Trustees of Troy Conference Academy v. Nelson

The opinion of the court was delivered by Isi-iahJ J. This action is brought to recover the amount of a subscription made by the defendant to enable the Troy Academy to pay off its debts. The existence of the plaintiffs as a corporation, as set forth in their declaration is not disputed, and no suggestions are made by the defendant that his subscription was obtained by unjust or improper means, or that the trustees of that Institution do not design in good faith, to appropriate the money to the purposes and objects for which it was givens The only matter of defense to which our attention has been • directed, is the want of a legal consideration to sustain the promise. It is, stated in the case, that this Institution was deeply in debt. That a necessity existed for raising the sum of $20,000 from among its patrons and friends in, order to protect and preserve the property for the purposes and objects for which it was established. And that for the purpose of' raising that amount, this subscription paper was circulated, and those measures adopted by the trustees of that Institution, which were deemed necessary and important for the attainment of that object. As the result of their exertions, we find that the whole sum was-raised that was necessary by the terms of the instrument to render it binding on the various subscribers. It is obvious, that in raising that amount, there was, among the various subscribers to that fund, a community of interest and feeling, that the Institution should be enabled to prosecute the purpose of general instruction for which it was incorporated. That the subscription of one for that object, induced and influenced the exertion and subscription of others, is evident from the consideration that no obligation of payment was intended to have been created thereby, unless the whole sum of twenty thousand dollars was raised by the 1st of January, 1844. "When the defendant, therefore placed his name to that subscription, with the sum he appropriated to that object, he contracted a two-fold relation, first, to the Institution itself, and in the second ¿dace to those with whom he had subscribed for that object. In his relation to the Institu — 193 — tion, it was an expression of his desire that the object should be accomplished, and if not expressed in form, it was equivalent to an express request, arising from the very nature of the transaction, that such exertions should be made and continued by the trustees, as were necessary for its final accomplishment, and justified those expenses and disbursements oii their part, which were made, and were necessary to insure their final success. And in relation to other subscribers, the common object they had in view was to raise that full amount to relieve the Institution from its embarrassment and debts. For this reason an express provision was made that no obligation of payment should arise, unless that full amount was raised by a given time. This gave, to each subscriber, an interest in the subscription of the other. If any were inoperative it affected the entire subscription, for to that extent their common object had failed. If any have paid their subscription, it will be a manifest fraud upon them, if other subscribers are permitted to avoid payment of theirs, for such payment has been made for an object that has failed, and which would have been avoided if they had complied with their promise and subscription, and the Institution is left under the same embarrassment and debts that existed before such payments were made. Whether wc consider, therefore, the relation which each subscriber bears to the others, or to the Institution itself, we think that the defendant should be estopped from making such defense, or denying the obligation of his contract, for it operates alike fraudulent]}- upon each. If the trustees of that Institution could have anticipated such a defense, surely they would not have been to that labor, expense and disbursement to which they were subjected, in order to obtain j the subscriptions. Nor would the co-subscribers have taken their respective obligations upon themselves, only in a reliance upon the good faith of the several subscriptions, and that thereby that amount would be paid, and the Institution be relieved from its embarrassment. We can hardly conceive of a case where the doctrine of estoppel has a more just and equitable application. For it is of the very essence of such estoppel “ that a party shall not “ be permitted to contradict an act which operates as a fraud on “ his part, or as an injury to others, whose conduct has been in- ■“ fluenced thereby.” 2 Smith’s Lead. Cas. 561, and cases there cited. Nor was it ever designed, in saying that a party may avoid — 194 — an improvident contract by showing that no consideration existed therefor, that that principle should ever become an instrument in the hands of one, for the commission of fraud upon others. But a sufficient consideration we think, is readily found in the case. A legal consideration may consist in Ibss, damage or inconvenience, sustained by the party to whom th4 promise is made, or of benefit or advantage to the party promising. The amount of the consideration is unimportant, nor is it necessary, in this State, that it should appear upon the face of the ^contract or agreement, as it may be proved by testimony aliunde.'¡ The consideration for this agreement is found in the obligation imposed uporn and assumed by the Trustees of this Academy to see to, and make the' application of this money as directed by the subscribers to this | fund, so as to enable this Institution to prosecute its duties of pub-, lie instruction, for which it was incorporated, thus rendering this I assumed liability and promise, the consideration of the promise of the other. To create this obligation upon this corporation or its trustees, it was not necessary that the instrument should have been signed by them, for that obligation arises from the acceptance of those subscriptions for that purpose, and which can be enforced at law and in equity. This was so expressly decided in the case of Patchin v. Swift, 21 Vt. R. 292. The court there say “ that the accepting and adopting a written contract by. a party, “ who has not put his name to it, binds such party equally as if he “ had signed such contract.” And this must be considered as settled in this State, whatever may have been decided in the case of Hamilton Coll. v. Stewart, 1 Coms. R. 582. If that obligation rests upon the trustees of this Academy, and was created by obtaining and accepting these subscriptions, that it constitutes a sufficient consideration to sustain the promise of the defendant, is clearly sustained by the case of Amherst Academy v. Cowls, 6 Pick. R. 433. In that case the obligation was given for the support of indigent pious young men, and the consideration upon which it rested was the obligation of the trustees or the corporation to make such application. And this obligation was created not by having signed an agreement of that character, but arose, as in this case, from having accepted the subscription under those provisions. Upon the objection being made, that the agreement was without consid-' eration, the court remark: “ That it was quite sufficient to create — 195 — “a consideration, that the payee should have assumed an obligation “in consequence of receiving the note which he was compelled either “ at law or equity to perform, and if by means of bis contribution, “ or solemn promise to pay, tlie body to whom he has pledged his “word should encounter expense, become under legal obligations, “ or otherwise pursue the intent and purpose of the legislature in “granting them the charter, this is a sufficient legal consideration “to support such a promise. In this respect the principles of “ common honesty cannot be at variance with the law of the land.” And upon a review of the authorities upon this subject, the court further say, “ That we do not find that it has ever been decided ’ “that where there are propers parties to the contract, and the “promise^is capable in law of carrying into effect the purpose for “which the promise was made, and is in fact amenable to law for “negligence or abuse of Ms trust, such a contract is void for want “ of consideration.” This seems to be now the settled doctrine in Massachusetts upon subscriptions .of this character. In Dartmouth College v. Woodard, 4 Cond. U. S. Rep. 547, Ch. J. Marshall, speaking of contributions and subscriptions of this character, says, “That the consideration for which they stipulated is the “perpetual application of the fund to its object in the mode pre- “ scribed by themselves.” And upon this ground the case of McAuley v. Billinger, 20 John. R. 89, was decided. A. different rule was adopted in the case of Hamilton College v. Stewart, 1 Comp. R. 582, and yet the principles adopted in that case, when applied to the rules fully established in this State, will here sustain a recovery on such subscriptions. The action was on, a subscription to raise a fund'for the use of the College. Xhe first count was founded on mutual promises, and it was held that no recovery could be had on that count, for the reason, that the corporation had not executed the agreement and had not undertaken to appropriate the fund to the purposes designated. If they had executed the agreement, or. if there had been an undertaking which could have been enforced to appropriate the fund as they designated, the subscription would have been binding and the consideration sufficient as founded on mutual promises. That an obligation of that character does rest upon this corporation and its trustees, and. that courts of law and equity will enforce that obligation, is sustained by the case of Patchin v. Swift, — 196 — to which, we have referred. And where that obligation exists, that case is a decided authority, that such subscriptions are legally binding. Their consideration rests upon mutual promises, and this view of the subject was taken by Chancellor Walworth in all the cases arising under the Hamilton College subscriptions. The second count proceeded upon the ground that the subscription furnished evidence of a request that the plaintiffs should perform those services necessary to secure the amount of the fund. And the court properly remark, “ That if that is the true con- “ struction, the right of the plaintiff to the subscription money is “ unquestionable.” That that is a true construction of this agreement, and that such a request arises out of the very nature of the transaction we have considered. And this view of the subject is taken by Ch. J. Nelson. 2 Denio Rep. 403. In the case of Patchin v. Swift, the court remark, “ That it is well settled, that “ a consideration may be inferred from the terms and obvious im“port of a written contract when it is not distinctly alledged and “ set forth in the contract itself as a consideration.” If this subscription had been signed by the corporation and contained a stipulation on their part to malee the application of the fund as subscribed, of if it contained a request by the defendant for the plaintiffs to continue their exertions until the fund was raised, no one would question the legality or sufficiency of its consideration. And yet, that is the legal effect and operation of the instrument itself. All that, “is to be inferred from the terms and obvious import of this contract.” These principles have in various instances been recognized in New Hampshire, and the promise of each has been held to be the consideration for the promise of the other. George v. Harris, 4 N. Hamp. R. 533. Society in Troy v. Perry, 6 N. Hamp. R. 164. Chitty on Cont. 46. n. (1.) The cases in this State have been uniform in giving a legal obligation to such contracts or subscriptions. In the case of The University of Vermont v. Buell, 2 Vt. R. 48, the cases upon tins subject were generally reviewed, and Ch. J. Williams, in the case of the State Treasurer v. Cross & Day, 9 Vt. R. 293, speaking of the case in the 2d of Yt. R. observes, “that from that case it appears that such contracts are not* “void for want of a consideration.” And in both cases a recovery was had on similar subscriptions. We think, therefore, the — 197 — defendant is responsible on this subscription, and that a legal consideration exists to sustain it. The judgment of the county court must therefore be reversed.