Janes v. Trustees of the Mercer University

17 Ga. 515 | Ga. | 1855

By the Court.

Benning, J.

delivering the opinion.

As long as the plea, puis darrein continuance of Geo. W. West remained undisposed of, he continued a party to the suit. That plea was Dot disposed of ^when he was offered as a witness. He was therefore, when offered as a witness, a party to the suit.

[1.] And a party to a ’suit is not a competent witness for himself.

It does not appear that the payment of the salaries of Sanders and Burney was at all dependent on the result of the suit. Eor aught that appears to the contrary, the interest of the fund already in hand was sufficient to pay them their salaries. It does not appear, therefore, that they were to gain or to lose anything by the verdict, go as it might.

[2.] And unless interest be made to appear in the person offered as a witness, it is to be presumed that interest does not exist.

[3.] It does not appear that Thomas Gr. Janes heard the representations made by Mallory and the other agents of the Mercer University, that the sums which might he subscribed were to constitute a fund to support a manual labor school. But unless he heard those representations and acted on them, it is manifest that they can constitute for him no ground of*defence.

One of the requests to charge was as follows: “ If the note was procured by representations that this was to be a manual labor institution and he subscribed upon that representation, and the manual labor department was abolished, it was a fraud on his rights, and the defendants are not bound to pay.”

Fraud vitiates all contracts — much more will fraud vitiate-all mere donations. Fraud may consist in false representations. (1 Story’s Eq. §191.) To make a misrepresentation fraudulent, Story says: “the misrepresentation must be of something material — constituting an inducement or motive to the act or omission of the other party, and by which he is actually misled to his injury.” (§195 Story’s Eq. Id. §191.)

Now if the manual labor feature in a manual labor school be not a material feature of such a school, it is difficult to say what is. It is the feature of such a school.

[4.] When, therefore, on application to one for a donation to such a school, a representation is made to him that the school is to be a manual labor school, the representation is one of a material kind. If, therefore, the representation be acted upon and a donation made, and then the manual labor part of the school be abolished, an injury, by means of the false representation, is inflicted on the donor. He is deprived of his money. The transaction amounts to a fraud on him.

■ Numerous analogies to frauds of this sort are to be seen in the cases of part performance of contracts which are within the Statute of Frauds. One party, after he has allowed the other party to perform a contract which is forbidden by the Statute of Frauds, is not permitted to plead that Statute as an excuse for not performing the contract on his part. And why ? because, to permit him so to plead the Statute, would be to permit him to perpetrate a fraud on the other party. The subsequent matter of a disposition or offer to plead the Statute is considered as having relation back to the time of the making of the contract, and to be evidence of an original intention to deceive; an original intention to use the Statute as an engine of fraud.

So, here, the abolition of the manual labor branch of the school, subsequently to the time of procuring this donation, may be considered as having relation back to that time, and as being evidence tending to show an intention then existing, to effect the abolition of that branch, by means of representation that it was to be permanent, should have been made to subserve a purpose — that of procuring donations to the school.

And that these representations were not put in the writing, made no difference. Parol evidence is admissible to show fraud in the procuring of a written contract. No rule is better eslished than this. (3 Phill. Ev. (notes) 1475.)

This request, then, in the opinion of this Court, was proper; and the Court below should have charged, in accordance with it.

I incline, myself, very much, to think that if, at the time when this subscription was made, the Mercer University, for whose use it was expressly made, was a manual labor school, the subsequent abolition of the manual labor department was, of itself, sufficient to release the subscriber from his subscripturn. In such a case the subscription, by its very terms, would be for the use, alone, of that which was a manual labor school. How, then, according to the strict terms of the contract, could the subscription be called for to be applied to any other use than that of a manual labor school ?

How is such a ease to be distinguished from that of Winter vs. The Muscogee Rail Road Company, (11 Ga. R.) In that case, the corporation, after obtaining Winter’s subscription for a portion of its stock, changed the course of the road without Ms consent. And it was held that this released Winter from Ms subscription. Should a person who is a voluntary contributor to a corporation, be in a worse situation than one who is ■a contributor for value; that is, for stock in the corporation ? I do not see why he should be.

Be this, however, as it may, this Court is of opinion, that taking the representations into the account, the Court below should at least have given the request aforesaid, already noticed, in charge to the Jury. And therefore, it is of opinion that there should bo a new trial.