49 Cal. 347 | Cal. | 1874
There was a sufficient consideration to support the defendant’s promise. We think the correct rule is stated in Watkins v. Evans (9 Cush. 539). If “a number of subscribers promise to contribute money on the faith of the common engagement, for the accomplishment of an object of interest to all, and which cannot be accomplished save by their common performance, then it would seem that the mutual promises constitute reciprocal obligations.” (Thompson v. Page, 1 Met. 565; Ives v. Sterling, 6 Met. 310; McAuly v. Bellinger, 20 John. 89.) And that, too, though the subscription be to a corporation thereafter to be formed. (Eastern P. R. Co. v. Vaughn, 20 Barb. 157; P. & S. P. R. Co. v. Griffin, 21 Barb. 454.) But there was a variance between the contract declared upon and that proved at the trial. The complaint alleges a promise to the corporation plaintiffs, and the promise proved was to the “Finance Committee, to be elected hereafter by the Christian Church of Santa Rosa.” If it be true, as insisted by the plaintiff, that on the formation of the corporation all the property and funds of the proposed college vested by operation of law in the corporation, the facts should have been stated in the complaint, so that it might appear on its face that though the promise was made to the committee, the right of action had passed by operation of law to the plaintiff. But the averment of a promise to the corporation is not supported by proof of a promise to the Finance Committee. The objection to the admission in evidence of the subscription, as the pleadings now are, should have been sustained.
Judgment and order reversed, and cause remanded for a new trial.
Neither Mr. Justice Rhodes nor Mr. Justice McKinstry expressed an opinion.
