Trustees of Berkeley Divinity School v. Jarvis

Dutton, J. Bishop Williams and other prominent Episcopalians wished to establish a Divinity School in this state. To accomplish this object, and also to secure the location of it in Middletown, EdwinS. Hall promised to advance §20,000, and the defendant Jarvis §10,000, with the understanding that subscriptions to the amount of §40,000 in the whole were to be procured. The promise of Mr. Jarvis was made with the knowledge that'Hall had promised §20,000, and was induced in part by the knowledge of that fact. The promise was. made in writing, and put into the hands of the bishop to enable him to procure other subscriptions. Relying upon it he subscribed [420] himself and procured subscriptions from others. Jarvis was then possessed of a large estate, but he became insolvent before the mortgage deed described in the petition was given. Relying upon the subscriptions which had been obtained, the bishop and others applied to the legislature of this state, and obtained an act establishing a corporation by the name of the Berkeley Divinity School. It was authorized to organize the institution whenever $40,000 were raised, and not before. This amount was secured by using the subscriptions of Hall and Jarvis to induce others to subscribe. The amount was raised and the institution organized. Apartments for the use of students were rented and professorships and lectureships with salaries established. Mr. Hall paid half of his subscription by a deed of land to the corporation. Mr. Jarvis recognized his promise as a promise to the corporation, by taking the office of treasurer of the corporation, and paying for several years the interest on his subscription. The defendant French is a creditor of Jarvis. The liability to him was incurred after the subscription, but before the mortgage to secure it was given. French has levied an execution on the land embraced in the mortgage, claiming that the deed was void against him as a creditor of Jarvis. The petitioners have raised a question whether French was a bona fide creditor. It is unnecessary to examine that point, as we are clearly of the opinion that the mortgage deed is valid against creditors of every description. The respondent French insists that the promise of Jarvis to pay the $10,000 was without consideration, and consequently that the mortgage deed was in the nature of a mere gift. If this claim is correct both the promise and the mortgage would of course be set aside in favor of the levy of a bona fide creditor. But we are satisfied that there was a sufficient consideration to sustain the validity of the promise. We have recently had the subject of the sufficiency of considerations before us in the case of Rice v. Almy, 32 Conn., 297. In the first place, here were mutual dependent promises. It was understood that Jarvis was not to become liable unless [421] other promises to pay, to the extent in the whole of $40,000, were obtained. Such a consideration has repeatedly been held to be sufficient. George v. Harris, 4 N. Hamp., 533; Amherst Academy v. Cowls, 6 Pick., 427. The doctrine has been denied by a modern author of high standing. 1 Parsons on Contracts, 454. It is unnecessary to rely upon it in the present case, for it is well settled that where advances have been fairly and reasonably made or liabilities incurred by others in consequence of a voluntary subscription for a charitable purpose, the subscription will be binding. 1 Parsons on Cont., 458; Bryant v. Goodnow, 5 Pick., 228. In University of Vermont v. Buell, 2 Verm., 48, the defendant had with others signed a subscription to aid in erecting college buildings.- The corporation of the college, relying upon the subscriptions, commenced erecting the college buildings, ahd the court held that the defendant was liable on his subscription. The analogy between that case and the present is very striking. Relying to a great extent without doubt on the subscription of Jarvis, the friends of the new institution devoted time and incurred expense in procuring a charter from the legislature, and subsequently the corporation, which •now brings this suit, organized the school, contracted for apartments for the students and became liable for the rent of the same, and established several professorships and lectureships with certain salaries attached thereto. Here are all the elements of a good consideration. Jarvis allowed his promise to remain unrevoked, although knowing that the corporation was parting with what was valuable on the strength of it. Here would be a loss to the promissee if- the promise should not be enforced. It has been suggested that the finding shows that the corporation has already received payments to the extent at least of all the expenses which it has yet incurred, and therefore it would sustain no loss. But this would be too strict a construction of the language of the finding. From the nature of the case professorships and lectureships are not temporary, and must be regarded as still existing. If they [422] were not to last for a period of years the school could not be said to be established. We have made no allusion to the importance and public benefit of such institutions and of this in particular. They have always been justly regarded by courts with favor,. The present case- needs no aid from such considerations. The petitioners are to be regarded as bona fide creditors. As Jarvis could have been compelled to pay this subscription, he had a perfect right to secure it. It is immaterial whether he was at the time of giving the mortgage insolvent or not. If it was giving a preference to the petitioners, advantage could be taken of it only by proceedings under the insolvent law. We advise a decree in favor of the petitioners. In this opinion the other judges concurred.