« PreviousContinue »
that the subscriber made any request Washington. Depauw University in this respect.
V. Ankeny (1917) 97 Wash. 451, 116 And in Twenty-third Street Baptist Pac. 1148. Church v. Cornell (1890) 117 N. Y. “A contribution by one naturally 601, 6 L.R.A. 807, 23 N. E. 177, where operates as an inducement to contria subscription was conditional upon a butions by others. It is not unusual certain aggregate of subscriptions, that publicity is given to contributhe court, in holding that it was not tions already made as an inducement enforceable, said that no endeavor to to others. If it is within the contemobtain subscriptions was occasioned plation of a contributor that the fact by the expressed wish or direction of that his contribution may be anthe testatrix, but began and was con- nounced to others as an inducement tinued irrespective of it.
to contributions by them, and if addiAnd the expense incurred in secur- tional contributions be made by reaing the subscription of the person son of such inducement, even in part, sued does not constitute consideration it operates as a sufficient considerafor the subscription, although the ex- tion for the promise of the first conpense of securing others does. Bro- tributor. It is not essential in such kaw v. McElroy (1913) 162 Iowa, 288, a case that the additional contribu50 L.R.A. (N.S.) 835, 143 N. W. 1087. tions thus induced should be devoted The court said that an expenditure in to the same fund, or to the erection of the form of commissions for obtaining the same building. If the original the various subscriptions sued on dif- promise, when made, was intended to fers essentially in its nature and in induce activities and expenditures by its equity from expenditures and obli- the beneficiary in pursuance of the gations incurred in carrying on the purpose of its organization, and if enterprise for which the institution such activities and such expenditures was organized, and in reliance upon were induced thereby, even in part, it which the promise was made, and can- is a sufficient consideration.” Brokaw not upon any legal principle be v. McElroy (Iowa) supra. This case deemed a consideration for the promise. was followed and approved in Upper
And consideration for a subscrip- Iowa Conference v. Noyes (1914) 165 tion agreement may be found from the Iowa, 601, 146 N. W. 848. fact that others were led to subscribe Since a legal consideration may conby the very subscription of the de- sist either in some right, interest, fendant.
profit, or benefit accruing to one party, Iowa.-Brokaw v. McElroy (1913) or some forbearance, judgment, loss, 162 Iowa, 288, 50 L.R.A.(N.S.) 835, or responsibility given, suffered, or 143 N. W. 1087.
undertaken by the other, a promise to Massachusetts.—Church & Congre- give money to a duly incorporated gation in Second Precinct v. Stetson university under the control of a (1828) 5 Pick. 506 (overruled in Cot- church of which the promisor was a tage Street M. E. Church v. Kendall member, which subscription the uni(1877) 121 Mass. 528, 23 Am. Rep. versity accepted, assuming the obliga286).
tion of applying it to purposes for Michigan. Underwood v. Waldron which it was given, and made an an(1863) 12 Mich. 73; Comstock v. Howd nouncement of the gift, in the pres(1867) 15 Mich. 237.
ence and with the consent of the North Carolina.—Baptist Female donor, in a church convention, whereUniversity v. Borden (1903) 132 N. C. by others were induced to make sub476, 44 S. E. 47.
scriptions for the same purpose, is Ohio.-- Irwin v. Lombard University supported by a valuable considera(Irwin v. Webster) (1897) 56 Ohio St. tion within the definition above given. 9, 36 L.R.A. 239, 60 Am. St. Rep. 727, Baptist Female University v. Borden 46 N. E. 63.
(N. C.) supra. Pennsylvania, - Pierson's Estate But the Massachusetts court ex(1896) 6 Pa. Dist. R. 23.
pressly repudiated this rule in Cottage 38 A.L.R.-57.
Street M. E. Church V. Kendall Robinson v. Nutt (1904) 185 Mass. (Mass.) supra, stating that the sug- 345, 70 N. E. 198. gestion in the Stetson Case (Mass.) New Jersey.-New Jersey Orthosupra, that the fact that others have pædic Hospital & Dispensary V. been led to subscribe by another's Wright (1921) 95 N. J. L. 462, 113 subscription is a sufficient considera- Atl. 144. tion for the latter's contract was New York. - Dieffendorf
V. Reobiter dictum and inconsistent with formed Calvinist Church (1822) 20 elementary principles. And this rule Johns. 12; Stewart v. Hamilton Colhas been denied in other courts. lege (1845) 2 Denio, 403 (per Bockee, Methodist Orphans' Home Asso. V. Senator); Roberts v. Cobb (1886) 103 Sharp (1878) 6 Mo. App. 150; RE N. Y. 600, 9 N. E, 500; Keuka College GRISWOLD (reported herewith) ante, V. Ray (1901) 167 N. Y. 96, 60 N. E. 858. See also Presbyterian Church 325; Genesee College v. Dodge (1863) v. Cooper (First Presby. Church v. 26 N. Y. 215; Hammond v. Shepard Cooper) (1889) 112 N. Y. 517, 3 L.R.A. (1871) 40 How. Pr. 452; Reformed 468, 8 Am. St. Rep. 767, 20 N. E. 352, Protestant Dutch Church v. Hardensupra; Twenty-third Street Baptist bergh (1874) 48 How. Pr. 414; Re Church v. Cornell (1890) 117 N. Y. Conger (1920) 113 Misc. 129, 184 N. 601, 6 L.R.A. 807, 23 N. E. 177.
Y. Supp. 74. However, as pointed out in Irwin v. North Carolina.See Pipkin v. RobLombard University (Ohio) supra, the inson (1855) 48 N, C. (3 Jones, L) rule in Massachusetts is that one for 152. whose benefit a contract is made by North Dakota.-Thompkins v. Dinothers cannot maintain an action on nie (1911) 21 N. D. 305, 130 N. W. 935. it, for want of privity; and this, it is Wisconsin, La Fayette County said, accounts for the decision in the Monument Corp. v. Magoon (1889) 73 Cottage Street M. E. Church Case that Wis. 627, 3 L.R.A. 761, 42 N. W. 17. consideration for a subscription agree- On this theory a subscription to a ment cannot be found from the fact church debt fund on condition that that others have been led to subscribe the full amount be subscribed, to be to the same purpose on the faith of paid monthly for five years, and on the defendant's subscription.
the further condition that the current
expenses for each year be fully met 4. Accepting conditional subscriptions.
and not materially increased, except In a number of cases where sub- in case of unavoidable necessity, was scribers have expressed, in plain enforced against the subscriber's esterm, conditions on which donations tate in Robinson v. Nutt (1904) 185 are made, which require of the prom- Mass. 345, 70 N. E. 198. isee the performance of duties at- So, the agreement of a charitable tended with labor or expense, an ac- hospital that the amount pledged by ceptance of the donation, with the a subscriber, while constituting a consequent obligation to perform the part of the general fund of the insticondition, has been held to form a tution, would be devoted to the buildgood consideration for the subscrip- ing of an operating room which was tion.
to bear the name suggested by the Illinois. - Whitsitt v. Preëmption
Preëmption donor, and the further agreement by Presby. Church (1884) 110 Ill. 125. the donee to obtain a waiver, in the See also Kentucky Baptist Education donor's favor, of a similar privilege Soc. v. Carter (1874) 72 Ill. 247. of applying a subscription to the
Louisiana–Homer College v. Cal- building of the operating room, which houn (1877–80) Man. Unrep. Cas. 140. was in fact done, constitute legal
Maine.-Fryeburg Parsonage Fund consideration for the promise of the v. Ripley (1830) 6 Me. 442.
donor and renders the subscription Massachusetts Williams College agreement binding and enforceable V. Danforth (1832) 12 Pick. 541; against her estate. New Jersey OrThompson v. Page (1840) 1 Met. 565; thopædic Hospital & Dispensary v.
Wright (1921) 95 N. J. L. 462, 113 tion. Presbyterian Bd. of Foreign Atl. 144.
Missions v. Smith (1904) 209 Pa. 361, And the acceptance by the trustees 58 Atl. 689. of a parish fund, of donations to the A subscriber to a fund for securing fund, the income of which was to be the location of a college at a certain used for the support and maintenance place, on condition that a specified of the minister and to the payment of sum is raised, cannot avoid his subparish taxes which might be assessed scription by showing a deficiency in against the subscribers, which fund the amount raised after his subscripwas to be managed in a certain man- tion has been accepted as sufficient by ner, amounts to an undertaking on the the party establishing the college, part of the trustees to perform the when he was a leading spirit in the conditions of the donation and incur enterprise, knew the subscribers, and the necessary expenses thereof, and knew what was demanded. Rogers v. forms a good consideration sufficient Galloway Female College (1898) 64 to support the promise of each sub- Ark. 627, 39 L.R.A. 636, 44 S. W. 454. scriber. Fryeburg Parsonage Fund v. And a condition in a promise to Ripley (1830) 6 Me. 442.
contribute a certain sum of money So, a promise to pay a college a cer- towards the endowment of a profestain amount of money to be applied sorship, "when $20,000, including the for college purposes, accompanied by amount herein specified,” shall be a contemporaneous agreement stating raised for that purpose, is satisfied by that the promise had been made on the taking of notes or obligations of condition that the college should hold subscribers to that amount, for the its doors open upon all moral sub- result in such case is the same as jects, which was done, is based upon though money had actually been paid a sufficient consideration, for the in, since only the interest was to be agreement is evidence of a request by used in support of the professorship. the subscriber that the college per- Westminster College v. Gamble (1868) form certain acts. Hammond v. Shep- 42 Mo. 411. ard (1871) 40 How. Pr. (N. Y.) 452. Likewise, where one subscribes a
In University of Chicago v. Emmert certain amount, payable annually, for (1899) 108 Iowa, 500, 79 N. W. 285, the support of the minister in a cerwhere the balance due upon a sub- tain church as long as the minister scription towards the establishment remains the regular preacher thereof, of a college was allowed against the he is legally liable so long as the conestate of the subscriber, it appears dition is fulfilled; that condition is that the subscription was conditioned not breached by the action of one of upon a stipulated total amount being the ecclesiastical tribunals of the subscribed, and that that condition church in deposing the minister, had been met, although the court says
where afterwards, on appeal to the that where a subscription is in writ- highest tribunal, that decision was reing, and the signature is proved, con- versed. Dieffendorf v. Reformed Calsideration will be presumed.
vinist Church (1822) 20 Johns. (N. Y.) And where a subscription is made 12. to a mission board with the request And where a promissory note is that the money be used for the sup- given as a subscription to an educaport of work in a particular foreign tional institution, to be payable when field, the acceptance of such subscrip- a certain total amount is subscribed tion by the board on those conditions, to the endowment fund, or in full the sending of two missionaries to equal annual instalments, as the such field for the purpose of doing the maker shall choose, and where he does work stipulated in the subscription, not pay in annual instalments, and the and the refraining from any attempt four years have elapsed, and the sum to raise funds for the maintenance of stipulated has been subscribed, the the work in that field, constitute suf- beneficiary may recover on the note ficient consideration for the subscrip- without proof of notice that the sub
scription has been completed. Gene- the community in which he resides or see College v. Dodge (1863) 26 N. Y. is interested, something which will 213.
permanently enhance the
enhance the general In University of Chicago v. Emmert value of property in such community, (Iowa) supra, the balance due upon a or will elevate the moral or educasubscription towards the establish- tional standing thereof. On the other ment of a college was allowed against hand, the consideration may lie in the the estate of the subscriber, the court assumption of certain risks and the saying that where the subscription is
incurring of expenditures upon the in writing, and the signature is faith of the promise, on the part of proved, a consideration will be pre- the obligee. In either case, and a forsumed; but it appears in that case
tiori when the two are combined, the that the subscription was conditioned essence of the validity of the considupon a stipulated total amount being eration is found in the promise to pay subscribed, and that the condition had and the acceptance of the same." been met.
So, where a promissory note, payAnd in some cases it has been held able to a college, was made and acthat the execution and delivery of an cepted on a parol condition that the instrument by which the maker binds gift should go into and constitute a himself to contribute money to a permanent fund for the endowment of school or charitable enterprise, on the college as then organized, and for terms and conditions therein stated, no other purpose, and that the same, and the acceptance by the donee on together with similar donations therethose terms and conditions, afford after to be obtained, should never be ample consideration for the promise expended nor the aggregate sum lessto pay. Barnett v. Franklin College ened, the maker may set up as a de(1893) 10 Ind. App. 103, 37 N. E. 427; fense to an action on the note the Simpson Centenary College v. Bryan failure of consideration, based on the (1878) 50 Iowa, 293.
violation of the conditions upon which In Barnett v. Franklin College the agreement was made, by a dimin(Ind.) supra, where a bond, binding ishing of the funds in establishing a the obligor, her heirs, devisees, and law department for the college. Simprepresentatives, to pay a specified sum son Centenary College v. Bryan (Iowa) of money to a college to be used as supra. And a similar conclusion was the capital stock of the institution, reached in Simpson Centenary College the principal to be loaned on real es- v. Tuttle (1887) 71 Iowa, 596, 33 N. tate, and the interest to be used for W. 74, involving like facts. current expenses, was held to be based
5. Location of institution. upon a valid consideration, when accepted by the obligee, and binding Subscriptions made for the purpose upon the estate of the obligor, the of securing the location of an insticourt said: “The principle upon tution at a certain place become legalwhich promises of the character of ly binding and enforceable upon the those embraced in the present case acceptance of the subscription by the are held to be valid is the reciprocal representatives of the institution, and undertaking on the part of the prom- the location thereof at the place desisor to pay, and the promisee to per- ignated. Rogers v. Galloway Female form something of value to the prom- College (1898) 64 Ark. 627, 39 L.R.A. isor, though the value may only be 636, 44 S. W. 454; Owenby v. Georgia of indirect benefit to the latter, such Baptist Assembly (1911) 137 Ga, 698, as the obligation in the present case 74 S. E. 56, Ann. Cas. 1913B, 238; that the appellee will hold and apply Chambers v. Baptist Educational Soc. the funds promised in compliance (1841) 1 B. Mon. (Ky.) 215; Doyle v. with the terms of the contract. The Glasscock (1859) 24 Tex. 200. benefit to the promisor to be derived A subscription made for the purfrom the performance of the promise pose of securing the location of a colmay consist in the introduction into lege at a particular place is something more than a subscription to public cated on the southwest section of the charity; it carries with it the request tract named in the plaintiff's subthat the college be located at that scription, the court in Schuler v. place, and thus denied to all other Myton (1892) 48 Kan. 282, 29 Pac. places; and the granting of this re- 163, held that the defendant's liability quest means the expenditure of money on his subscription could not be enupon that place, and the bestowal of forced, where the college was located a real benefit upon the subscriber. in accordance with the terms of the Rogers v. Galloway Female College plaintiff's subscription, but not on the (Ark.) supra.
particular section named in the deAnd a binding contract is made by fendant's subscription, although the a subscription to secure the location defendant had orally promised to pay of a college in a certain town, when the amount of his subscription notthe required amount is subscribed, withstanding the change, there being the subscription accepted, and the col- no legal consideration for this new lege located in that place, while promise, though it was admitted that agencies are constituted and put to the defendant was morally bound to work to carry out the enterprise. Ibid. pay.
So, where the trustees of a denomi- And the fact that a church ennational school propose that, if the deavoring to raise money by subscripcitizens of a certain community will tion for the purpose of erecting a new subscribe a stipulated amount, they church building has borrowed money will locate the school at that place, in advance of the maturity of the payand subscriptions are made on that ment of the subscription for the purbasis, the location of the school is the pose of erecting a new church, will consideration which induces the sub- not make the promise of a subscriber scriptions, and, if that part has been binding upon him, where the subscripperformed, there can be no pretext for tion upon condition that the denying liability on the subscription church should be erected at a desigcontract on the ground of a failure of nated place, and it was erected at a consideration. Chambers v. Baptist different one, inasmuch as the church Educational Soc. (1841) 1 B. Mon. had no right to set aside the contract (Ky.) 215.
and make a new one without the subIn Rothenberger v. Glick (1898) 22 scriber's consent. Rothenberger v. Ind. App. 288, 52 N. E. 811, it was
Glick (Ind.) supra. said that a promise by a church which was raising money by subscriptions
6. Preaching the Gospel. for the purpose of erecting a new In some cases it has been held that church building, to erect it upon a the preaching of the Gospel is a suffidesignated tract of land, would be a cient benefit to furnish consideration valid consideration; in that case it for a promise to contribute by subwas held that a subscription upon scription to a fund for the support of such condition could not be enforced, the ministry; at least, where the subwhere the church building was erect- scriber is a member of the sect raising ed at a place other than that desig- the fund. Somers v. Miner (1833) 9 nated in the subscription agreement. Conn. 458; Woodworth v. Veitch
But where the plaintiff agreed to (1902) 29 Ind. App. 589, 64 N. E. 932; guarantee the payment of a sum of First Religious Soc. v. Stone (1810) 7 money and the conveyance of land to Johns. (N. Y.) 112. a proposed college on condition that Thus, a subscription reciting that the college should be located on a cer- the signers, being members of a retain tract of land, and the defendant, ligious society and desirous of raiswho would be beneficially interested ing a salary for the support of a minby a location of the college in that ister in the society, do, in order to vicinity, subscribed and agreed to pay carry this desire into effect, promise the plaintiff a certain amount of and covenant, each for himself, indimoney, provided the college was lo- vidually and severally, to and with the