Richmondville Union Seminary & Female Collegiate Institute v. Brownell

[537] By the Court, Miller, J. I do not think that the complaint demurred to can be considered as presenting one of that class of cases within the principle which holds that a voluntary donation for the endowment of a literary institution is void for want of consideration. In the case of The Trustees of Hamilton College v. Stewart, (1 Comst. 581,) in which it was held that there was no consideration for the subscription, and that no action would lie, there was no engagement on the part of the plaintiff, or of any other person, to do' or forbear to do any thing as a consideration for the promise of the defendant, and no request by any of the subscribers that the plaintiff should do any thing. It was conceded by Justice Gardiner, who delivered the opinion of . the court, that if the agreement had furnished evidence of a request to the plaintiff, by the defendant, to perform certain services, in consideration of which he promised to pay them the sum subscribed by him, the right of the plaintiff to the subscription money would have been unquestionable. In Limerick Academy v. Davis, (11 Mass. Rep. 113,) the action was upon a subscription very similar to the one in 1 Comst. 581, and the court held “ that it was a promise to give, connected with a similar promise of others to give, for that same purpose; at most it was a donation, to come into operation at the will of the subscriber.” In Bridgewater Academy v. Gilbert, (2 Pick. 578,) it was a mere naked subscription to a fund for rebuilding an academy, and the court held that the subscription paper alone would not sustain the action. In neither of the last two cases was there any evidence to show a request, or that the defendants had knowledge that the trustees were incurring the expenses, upon the faith of the subscription, or that the defendants sanctioned their acts or induced them to incur the expenses. Neither of the cases cited are similar to the one now under consideration. Here there is an averment of a consideration. The case may be properly stated thus: The defendant and others were desirous of completing the building, and requested the [538] plaintiff to complete the same; and for the purpose of enabling the plaintiff to do so, the defendant - subscribed and agreed to pay the plaintiff the sum of two hundred dollars, in consideration of which he was to receive from the plaintiff eight shares of the capital stock of the Eichmondville Union Seminary and Female Collegiate Institute. The expenditure was incurred, and the work done, to the defendant’s knowledge, and by his consent and approval. The defendant was in fact a subscriber for eight shares of the capital stock of the company, which gave him rights and privileges as a share holder, and which shares the corporation \Vere bound 1 to issue for the amount of his subscription. This was a sufficient consideration to sustain the agreement. It appears to me that the allegations in the complaint show a promise on the part of the plaintiff to complete the building. The object and design of the subscription was for this purpose ; and it is averred that in pursuance of said object the defendant subscribed and agreed to pay the sum of two hundred dollars, for which he was to receive eight shares of the stock. The subscription was accepted and received with at least an implied promise that the object should be carried out. There are, however, cases which hold that the consideration for a promise may consist in the inconvenience, disadvantage ór harm incurred by the promisee. Where some detriment or injury has arisen by reason of the express or implied promise of the defendant, it is a sufficient consideration to sustain the promise of the latter. Gratuitous promises may be enforced, where they have operated to induce engagements or liabilities, within the knowledge of the promissor. Incurring expenses, and assuming liabilities in consequence of the promise, is regarded as a sufficient consideration. (See Barnes v. Perine, 9 Barb. 211, 212, and authorities there cited,) The complaint in this case was that the plaintiff, upon the faith of the subscription, promise and agreement of the defendant, expended money and incurred liabilities, and that this was done with the knowledge, consent and approval [539] of the defendant. This expenditure was a detriment • to the plaintiff, which would constitute a sufficient consideration. . I am inclined to think that the subscription paper, as cset forth in the complaint, shows a request. The building was to he erected. The defendant desired it completed, and agreed to pay a certain sum towards it. This involved a request to proceed with its erection. The averment of the defendant’s consent and approval (which I think is intended to be before and at the time the work was done, and not afterwards,) is also sufficient to show at least an implied request to the plaintiff. The other objections taken to the complaint cannot he sustained; and upon the whole I am of the opinion that this complaint can be upheld, within the principle laid down in Barnes v. Perine, (9 Barb. 203; 15 id. 247 ; 2 Kern. 18.) See also The First Religious Society in Whitestown v. Stone, (7 John. 112;) McAuley v. Billinger, (20 id. 89;) Hamilton and Deansville Plank Road Co. v. Rice, (7 Barb. 157.) [Albany General Term, March 3, 1862. In accordance with- this view of the case, the same questions have been substantially raised and decided by the general term of this district in the case of The same plaintiff v. John McDonald, jr. The judgment of the special term must he affirmed with costs, with leave to the defendant to amend upon- the usual terms. Mogeboom, Peckham and Miller, Justices.]