9 Barb. 202 | N.Y. Sup. Ct. | 1850
The counsel for the defendant, in his motion for a nonsuit, made the following points, viz.: 1. The action, if sustainable, should have been brought, either in the corporate name of the church, or in the names of the persons who were trustees at the date of the subscription; or in the names of the building committee. 2. The undertaking of the defendant was void for want of a consideration. 3. Being void when made, it could not become a valid contract by means of the subsequent acts of the building committee, in erecting the church, or in making contracts for that purpose.
' __If a mistake has been made in the names of the plaintiffs, it is -not a ground of nonsuit. Such mistake could, on the trial, and - can now, be corrected by an amendment. (Code, § 173.) The moneys subscribed, were subscribed for the benefit of the religious corporation, and belonged to such corporation. The corporation was the equitable if not the legal owner of the same. Being the real party in interest, the suit should have been brought in its corporate name. (Code, §§ 111, 173. Fisher v. Ellis, 3 Pick. 325. 1 John. 139. 2 Denio, 417. 19 Wend. 424.) If the mistake is merely a mistake in the name of the corporation, the only remedy of the defendant was by a plea in abatement. (2 R. S. 454, § 14.)
■ The principal question in the cause is whether the promise of the defendant was void for want of a consideration. The defendant relies on the case of Hamilton College v. Stewart, (1 Comst. 581,) as sustaining his proposition that the promise is void. In that case the defendant and others, as subscribers, bound themXselves to pay to the trustees of Hamilton College the sums set
The present case is in short this. The deféndant requested the corporation or its agents, to build the new church edifice, and
The instrument signed by the defendant may be regarded as merely a promise to pay $150, provided the trustees of the church would build a new house of public worship. Such a promise Judge Gardiner says would, according to the cases, amount to a request to perform that service, and the defendant would be liable. (1 Comst. 585, 6.) The subscription paper may at least be allowed to perform the office of fixing the amount of the defendant’s liability; he having made himself liable to the corporation by Ms request and direction to its agents to erect the ■ church. It is not necessary that a consideration should exist at | the time a promise is made. Thus if A. promise B, to pay him * a sum of money if he will do a particular act, and B. does the act before the revocation of the promise, the promise thereupon ’ becomes binding, although B. does not at the time of the promise, : engage to do the act. Intermediate the promise and the performance of the act the obligation of the promise is> suspended.
(Train v. Gold, 5 Pick. 384. Chit, on Cont. 29, 30. 20 Pick. 467. 11 Mass. Rep. 117. Story on Cont. § 380 a, 381. 17 Maine Rep. 305.) The doing the act is a good consideration for the previous promise; and the promise amounts to a request to do the act. (1 Comst. 585, 6.) Although in tMs case it should be held that the defendant has, in contemplation of law, derived no benefit from the erection of the church, he is nevertheless liable in this action, because a prior request to build the church has been proved. (1 Chit, on Cont. 62.)
If the decision of the court of appeals in Hamilton College v. Stewart had not been made, I should have been inclined to hold
The agreement of the defendant may, I think, also be regarded as an offer or proposition, and the building of the church as an acceptance of such offer or proposition. There are many cases which hold that gratuitous promises mayTie enforced, where they have operated to induce engagements and liabilities,' within the knowledge of the promiser. (Story on Cont. § 453, and cases cited.) Incurring expense and assuming liabilities in consch quence of the promise, is regarded as a sufiicient consideration! for the promise. (12 Mass. R. 190. 14 Id. 172,176. Under hill v. Gibson, 2 N. Hamp. R. 352. Amherst Acad. Cowles, 6 Pick. 433, per Parker, Ch. J.) In Amherst Acad. v. Cowles, Parker, Ch. J. ruled that if by means of a solemn promise to pay, the body to whom the promisor has pledged his word should^ encounter expense or assume legal liabilities, this was a sufficient legal consideration to support such a promise; and the promiser had no right to withdraw his contribution after the execution or during the progress of the work which he himself set in motion. Upon the principle of these cases the present action could be sustained against the defendant. The plaintiffs, or their agents, in consequence of the promise of the defendant and the other subscribers of the subscription paper, and relying on the payment of their subscriptions, proceeded, with the knowledge of the defendant and of the other subscribers, to incur expense and assume liabilities in the erection of the new house of
Hone of thecases in our courts, or of those in the supreme court of Massachusetts, cited on the argument of the case of Hamilton Col-lege v. Stewart, conflict with the view which I have taken of the present case.
In the cases of Limerick Academy v. Davis, (11 Mass. R. 113,) and of Bridgewater Academy v. Gilbert, (2 Pick. 578,) which were cases of naked subscriptions toa fund, in the one suit for erecting, and in the other for rebuilding an academy, the defendants had not taken any part in the subsequent proceedings of the corporation; nor done any act which sanctioned the acts of the trustees, or induced them to incur expenses on the faith of their subscriptions, or which recognized and confirmed their original promise. And there was in those cases no evidence that the defendants had any knowledge that the trustees were incurring expenses in consequence, and on the faith of their subscriptions. It was for these reasons that in those cases, the defendants were held not to be liable on their promises. In the case of Limerick Academy v. Davis, Ch. J. Sewall says that if the defendant had concurred in the subsequent proceedings of the corporation, and had enjoyed the advantages of a member of the corporation, the corporation would have been entitled to the benefit of his subscrip
The facts, in this action, make out a much stronger case in favor of a recovery than those in the case of McAuley v. Billenger, (20 John. 89.) In that case it did not appear that the defendant attended the meeting of the society at which the plaintiffs were appointed a committee to receive subscriptions, and to contract for the repair of the church, or did any other act than that-of signing the subscription paper, which sanctioned the acts of the meeting, or which induced the committee to incur expenses ■on the faith of the subscription, and to proceed in repairing the church. And the court in that case held that the mere act of signing the subscription, after the meeting, sanctioned the acts of that meeting in resolving to make the repairs; and recognized the authority of the- committee to contract for such repairs.
In Amherst Academy v. Cowles, (6 Pick. 427,) the defendant had, after his subscription to a charitable fund for the classical education of indigent pious young men, given his promissory note for the amount of his subscription; and it was held that the giving of the note was a sufficient recognition and confirmation of the defendant’s promise, and that the note was founded on a sufficient consideration. In the First Religioits
The decision of the court of errors in Hamilton College v. Stewart, (2 Denio, 403,) settled no principle. A majority of the members of the court voted to reverse the judgment of the supreme court, on diverse and different grounds. And it does not appear that a majority agreed as to any one ground of reversal.
For the reasons hereinbefore stated, I am of opinion that the verdict of the jury in this case ought to stand; and that the plaintiffs are entitled to judgment thereon.