Comstock v. Howd

Christiancy J. This was an action brought to recover the amount of a subscription of the defendant, which was in the following words: “We, the undersigned, citizens of Ithaca and vicinity, agree to pay the several sums set opposite our respective names, for the purpose of furnishing a free dinner on the 4th of July to the returned soldiers and their families; also to the widows and orphans of deceased soldiers of Gratiot County.” This was signed by the plaintiff and defendant and twenty-five other persons, with an amount in figures opposite the name of each; the amount opposite that of the defendant being ten dollars. The defendant objected to the introduction of the subscription, because, I: No cause of action is alleged in the declaration, and, 2: That no payee is named in the subscription. This objection was overruled and the evidence admitted. Plaintiff was also allowed to prove, against defendant’s objection, that said celebration was held, the dinner provided and partaken of by the returned soldiers and their families, and by the widows and orphans of the deceased soldiers; and that plaintiff, at a meeting held (June 19th) for the purpose of raising the funds for the above purposes, was elected a treasurer to receive and disburse the funds raised for the purpose, and that he was made the chairman of a committee to raise funds for those purposes by subscription, and had paid for the dinner. It is claimed by defendant’s counsel that the only ground upon which the plaintiff could recover, must be that he had, in reliance upon the subscription, incurred and paid the expenses; that his declaration which is special, not containing the common counts, does not place his right of action upon this gi’ound, but merely upon the liability created by the subscription itself and, therefore, [243] that it shows no right of action, and that all the evidence of payment by plaintiff, as well as his appointment to raise, receive and disburse the funds, was inadmissible. It may be admitted that the evidence of the plaintiff having paid the expenses of the dinner, or become liable to pay, was mere surplusage. We think such was the fact. The declaration does not alleg'e such payment or the incurring of any liability by the plaintiff, but bases his right of action upon the subscription, and the facts that defendant and divers other persons had designated him “as a proper person to raise such sum of money by subscription, and make all necessary disbursements,” all which was agreed to by such persons and accepted by said plaintiff; that defendant, for the carrying on of said purpose, became indebted to the plaintiff in the sum of ten dollars and promised to pay when requested; foi*which he refers to the subscription on file as a part of his declaration. Under the liberal rules of pleading in justices’ courts we think the declaration sets forth substantially all the facts necessary to a good cause of action, and that it was fully sustained by the proof, as found by the judge. The subscription itself, together with the appointment of plaintiff to raise the money by subscription, to make all necessary disbursements, and his acceptance of the position constituted a valid contract between the defendant and the plaintiff. The designation of the plaintiff, as the person to raise and disburse the funds, places the subscription on the same ground as if his name had been inserted in it as the payee. It was held in Thomas v. Dodge, 8 Mich. 51; and Nevius v. Bank of Lansingburg, 10 Id. 547, that the guaranty of a promiábory note need not name the promisee, and that it becomes definite and fixed when any one takes it upon the guarantor’s credit. This is a very usual mode of drawing up a subscription, and we [244] must suppose the subscribers expected and intended to pay to some party appointed for the purpose of receiving it: and in legal effect the promise, we think, is to pay to the person who shall be thus appointed. We see no difficulty upon the question of a consideration. The object was a meritorious one, for which people generally are willing to expend money, and which, therefore, “must be regarded as worth money when it is promised.” (Underwood v. Waldron, 12 Mich. 90.) Beyond this also the subscription of the defendant must be looked upon as an inducement to others to subscribe and pay their money, in reliance upon the payment to be made by each of the other subscribers; none of whom would be so likely to subscribe or pay, but for this reliance, as without it they would not expect the attainment of the common object. Thé* judgment of the court below must, therefore, be affirmed, with costs to the plaintiff. Campbell and Cooley JJ. concurred. Martin Ch. J. did not sit.