Barnett v. Franklin Coll.

• Decision Date: 10 May 1894
• Docket Number: No. 1,036.,1,036.
• Citation: 10 Ind.App. 103,37 N.E. 427
• Parties: BARNETT v. FRANKLIN COLLEGE.
• Court: Indiana Appellate Court

10 Ind.App. 103

37 N.E. 427

BARNETT

v.FRANKLIN COLLEGE.

No. 1,036.

Appellate Court of Indiana.

May 10, 1894.

Appeal from circuit court, Johnson county; William A. Johnson, Judge.

Action by Franklin College against William H. Barnett, administrator of the estate of Ellen N. Barnett, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

W. S. Shirley, Miller & Barnett, Overstreet & Overstreet, and Buckingham & White, for appellant. Thompson & McNutt, Thos. W. Woollen, and D. W. Howe, for appellee.

REINHARD, J.

The appellee filed a claim against the estate of appellant's decedent on two indorsement bonds alleged to have been executed by the decedent to the appellee July 2, 1887, and August 15, 1888, respectively, the first of which was payable six months and the second twelve months after the death of said decedent. The amended complaint or statement of claims is in two paragraphs. Appellant filed certain motions to strike out portions of the averments of each paragraph of the complaint, which were overruled, and the appellant thereupon demurred separately to each paragraph of the complaint. The demurrer was overruled, and appellant excepted. Answers and replies were filed, and the cause was tried by the court, resulting in a finding and judgment for appellee for the amount of the bonds. The court, at the request of the parties, made a special finding of the facts, and stated its conclusions of law thereon, to each of which the appellant excepted. The overruling of the motion to strike out portions of the complaint was not an available error. Garn v. Working, 5 Ind. App. 14, 31 N. E. 821. The specific objection urged against the sufficiency of the complaint upon the demurrer is that it shows affirmatively that the instruments which are the foundation of this claim were executed without any consideration. It is contended that the bonds are at most but a promise to pay money as a gift, and, this being so, such promise may be revoked at any time, and that death works a revocation. It is conceded by appellant's counsel that an executory contract to pay money after the death of the promisor is enforceable, if it is based upon a valid consideration, but counsel contend that this is not so in the absence of such consideration, and when the promise is one to make a gift in the future. That this is a correct statement of the law upon this subject is also admitted by appellee's counsel. But it is insisted on their part that the bonds in suit are not mere promises to pay money as a gift, but that the obligations therein assumed are supported by ample and valid considerations, and that the instruments are in fact binding contracts between the parties. If this contention can be upheld, it is plain that the ruling upon the demurrer was correct. It is averred in the statements of the claims filed that the appellee is an institution of learning, duly incorporated under the act of the general assembly of this state entitled “An act concerning the organization and perpetuity of voluntary associations,” etc., approved February 20, 1867; that the corporate objects of said institution are, as stated in its articles of association, to establish, maintain, and operate an institution of learning at Franklin, Johnson county, Ind., in the interest of the Baptist denomination of the state of Indiana, to be known as Franklin College, and to be open to male and female students on equal terms; that among the by-laws of the institution defining the powers and duties of its board of directors is one providing, in substance, that the board shall appoint annually a finance committee, one of whom shall be the treasurer, who shall have charge of the endowment funds, examine all securities, and decide upon the sufficiency thereof, under such regulations as the board may order; that at the time of the execution of the bonds the decedent was the widow of James Forsyth, deceased, and that she by her then name of Ellen N. Forsyth executed said bonds, copies of which are filed with the claim. The bond mentioned in the first paragraph is as follows: “$5,000. Endowment Bond. Trafalgar, Ind., July 5th, 1887. I, Ellen N. Forsyth, of Johnson county, Indiana, hereby bind myself, my heirs, devisees, and representatives, to pay to Franklin College, of Franklin, Johnson county, Indiana, the sum of five thousand dollars, said sum to be paid six months after my death, without interest, without relief from valuation or appraisement laws, and to be used as the capital stock of said institution is used, the principal to be loaned on real estate, and the interest only to be used for current expenses of the college. [Sig.] Ellen N. Forsyth. Attest: Eliza E. Carr.” It is further averred that these bonds were accepted by the appellee upon the terms and conditions therein specified, which acceptance was duly entered of record upon the records of the institution. Other considerations are averred in the statement, viz. that on the faith of these and other bonds the appellee expended money and incurred liabilities in anticipation that the bonds would be paid. In the second paragraph the additional averment is contained, concerning the instrument there declared upon, that the appellee, relying upon the bond so as aforesaid executed by the decedent, Ellen N. Forsyth, and in expectation that it would be paid at maturity, did likewise endeavor to raise, by subscription and otherwise, a sufficient amount required under its rules and regulations to authorize the naming of one of its unendowed professorships, with the view and for the purpose, when such amount should be raised, of applying the same upon the endowment of such professorship, and naming the same the “James Forsyth Professorship;” and in so doing did do much labor, and did expend much money, which it would not have done and expended but for its reliance upon said bond, executed by the decedent, and upon the expectation of its payment at maturity. The bond declared upon in the second paragraph is the same as that in the first, except that it is dated August 15, 1888, and is payable 12 months after the decedent's death, and that across the top of it are written the words, “Given to complete James Forsyth Professorship.” The averments of the two paragraphs are substantially alike with the exceptions named. This paragraph also sets out an additional section of the by-laws providing that any one giving the sum of $20,000 or more, in a manner to satisfy the financial committee, may name any unendowed professorship, and enjoy the credit connected therewith, the board reserving the right to increase the endowment fund, or to supplement the proceeds of the same in any sum that it may deem necessary or desirable. It will be noticed that the bonds contain a stipulation that the money which the appellant's decedentpromised to pay “to be used as the capital stock of the institution is used; the principal to be loaned on real estate, and the interest only to be used for current expenses of the college.” And it is averred, as we have seen, that these bonds were accepted by the appellee upon the terms and conditions specified, which acceptance was duly entered of record by the appellee. This provision in the bond, and the averment of acceptance, not to speak of the further allegation that the claimant had fully performed all the conditions on its part to be performed, and had at all times been, and still was, ready and willing to apply the proceeds of said bonds to the purposes and objects therein specified, are sufficient of themselves, and in the absence of the averment respecting the expenditure of money and incurring of liabilities for improvements in anticipation of the payment of these and other bonds, to show a valid consideration for the promise contained in the instruments in suit, and to render the complaint or statement of claims, and each paragraph thereof, sufficient to withstand the demurrer.

The case of Garrigus v. Society, 3 Ind. App. 91, 28 N. E. 1009, bears a strong analogy to the case at bar upon the question of the sufficiency of such a consideration. In that case the society filed a claim against the estate of Elizabeth Storer, deceased, on an instrument in the form of a note, by which she had promised to pay to said society, out of her estate, one month after her death, the sum of $600, “to advance the cause of missions, and to induce others to contribute for that purpose.” A demurrer having been overruled to the claim, it was urged, on appeal to this court, that the instrument was without sufficient consideration, and that the action could not be maintained. This court ruled, however, that the promise could not be held void for want of consideration, citing in support of its ruling the cases of Johnston v. Wabash College, 2 Ind. 555, and Roche v. Seminary, 56 Ind. 198, in which cases instruments of a similar character to those in the present case were adjudged to be founded upon a sufficient consideration to sustain an action for their collection. In the case of Roche v. Seminary, supra, the supreme court expressly held that the instrument required no further consideration to support it than “the accomplishment of the object in aid of which the money was promised,” which, in that case, as in this, was to go to the endowment fund of an institution of learning. The case of Seminary v. Robbins, 128 Ind. 85, 27 N. E. 341, is easily distinguishable from the case before us, as well as from the cases cited. In that case there had been no delivery of the instrument sued upon, and it contained a mere promise to give something. It was held not to be a valid gift inter vivos, as there had been no delivery to the payee, and as the promise was purely one to make a gift, and not a contract. In the case at bar there had not only been a delivery of the instrument, but it is expressly averred that the same had been accepted upon the terms stipulated, and that the acceptance had been entered...