278 N.W. 497 | Neb. | 1938
This action was brought by the plaintiff against the defendant, Henry F. Eilers, to recover upon a subscription to the St. John’s Lutheran Church of Sterling, Nebraska. The trial resulted in a judgment in favor of the plaintiff. From this judgment, the defendant appeals. .
The facts, so far as material to the question here presented, are substantially as follows: During the year 1929, St. John’s Lutheran Church, through its proper officers, undertook to secure subscriptions to. .provide the necessary funds for the building of a new church. The defendant signed a note payable to the church in the amount of $1,000, payable in ■ instalments, which contained the condition that “this agreement is not valid unless a sum total of $30,000 has been signed.” The note was subsequently assigned to
It is of course necessary that conditions precedent contained in a subscription contract be complied with in order to bind the subscriber. Whether or not a condition precedent has been complied with is tested by the situation existing at the time it is sought to enforce the subscription, not by that existing at the time of the signing of the instrument, in the absence of a specific limitation to the contrary in the subscription agreement. Owenby v. Georgia Baptist Assembly, 137 Ga. 698, 74 S. E. 56; Irwin v. Lombard University, 56 Ohio St. 9, 46 N. E. 63.
Subscription contracts are favored in law as calculated to foster public and quasi-public enterprises. As a matter of public policy, the courts are desirous that subscribers should not evade their deliberate promise of contribution, and their tendency therefore is to adopt such a rule as will sustain the subscription as a legal obligation. Pass v. First Nat. Bank, 25 Ala. App. 519, 149 So. 718; 25 R. C. L. 1398, sec. 4.
A literal compliance with a condition precedent is not required. Where there has been a substantial compliance, a recovery may be had. 60 C. J. 964. In the case at bar,
The facts disclose that the church has been built according to the original plan. The purpose of the undertaking has been accomplished. The necessary consideration to make the subscription note a binding agreement is therefore existent. The condition precedent was substantially complied with and the defendant cannot now evade his promise to pay the amount that he subscribed to the enterprise. The trial court was right in entering judgment for the amount found due on his subscription note'. The judgment is
Affirmed.