Hutchins v. Smith

By the Court, Miller, J. The subscription paper signed by the defendant contained an express agreement to pay to the persons designated therein as trustees the sums subscribed, and a request to purchase land and to erect thereon a suitable building and fixtures for an academy. In accordance with its terms and the request therein contained, proceedings were taken to purchase the lot, to -make expenditures, to incur liabilities, and to erect the building. The defendant himself was an active participator in all these proceedings, until nearly the whole amount fixed as the sum required had been subscribed. He drew the original subscription paper, solicited some subscriptions, in connection with two other persons who were associated with him as members of the buildipg committee, made a written contract for the purchase of the lot, and took the deed of the lot to himself and his associates, as said committee. The subscription paper itself contained a request, and upon the faith of the promise by the subscribers to pay, expenditures were made and the academy built and organized. The defendant was clearly liarble, within the principle decided in several adjudicated cases. (Barnes v. Perine, 9 Barb. 202. 15 id. 249. 12 N. Y. Rep. 18. The Wayne and Ontario Collegiate Institute v. Smith, 36 Barb. 576. Richmondville Seminary v. Brownell, 37 id. 535. Van Rensselaer v. Aikin, MSS opinion general term, 3d district.) The plaintiff’s right to recover is objected to upon the ground that the defendant had a right to revoke his promise at any time before the $2500 was subscribed; and until that condition had been complied with, the other parties had no right to expend money, incur liabilities, or to do any act to bind the defendant. The defendant-, soon after the first of October, gave strong intimations that he was unwilling to go on unless the cost of the structure was limited to the subscriptions, and between - that time and the 14th of October some small expenses were incurred towards the construction of the building. On the [240] 14th of October he gave -a written notice, to the building committee and trustees, to the effect that he was unwilling to continue a party to the enterprise, and afterwards refused to act as trustee, The subscriptions at this time amounted to $2450. I think that the notice, and the unwillingness of the defendant to proceed, were not sufficient to exonerate him from liability. As no time was fixed within which the amount provided for was to be raised, and as the amount was increased, within a reasonable time after the notice, to $4000, it entirely obviated this objection. But if there may by possibility he any question as to the force of the suggestion last made, a conclusive answer to this position of the defendant is, that the defendant himself was actively engaged in soliciting and encouraging subscriptions and in promoting the enterprise. The evidence shows that he incurred liabilities, united with his associates in • contracting for, and in purchasing, the lot upon which to erect the building, and the brick, with a fell knowledge that the $2500 was not sub- ■ scribed, These acts were a waiver, I think, of the condition in the subscription that $25,00 must be subscribed to make it binding, and estop him from asserting it as an objection to a recovery in this action. As he fully sanctioned what was done prior to any expressions 'of dissatisfaction, he certainly has no right to complain. (Smith v. Gugerty, 4 Barb. 623, Ref. Prot. Dutch Church v. Brown, 17 How. 288. Betts v. Perine, 14 Wend. 219. Plumb v. The Cat. Co. Ins. Co., 18 N. Y. Rep. 394.) The alleged revocation was made after liabilities had been incurred and some money expended, and as the remarks already made cover that aspect of the pase, I do not deem it necessary to discuss the effect of a revocation after the full amount intended had been subscribed. ¡Nbr do I regard it as important to consider the effect of Howland’s (one 'of the trustees) acts prior to the service of the notice and-after the defendant had expressed his dissatis [241] faction, with the proceedings. As it is apparent that the defendant was a prominent actor in the enterprise, lending to it his aid and encouragement, so that prior to his attempt to withdraw, much had been done towards its successful prosecution, and he waived the condition as to the 'amount of the subscriptions, no good reason exists why he should not be made liable. I have examined the several requests made by the defendant to the referee to find additional facts besides those incorporated in his report, and I have arrived at the conclusion that he correctly refused to find as requested. I think that the first was not material, even if warranted by the eyidep.ce. The second is not so entirely clear as to the facts, as to authorize the finding requested. The third, fourth, and fifth are immaterial, and unimportant. The sixth, to the effect that when Smith served the written notice, on the 14th of October, 1859, only $2450 had been subscribed towards the erection of the academy, had already been found. The seventh also was immaterial, as it did not rest in the power of the defendant, who had only acquired an interest for the benefit of the subscribers and as a trustee, to insist that the conveyance of such interest should discharge him from the payment of the subscription. He had no right tot exact any such condition, and if acquiesced in, it was not6 obligatory. The eighth request was not authorized by the facts, as the grantees had no agent who was vested with power to discharge the subscription. The ninth and last was also immaterial. The trustees never accepted the defendant’s proposition, and were not obligated to object to it. I have also examined the several requests to the referee to decide as conclusions of law, and I think that some of them were well founded. Several of these propositions—the first, second, third, fifth and sixth'—are in conflict with the grounds upon which the referee’s decision and the plaintiff’s right to recover is based, and the views already expressed. [242] They were, I think, clearly erroneous. The fourth was properly refused, because there was no proof that Harris was the agent of the grantees to procure the signature of the defendant to it, He was only employed to draw the deed. [Albany General Teem, December 4, 1865. The seventh was not warranted upon any principle of law or equity. The defendant had voluntarily resigned his position as a trustee, and had no cause for complaint because his resignation was accepted. As to the eighth and last, I think that the action was properly brought in the name of the trustees, .who were the real parties in interest. It follows from these observations that the judgment entered upon the referee’s report must be affirmed, with costs. Sogebom, Peclcltam and Miller, Justices.]