Swain v. Hill

Ellison, J. The sole question is, does the statement show a cause of action in plaintiffs? There is no doubt that the validity of a subscription depends upon the law of contracts, i. e., it must have a payor and payee and be based on a consideration. Whether the mutual subscriptions of each subscriber are sufficient consideration for the promise of each, is a question in many cases, but is not necessary to- consider here, for the reason that the statement in this case not only alleges the several subscriptions, but that upon the faith of such subscriptions large amounts of money, [443] work, and labor were expended. In such case there is-no conflict that the consideration is ample. And “ the liability is not disputed by any authority.” Underwood v. Waldron, 12 Mich. 73, 89. But it is urged against this action that there is no payee in the alleged contract of subscription. This we do not believe to be an insuperable objection when considered in connection with the entire statement. It appears the subscribers were mutually interested as public-spirited citizens in the enterprise contemplated," and for the purpose of carrying out the object in view, they' appointed a committee, defendant being a member ■ thereof, to survey, locate, and begin the construction of the road; that afterwards another committee, consisting of these plaintiffs, was appointed to take charge of the enterprise and construct the road. The plaintiffs, as such committee, proceeded under this appointment to-locate and construct the road. In my opinion they became the trustees or agents for the entire body of the subscribers to carry out the object of the subscriptions. The fact that they have, in instituting this suit, stated that they sue for themselves as well as the other subscribers, is of no importance and such statement may be disregarded. All objection that plaintiffs were not the agents or-trustees at the time of the subscription has been cured by matters occurring since. It may be admitted that in. order to have a binding promise there should be a promisee ; but here after the appointment of the plaintiffs as-agents they proceeded to expend money and labor upon the road, and other subscribers, including the county court, upon the faith of the subscriptions, paid over the sums subscribed by them, and this without objection from defendant, and so, though the original promise be-not binding for want of a promisee, it has become so by the action of the parties since. The subscription remaining unrevoked, any action taken on the faith thereof by the subscribers or their agents, should, on the principle of estoppel, preclude-defendant from denying the validity of their acts. , [444] In the case of Bryant v. Goodnow, 5 Pick. 228, no one was named as payee in the subscription paper, but the subscribers afterwards met and appointed an agent, ■as in this case, who, as was done here, expended money .and labor'on the faith’of the subscription, and it was held that an action for the money laid out and expended ■could be maintained to recover the amount of the subscription. In the case of Trustees of Farmington Academy v. Allen, 14 Mass. 172, there was no payee mentioned, but the subscriptions were to be paid “to such persons as shall or may be by the legislature appointed trustees.” Trustees being afterwards appointed and money expended on the faith of the subscriptions, an action was held maintainable. The case is decided without mention •of the subscription providing for the appointment of trustees by the legislature, but rather as assuming that no one was named as payee. So in the case of Griswold v. Trustees of Peoria University, 26 Ill. 41, “the subscribers agree to pay the sums set opposite our respective names,” etc., not mentioning a payee, and it was held that the subscription could be collected, money and labor having been expended on the faith thereof. Cases involving subscriptions to corporations, not yet in existence, are numerous, and it is held that if the subscriptions were not binding in the first instance, they became so, on action being taken in reliance upon them. Hamilton v. Rice, 7 Barb. 157; Stanton v. Wilson, 2 Hill, 153; Shober's Admr's v. Lancaster Co. Park Ass'n, 68 Pa. St. 429; Edinboro Academy v. Robinson, 37 Pa. St. 210; New Lindell Hotel Co. v. Smith, 13 Mo. App. 7. I am satisfied a cause of action is alleged and that the motion to dismiss should have been overruled. The judgment is, therefore, reversed and the cause remanded. All concur.