Gittings v. Mayhew

Tuck, J., delivered the opinion of this court. It is not necessary to express an opinion upon all the pro — 130 — positions presented by this record.- But, as some of them are particularly interesting to the community in which this contest arose, it is proper, after the full consideration they have had by counsel, that they should be decided.- We pass by the objections made to the generality of the first prayer, in view of the act of 1825, eh. 117, because, if they availed against that prayer, the point on which the judgment must be reversed is presented distinctly by the fourth prayer,, and also by the second, if, (as- we think- we should in this case,) the- court discard the strict grammatical construction placed upon it by the appellee’s counsel, and give to it that interpretation which we have no doubt it received in the trial below. The questions we propose to consider are, as to the validity of agreements like the present, and the proper party to enforce them. It was insisted-, on the part of the appellant, that the plan and terms of the-agreement are so vag.ue and uncertain, that the law will not recognize any obligation to pay this money. In other words, that they do not amount to a contract in law. And, first, it is said that the term. “ Atheneum”'conveys to the mind no definite idea, and that the alleged contract is void for the want of a sufficient and certain'subject.. We are not to determine questions of this kind according to the uses to which such buildings were devoted among the ancients. The meaning of this term was well known among the- Greeks and Romans as designating a public place where professors of the liberal arts held their assemblies, rhetoricians declaimed, and poets recited. In modern days, however, the name has- been frequently bestowed upon establishments- connected- with literature, science, and the arts, whether devoted to one or more branches of learning. There are many such institutions in this country. Probably no two of them are the same in origin, design or government, yet each, looking to its character and object, may very appropriately be called an Atheneum. We do not consider this a sufficient objection to the validity of the subscription. It was also urged, that even if the term “Atheneum” be sufficiently definite, there was no consideration- for the agree — 131 — ment. The effect of undertakings of this kind has been considered in many of the courts of this country; they have not been always enforced, but where the actions have failed it has been, generally, on some purely technical ground, and not because such promises were deemed merely gratuitous, and not the subject matter of suits at law. In some cases the courts, in furtherance of what they deemed a recognized public policy, have felt themselves warranted in relaxing, to some extent, the rigor of the common law, and have held the subscribers liable, when, perhaps, upon strict principles, there was not a legal consideration for the contract. The maintenance of such institutions is certainly of the highest merit. 'Whether projected for literary, scientific or charitable purposes, they address themselves to the favorable consideration of those whose success in life may have enabled them, in this way, to minister to the wants of others, and at the same time promote their own interests, by elevating the character of the community with whose prosperity their fortunes may be identified. Indeed, considering the number of these institutions, erected and maintained by private munificence alone, the cases are very rare in which subscribers have refused compliance with their engagements. Instances may occur in which parties, feeling themselves released in consequence of a failure of expectations reasonably entertained at the time of making the subscription, might avail themselves of legal defences without justly forfeiting the good opinion of those who embarked with them in the enterprise. The propriety, however, of employing such means of resisting payment the parties must determine for themselves. Upon that portion of the present case, therefore, so much contested at the bar, we decline expressing any opinion. In whatever uncertainty the law concerning voluntary sub- ; scriptions of this character may be at this time, in conse- \ quence of the numerous decisions pronounced upon the subject, it appears to be settled,jtliat where advances have been made, or expenses or liabilities incurred by others, in consequence of such subscriptions, before notice of withdrawal, — 132 — this should, on general principles, be deemed sufficient to make them obligatory, provided the advances were authorized by a fair and reasonable dependence on the subscriptions. 1 Parsons on Contracts, 378. Story on Contracts, sec. 453. The decisions have certainly gone to this extent — • many of them much further — in sustaining actions on such agreements, as the cases cited in the argument show. The doctrine is not only reasonable and just, but consistent with the analogies of the law. We cannot doubt that the present appellant made himself responsible for the amount claimed, according to this view, of the law. The parties to the plan agreed to pay, when a certain amount should be subscribed, in instalments to be required by the building committee. That amount was subscribed, instalments were called in from time to time by the committee; they made contracts, and under their authority and management, and in reliance upon the good faith of the subscribers, the Atheneum was completed. Having by his signature, authorized others to enter into engagements for the accomplishment of the enterprize, the law requires that he should save them harmless to the extent of his subscription. But here a question arises as to the right of this plaintiff to sue. This branch of the subject has elicited much discussion. The cases referred to, without asserting a principle, have generally been decided according to their peculiar circumstances, the plaintiffs having been required to bring themselves within the principles heretofore indicated as governing actions of this character. If in some, as was contended, recoveries have been had in the name of parties possessing no stronger claim to sue than the present appellee, it is to be observed, also, that in others equally as favorable, the right has been denied. Without particularly examining the authorities it may be remarked, that in those cited on this point, in behalf of the plaintiff below, the defendants had agreed to pay their contributions to the plaintiffs, as the party named in the agreement, or afterwards selected in the manner therein indicated for the purpose of receiving the. money; or the — 133 — plaintiffs had, by causing the proposed work to be done on their means or credit according to the reasonable intent of the agreement and in reliance on the subscriptions, made the defendant liable to them for the amount subscribed; and especially in those cases where the party charged had acted on the agreement or acquiesced in what the plaintiffs had done under it. 20 Johns., 89. 11 Mass., 118. 3 Pick., 322. 6 Pick., 427. 1 Metcalf, 565. 6 Do., 315. 14 Mass., 172. 3 Scammon, 199. 3 Barr., 416. We cannot perceive that the appellee is within the reason of the rule applicable to such cases as these. If there had been no act of incorporation, the right to sue would have been in the building committee, as the persons authorized by the agreement to call in the payments, and, as their office imported, to make contracts and do all else that was necessary for the erection of the proposed building, which office they had performed. It is true that the appellee was named in the lists as the treasurer, but the building committee was also designated in the lists, and, moreover, they were expressly named in the agreement, and thereby recognized by the parties, as the persons authorized to call in, control, and disburse the funds. Besides, there was a committee on collections also named, and if either person or class of persons became entitled to sue, merely by the fact of having been named in the lists prefixed to the agreement, there is no more reason for clothing the treasurer with this authority, by implication, than there was for assigning it to the committee on collections as part of their duty. It was contended that the resolution of the building committee of the 8th June 1848, authorized the appellee to sue for the recovery of the subscriptions. In this we do not concur. The committee might have appointed other collectors, and as many as might have been deemed necessary, but such appointment would have made them only agents to collect and not necéssarily have clothed them with power to sue. We cannot consider the appellant in any other character than as the custodiary of the funds, with power to disburse them upon the orders of the committee. There was — 134 — a manifest propriety in placing his name with the others on the lists, because, as this enterprize was to depend on private munificence, it was important that the persons who might be solicited to subscribe, should know that the execution of the plan was to be confided to persons of character and standing. We presume it was the design of this arrangement to challenge the confidence of the community, and induce them to subscribe, not to designate the treasurer as the party with whom the contributors were entering into a contract. Whether the subscribers were liable after the charter was obtained, and on -whom the right of action devolved, would depend on their agency in procuring the charter, or on their having assented thereto, or acquiesced in the proceedings of the corporators, looking to the consummation of the plan originally contemplated by the subscribers. This view of the case is fully discussed in Limerick Academy vs. Davis, 11 Mass., 113, where, as we think, the law is announced on correct principles. The objects proposed by the friends of this institution, as imposing on all the parties a high moral obligation, were forcibly presented in answer to the legal defences set up by the appellant. It too often happens that judgments according to the law do not subserve the purposes of justice. But this the courts have no power to remedy. It is safer that a private right should fail, or a wrong go unredressed, than that settled principles should be disregarded in order to meet the equity of a particular case. Not finding any warrant in the law for sustaining this action in the name of the appellee, the judgment must be reversed without procedendo. Judgment reversed and procedendo refused.