6 Mo. App. 150, was upon a subscription for the purpose of paying the debt of the association, and it was held: "Gratuitous subscriptions for charitable purposes cannot be enforced unless the promisee has, in reliance on the promise, done something. The mere fact that others were by the promise led to subscribe is not sufficient." It may be remarked that, as the subscription was merely for the purpose of paying a debt already incurred, the consideration referred to in other cases of the assumption by the promisee of an obligation in connection with the subscription is absent, though in a similar case (Troy Conference Academy v. Nelson, 24 Vt. 189) it was held that the agreement to apply the fund to the purpose intended was a sufficient consideration. University of Des Moines v. Livingston, 57 Iowa, 307, 42 Am. Rep. 42, 10 N. W. 738, was a case in

which a subscription to pay a debt already incurred was held without consideration. Johnson v. OtterOtterbein University, 41 Ohio St. 527, was another case of subscription for the payment of the debts then existing of the university, and which was held without legal consideration; and, further, that the acceptance of the subscription did not give rise to a case of mutual promises in the sense requisite to constitute a consideration in law. The court refers to and distinguishes Ohio Wesleyan Female College v. Higgins, 16 Ohio St. 20, which held that subscriptions to a college authorized by statute to receive donations, bequests, etc., and requiring them to be applied for the purposes specified in the act, or in accordance with the designs expressed by the donors, were supported by sufficient consideration; the ground of distinction being stated as follows:

"It

[the statute] names no subject of gift; and, of course, all things that can pass by gift are included. Gratuitous promises are not named, and, not being subjects of gift, are not included. They are left to the control of the law."

This proposition would seem, however, to be directly opposed to the later decision of Irwin v. Lombard University, supra, which cites the Higgins Case with approval, and closes its decision with the statement: "An examination of the digest of the decisions of the various courts of the state will show that there has been a uniform adherence to these views [expressed in the opinion] until the case of Johnson v. Otterbein University, supra, was decided by the commission. A majority of the court are of the opinion that there is not such identity of facts in that case and this that we are required here to overrule it."

The lack of identity referred to doubtless is disclosed by the fact that in the Johnson Case the subscription was to pay an indebtedness already contracted, while in the Irwin Case it was to an endowment 38 A.L.R.-55.

fund; a distinction easily conceivable as important upon the question of consideration. Furthermore, at the close of the decision in the Johnson Case the court said: "We place the reversal on these legal propositions-that the creation of a fund with which to pay the previously incurred indebtedness of the institution was not a consideration in law for the promise, and that the acceptance of the writing containing the direction to apply the fund does not, in a legal sense, give rise to a case of mutual promises."

Cottage Street M. E. Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286, was on a subscription to build a chapel. The chapel was afterwards built, but whether in reliance upon the defendant's subscription was not considered by the lower court, and the case was reversed for that reason.

Hamilton College v. Stewart, 1 N. Y. 581, is specially relied upon by defendant, and was upon a subscription to a fund for the payment of the salaries of the officers of Hamilton College, and it was distinctly held that the endowment of a literary institution is not a sufficient consideration to uphold a subscription to a fund designed for that object, and that the condition that the subscribers are not bound unless a given amount shall be raised affords no implication of a request that the institution perform the services and incur the expenses necessary to fill up the subscription. It was held that the case was not one of mutual promises, because no promise by the corporation was shown; that "the corporation do not undertake that that sum shall be subscribed, or that any other person will endeavor to procure subscriptions, or that they will make the investment or appropriate the income of the fund to the purpose designated." And it was therefore conceded in that case, by the court, that if "the defendant agreed to pay $800 provided the plaintiffs would procure subscriptions, and should afterwards invest the money, etc., this, according to

the cases, would amount to a request to perform those services, and the defendant would be liable;" which was later expressly held in Keuka College v. Ray, 167 N. Y. 96, 60 N. E. 325.

Presbyterian Church v. Cooper (First Presby. Church v. Cooper) 112 N. Y. 517, 3 L.R.A. 468, 8 Am. St. Rep. 767, 20 N. E. 352, was another case of a subscription to pay off the debt of a church, and following the Stewart and Kendall Cases above referred to. Hull v. Pearson, 38 App. Div. 588, 56 N. Y. Supp. 518, was upon a subscription to pay within six months a sum for the work of the German department of the Rochester Theological Seminary, and the court held that the promise was without consideration, in the absence of any request that the corporation do something which it would not have done except for this subscription, the court saying: "He undoubtedly made the subscription for the purpose of aiding in promoting the work of the German department; but, in the absence of some act or word which clearly indicated that he accompanied his subscription by a request to do something which the corporation would not have done except for his subscription, there is no such request as would justify a constructive consideration in support of this promise."

The cases from New York, above referred to, are cited as authority in La Grange Male & Female College v. Parker, 198 Mo. App. 372, 200 S. W. 663, where the action was upon a promissory note given as a subscription to the endowment fund of the college, and it was held lacking in consideration because the evidence failed to show that anything was paid to the maker of the note as a consideration therefor, or that the college had expended any money or incurred enforceable liabilities in reliance thereon. The question of the acceptance of the note by the college and its assumption of any obligation as to the application of the fund, as supplying the necessary consideration, is not discussed or re

ferred to. There was some question as to the delivery of the note, but the case was decided upon the proposition that it was a mere promise to make a gift in the future, and, lacking what was deemed a sufficient consideration, the promise was held void.

Defendant further cites Homan v. Steele, 18 Neb. 652, 26 N. W. 472, and Armann v. Buel, 40 Neb. 803, 59 N. W. 515, which held that the mutual promises of subscribers are supported by a sufficient consideration, when the person or corporation for whose benefit they were made has incurred obligations on the faith of such subscriptions, and has complied with the conditions on which they were made. There is practically no dispute as to the rule in such cases. These were both cases involving volving commercial transactions, and, of course, involved no discussion of the problem before us, do not purport to lay down a hard and fast rule on the subject of the consideration necessary to support a subscription, and therefore do not conclude us upon the perplexing problem with which we are engaged.

From a careful consideration of the cases cited, and many others, there seems to be no middle ground upon which we may take our stand; either the instrument in question is a nudum pactum, or it is a valid contract supported by a sufficient consideration. The requirement of a legal consideration to the validity of a contract arises out of the necessity or propriety of protecting the promisor against fraud and overreaching; but the law's solicitude does not extend to the point of requiring the consideration to be of a specific character or amount, and leaves these questions, in the absence of fraud or mistake, to the determination of the parties. We are, therefore, not concerned with the particular thing, or its value, which the promisor has considered a sufficient inducement for his promise. All that we are required to do is to ascertain that the subject-matter of the consideration is such as to war