North Ecclesiastical Society v. Matson

Carpenter, J. The questions reserved by the Superior Court for our advice will be considered in their order. 1. “ What is the legal effect of the conditions annexed to the subscriptions of Messrs. Ives and Dunham, and has the condition in the contract upon which it was to become operative been complied with, so as to render the defendant liable to pay his subscription ?” The substance of this question is, as we understand it, shall the subscriptions of Messrs. Dunham and Ives be considered as subscriptions to the paper signed by the defendant, and the sums subscribed by them estimated as a part of the sixty thousand dollars required ? We think this question should be answered in the affirmative. It appears that on the very day on which this subscription paper bears date, there was a meeting of the society, of which the defendant was a member, and at that meeting it was voted to appoint a committee to purchase the lot of Mr. Dun-ham on the terms proposed by him, namely, “ for twenty-seven thousand dollars, towards payment of which, and the cost of erecting a church edifice and lecture room thereon, said Dunham agrees to subscribe the sum of ten thousand dollars ; the purchase of said lot being further conditioned, that within thirty days from this date a sum not less than sixty thousand dollars, including the amount subscribed by Mr. — 34 — Dunham as above stated, shall be raised by voluntary subscription for the aforesaid purpose of purchasing said lot and building thereon.” The subscription paper was drawn up in consequence of this vote, and for the purpose of carrying it into effect. The vote in terms makes the subscription of Mr. Dunham a part of the sum required. Whether the defendant was present at this meeting or not does not appear, nor is it material. He was a member of the society, and, under the circumstances, must be presumed to have had knowledge of its proceedings in this respect. He signed the paper then with the understanding that the sum of sixty thousand dollars required, should include the subscription of Mr. Dunham. Besides, it appears upon the face of the paper that it was for the purpose of purchasing this lot, and erecting a church edifice thereon. All the subscriptions therefore contemplated this purchase. Mr. Dunham’s subscription, like most of the others, was unconditional. Neither that nor the others could be used for any other purpose. The society allowed him to pay his subscription by deducting it from the purchase money. In this we see nothing objectionable, as it does not appear that either the society or the defendant sustained any injury thereby. There is nothing then in this transaction of which the defendant can complain. In respect to the subscription of Mr. Ives there is more difficulty. But we think, on the whole, that the condition attached to that ought not to prevail as a defense to this action. The condition is in these words: “ conditioned that no bell shall ever be put on the church.” It must be conceded that this condition varies the terms and substance of the instrument so far as his subscription was concerned. Strictly speaking therefore the paper subscribed by him was not the same as that subscribed by the others. If there was nothing else in the case it would be difficult to answer this objection. But the society, by implication at least, ■agreed to the condition imposed. On the first day of July they purchased the lot. In September following they appointed a building committee, who went forward and erected — 35 — a lecture room and laid the foundations for the walls of the church. They would hardly have done this if they had not considered that the amount required by the terms of the paper had been subscribed. As his subscription was needed to make up that amount, by accepting it they necessarily agreed to the condition. But more than this, on the 14th day of March, 1866, the society, after reciting by way of preamble that Mr. Ives had subscribed three thousand dollars upon the express condition that no bell should be used on tlie church for the period of twenty years, voted to accept the subscription upon those terms. It further appears that the sum of three thousand dollars referred to in the vote includes the sum of one thousand'dollars originally subscribed by Mr. Ives, and the sum of two thousand dollars subscribed by him to the last named writing. From this it would seem that the condition attached to the original subscription was subsequently modified somewhat, and, as modified, was expressly accepted and agreed to by the society. All this time the defendant was a member of the society, and it does not appear that he objected to tlieir action at any stage of tlie proceedings; but on the contrary, when called upon to pay his subscription, promised to do so when convenient. Every other subscriber, including Mr. Ives, paid his subscription. The society, upon tlie credit of this fund,, and relying upon its being paid in good faith by all the subscribers, and without objection from the defendant, proceeded to incur the expense of erecting this church. To excuse him from paying his subscription for the reason claimed would operate as a fraud, not only upon the society, but upon the other subscribers. We think therefore, under all the circumstances, that we ought to hold that the defendant has waived any objection to tlie validity of his subscription, growing out of the condition attached to the subscription of Mr. Ives. 2. The next question is, whether the evidence objected to by tlie defendant was legally admissible. In the first place, it is claimed that tlie writing on which the suit is brought is inadmissible, for the reason that it fails — 36 — to show a consideration for the defendant’s promise. The question of consideration will be discussed more fully under the next head. The question is not now how much the writing proves, but whether it is admissible as proving, or tending to prove, any part of the plaintiffs’ case. The writing is the only legitimate and proper evidence to prove the defendant’s promise. Whether the promise was operative, or otherwise, is quite another question, and quite unimportant in this connection. We think it was admissible, not only for the purpose just indicated, but also, in connection witli the vote of the society, and the other circumstances of the case, for the purpose of proving the consideration alleged. In the next place, the other papers, in the same words, but found in different books, were objected to on the ground that the subscriptions thereto were, in no proper sense, subscriptions to the original paper. Much that is said on the subject of Mr. Ives’s subscription is applicable also to this part of the case. But we do not rest the decision of this point upon that ground, for, independently of those considerations, we think the evidence was admissible for the purpose of proving that sixty thousand dollars had been subscribed. The object and language of the three papers were precisely the same. The substance of the thing was, to raise a fund for the purpose of building a church. It was intended that all the subscribers to that fund should, in substance, enter into the same obligation, and with the same party. That was done. The circumstance that three papers were prepared, instead of one, is not of the slightest importance. The objection is purely technical, having neither substance nor merit. The defendant also objected to the admission of the last paper, dated April 15,1865. We think it was only admissible in connection with the vote of March 14th, 1866, and for the purpose of explaining it. For that purpose it was admissible. 3. The third question reserved is, what judgment ought to be rendered in the cause ? That presents the question of consideration. The defendant’s promise being proved, and it being shown that the condition on which it was to become operative had been complied with, it only remains to inquire — 37 — whether there was a sufficient legal consideration for the promise, alleged and proved. The first count in the declaration sets out three distinct and independent considerations. 1. Other subscriptions and promises evidenced by the writing. 2., Various good and valuable considerations of increased prosperity and usefulness of the society of which the defendant was a member. 3. In consideration of the promise and undertaking of the plaintiffs to purchase land and erect church buildings thereon. In regard to the first of these, it is objected that the declaration does not state what the other promises and subscriptions are. It appears from this count that the paper declared on was a subscription paper, and that it had for its object the erection of a house'of worship. The objection therefore can only have reference to the fact that the names of the other subscribers are not disclosed. We cannot think that this is necessary. We can understand clearly from the declaration that the consideration, in this respect, is limited to the subscribers to this particular fund. A knowledge of the names of the other subscribers is in no sense required, in order to enable the court to understand the nature and effect of the consideration. This allegation is fully proved by the papers offered in evidence, and it would seem from the case of Berkeley Divinity School v. Jarvis, 32 Conn., 412, that it was sufficient; but we have no occasion to decide that point and do not wish to be understood as expressing any opinion upon it. The same objection is made in respect to the second consideration ; that the “various good and valuable considerations of increased prosperity and usefulness ” of the society should be specified. That could not easily be done. It has reference to the then future usefulness and prosperity of the society generally. It was expected and designed that the enterprise in which they were then engaged would result in placing the society in a better condition to accomplish its mission and do good. The declaration states that the society was organized for the object and purpose of promoting and sustaining public worship. The allegation of increased prosperity and usefulness has reference to the object and purpose — 38 — for which the society was organized. We cannot see that the defendant would be benefited by a specification of the particular acts of usefulness, if that were possible, nor that he will be injured by an omission to state them. We think therefore that .the declaration is sufficiently explicit in this respect. This allegation also is fully sustained by the evidence, and we think it is sufficient. This point was expressly decided in Somers v. Miner, 9 Conn. R., 458, and we see no reason to question the authority of that case. The remaining consideration alleged, the undertaking of the society to purchase the lot and erect the buildings thereon, is clearly proved, not by the subscription paper alone, but by the contemporaneous vote of the society. They voted to purchase the lot and erect the buildings thereon, provided the sum of sixty thousand dollars should be subscribed for that purpose. Thereupon the subscription paper was prepared, and subscriptions made thereto, for the sole purpose of placing the society in a condition to carry the vote into effect. The relation of the two documents to each other, and the dependence of the one upon the other, are apparent. It is difficult to conceive of a clearer case of mutual promises, whore the undertaking of one party is the consideration of the promise of the other. But there is another view of this case which is equally conclusive against the defendant. This subscription was made for the purpose of promoting and sustaining a charitable object of the highest importance. The society, upon the strength of this and the other subscriptions, and relying upon their being paid in good faith, went forward, fairly and reasonably, and made advances and incurred expenses for the benefit of the charity. It is too late for the defendant to claim successfully that his subscription is not binding. Berkeley Divinity School v. Jarvis, 32 Conn. R., 412. We are of the opinion that a sufficient consideration is alleged and proved, and that the plaintiffs are entitled to judgment. The Superior Court is advised accordingly. In this opinion the other judges concurred.