David v. Chambers

Kirby, J., (after stating the facts). It appears that suits were brought separately against several different subscribers and that they were consolidated for a hearing. The demurrer questions the capacity of the plaintiffs to sue and challenges the sufficiency of the complaint, .alleging- that it does not state facts sufficient to constitute a cause of action. The complaint alleges that the defendant agreed to pay the Retail Merchants Association the amount subscribed per month for the benefit of the said -association, and such other dues as might be assessed by said association; and-that-the plaintiffs, with others, signed and promised, in the same contract, certain sums set opposite their names, and that relying upon the promises made in the contract by the defendant, the plaintiffs carried out their contract for payment and incurred expenses in reliance upon said promise, and with others- incurred liability in paying the expenses of the association and other expenses incident to and in furtherance of said'association’s interest and benefit. It appears well established that voluntary subscriptions, when considered alone and unsupported by any other element, are unenforceable, being merely a gratuitous promise to furnish a sum of money for designated purposes. 1 Elliott on Contracts, sections 227, 228. The same writer at section 229, says: Voluntary subscriptions are upheld on the ground that one gratuitous subscription is the consideration for another. “In many cases, it is stated, that when several agree to contribute to a common object, which they wish to accomplish, the promise of each is a good consideration for the promise of the others. ’ ’ The writer then says, this is too broad a statement of the rule, and concludes “unless the promises are given in consideration of each other they do not constitute a contract. ’ ’ See also 1 Parsons on Contracts, 489-493; Miller v. Ballard, 46 Ill. 377. The complaint sufficiently alleges that the subscriptions were voluntarily made at the .same time and given in consideration of each other. The allegations are, further, that plaintiffs, who were members of the voluntary association, for the benefit of which the subscriptions were all made, had relied upon the faith thereof and made expenditures for the association and incurred-liability by paying its debts in reliance thereupon, and sufficiently stated a cause of action. Since all the signers who had paid their subscriptions were made parties plaintiff, and also brought the action for the Retail Merchants Association, for the benefit of which the subscriptions were made, the action could be maintained. The defendant could not again be compelled to pay the subscription at the suit of any one else and can not complain that he is required to do so at the suit of the voluntary organization, for whose benefit the subscription was made .and of the other subscribers who had paid their subscriptions and incurred liability for the association in reliance upon the subscription and contract of the defendant to pay in consideration of the promises -made by them. The court erred in sustaining the demurrer and its judgment is reversed and the. cause remanded with'instructions to overrule the demurrer -and for further proceedings according to law.