Underwood v. Waldron

• Decision Date: 05 December 1863
• Citation: 12 Mich. 73
• Court: Michigan Supreme Court
• Parties: George W. Underwood v. Henry Waldron and others

12 Mich. 73

George W. Underwood v. Henry Waldron and others

Supreme Court of Michigan

December 5, 1863

Heard July 10, 1863; July 11, 1863. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Branch Circuit.

Henry Waldron, Chauncey W. Ferris and Allen Hammond brought suit against Underwood in assumpsit, the declaration containing two counts, in substance as follows:

First count: For that, on January 26, 1853, the defendant, the plaintiffs, and certain other persons, were desirous of erecting a college building in or near the village of Hillsdale, for the benefit of themselves severally, and the defendant, in consideration thereof, and for the purpose of effecting said object, and in consideration that certain persons named did subscribe their names to the following agreement: "We, the subscribers, severally promise to pay the sums set opposite our respective names, to the order of Henry Waldron, Chauncey W. Ferris and Allen Hammond, for the purpose of purchasing land, or erecting a college building in or near the village of Hillsdale, for the use of the Michigan Central College; dated Fayette, January 26, 1853;" and did each set opposite their names, thereto subscribed, certain sums of money specified, and in consideration that certain other persons would subscribe their names to the said agreement, and would set opposite their names certain sums of money, to be paid as therein specified, the defendant did subscribe his name thereto, and promise to pay the plaintiffs $ 1,000, as follows: $ 250 in four months; $ 250 in eight months; $ 250 in twelve months, and $ 250 in sixteen months; that other subscribers to said instrument, who are named, did subscribe thereto in consideration, among other things, of the defendant's subscription; yet that although the persons so subscribing have paid the amounts by them subscribed, and the plaintiffs have paid out and expended all the moneys paid them, in erecting said college building; and said building has been erected, and a large amount of indebtedness has been incurred on the faith of said subscription in erecting said college building, and plaintiffs have at all times been ready and desirous to use and expend the amount so subscribed by defendant for the purpose of paying such indebtedness; yet the said defendant refuses to pay, etc.

Second count: Sets forth the subscription in the same manner; avers that afterwards, on July 1, 1853, defendant had paid $ 200 of the amount subscribed by him, and the other subscribers had also paid a large amount, in all $ 5,000, which had been expended in erecting a college building; that the Michigan Central College decided not to use the building when completed, of which the defendant had notice; that afterwards, on January 2, 1854, in consideration that the several other subscribers did then and there renew their said promises and undertakings, "he, the said defendant, undertook, and then and there faithfully promised the said plaintiffs to perform and fulfill the said agreement in writing, in all things on his part and behalf to be fulfilled and performed, and to pay the balance of the aforesaid sums of money, so subscribed by him as aforesaid, at the times aforesaid, to the said plaintiffs." And although other subscribers named have paid the amounts subscribed by them, and plaintiffs have expended all the moneys so paid them in erecting said college building, and the college building has been erected; and although a large amount of indebtedness has been incurred in erecting the same, and plaintiffs have at all times been ready to use and expend the amount so subscribed by defendant for the purposes of erecting said building and of paying such indebtedness; yet the defendant refuses to pay, etc.

Plea, the general issue.

The cause was tried by the Circuit Judge without a jury, and the following is his finding of facts:

"That on the 26th day of January, 1853, the defendant and Chauncey W. Ferris, William Waldron, Hewitt & McCollum, Henry Waldron, and certain other persons at the village of Hillsdale, were desirous of erecting a college building, in or near the village of Hillsdale, for the benefit of themselves severally.

"That the said defendant, for the purpose of effecting said object and in consideration that the said Chauncey W. Ferris William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, would subscribe their names to the agreement in writing, set out in the plaintiffs' declaration, to wit: 'We, the subscribers, severally promise to pay the sums set opposite our respective names to the order of Henry Waldron, Chauncey W. Ferris, and Allen Hammond, for the purpose of purchasing land, or erecting a college building, in or near the village of Hillsdale, for the use of the Michigan Central College. Dated Fayette, January 26th, 1853.'

"And would set opposite their respective names, thereto subscribed, $ 1,000, payable as follows, viz: $ 250 payable in four months, $ 250 in eight months, $ 250 in twelve months, and $ 250 in sixteen months, from the date thereof. And, in consideration that certain other persons would subscribe their names to the said agreement in writing, and would set opposite their respective names, thereto subscribed, certain sums of money, to be paid at certain times therein mentioned, the said defendant, on or about the 26th day of January, 1853, did subscribe his name to the said agreement, in writing, and did set opposite his name, thereto subscribed, $ 1,000, payable as follows, viz: $ 250 in four months, $ 250 in eight months, $ 250 in twelve months, and $ 250 in sixteen months from the date thereof.

"That, at the same time, the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, each subscribed their names to the said agreement in writing, and each set opposite their respective names, thereto subscribed, $ 1,000, payable at the same time, and in the same amounts, with the amount so as aforesaid subscribed by the said defendant.

"That the said defendant and the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, and Henry Waldron, at the time they subscribed said agreement in writing, as aforesaid, did actually agree with each other that they would each subscribe $ 1,000 to said agreement in writing, as aforesaid, and would pay the same, in consideration that each of the others would subscribe the same amount to said agreement, payable at the same time, and would pay the same. And that the subscription of each, as aforesaid, was the inducement for the subscription of all the others.

"That at the same time the said defendant subscribed said agreement in writing, as aforesaid, and within a short time thereafter, certain other persons subscribed their names to the said agreement in writing, and to duplicates thereof, and set opposite their names, thereto subscribed, certain sums of money, amounting, in the aggregate, to the sum of about $ 12,000. That many of the other persons who subscribed said agreement did so in the presence of said defendant, and at his request, and in consideration that he had signed it as aforesaid.

"That the purpose for which said subscriptions were originally made, was for the purchasing land, or erecting a college building, in or near the village of Hillsdale, for the use of the 'Michigan Central College.' That the Michigan Central College referred to, was the institution of that name incorporated by act of the legislature of the state of Michigan, approved March 19, 1845, and then located at Spring Arbor, in Jackson county, Michigan.

"That at the time of making said subscription, it was contemplated by the signers thereto, that said Michigan Central College should be removed to said Hillsdale, and use the premises proposed to be bought or built, and the proof of the last fact was objected to by the plaintiffs; that the subscribers knew, at the time of making said subscription, that the right of the Michigan Central College to remove to Hillsdale had been questioned, and was opposed by some of the trustees of said college.

"That on the first day of July, 1853, the said defendant had paid about $ 200 on his aforesaid subscription, and the said Chauncey W. Ferris, William Waldron, Charles T. Mitchell, Hewitt & McCollum, Henry Waldron, and certain other subscribers, had paid about $ 5,000 on their said subscriptions.

"That said amounts so paid had, at that time, been paid out and expended towards erecting a college building near the said village of Hillsdale.

"That about the time the Michigan Central College decided not to use said college building when the same should be completed, of which fact the said defendant had notice.

"That on or before January 1st, 1854, the idea of removing said Michigan Central College to Hillsdale, or of using said proposed new building by said Central college, was abandoned wholly and finally.

"That on the 27th day of September, 1853, Esbon Blackmar, who owned the land upon which said college building was being erected conveyed said land by a sufficient deed to said defendant and certain other persons, with their knowledge and consent, upon the following trusts (among others): 1st. For the erection thereon of college or academical buildings, and for no other use or purpose whatever. 2d. To convey the said premises for the uses and purposes aforesaid, and not otherwise, and upon the express condition that the same should be applied to no other use or purpose whatever, to such board of trustees as may be appointed by the annual conference...