Catt v. Olivier

Decision Date27 September 1900
CourtVirginia Supreme Court
PartiesCATT. v. OLIVIER et al.

SUBSCRIPTIONS—PERFORMANCE OF CONDITIONS—EVIDENCE—WAIVER OF CONDITIONS.

1. In an action against the receiver of an institution to which subscription notes were executed on certain conditions, not expressed in the notes, to determine their liability to creditors, the subscribers may show the conditions on which such notes were given, and that they were not performed, as such evidence is not contradictory of the notes, but avoids their effect.

2. In an action against the receiver of an institution to which notes were given on certain conditions, not expressed in the notes, to determine the liability of the makers to creditors, that the notes were of the same date, alike, except as to amount, and "were kept together and treated as belonging to the same fund, is sufficient to show that they were given on the conditions outlined when the plans for raising the funds were adopted.

3. In an action against the receiver of an institution to determine the liability of the makers on certain subscription notes to creditors, which were given on certain conditions, the fact that payments were made by such makers before the conditions on which they were given were complied with is not a waiver of such conditions, since such makers had the right to assume that the money paid by them would be used for the purpose for which they had agreed to pay it.

Appeal from hustings court of city of Staunton.

Action by W. L. Olivier and others against Reeves Catt, trustee of the Wesleyan Female Institute, to determine their liability on certain notes. From a decree for plaintiffs, defendant appeals. Affirmed.

A. C. Braxton, for appellant.

Ranson & Ranson, for appellees.

BUCHANAN, J. The controversy in this appeal is whether W. L. Olivier and 25 other parties who filed their petition In this cause are liable to the creditors of the Wesleyan Female Institute, an insolvent corporation, on certain notes made by them, and now in the hands of Reeves Catt, the receiver of the court in this case. This question was referred to one of the commissioners of the court for investigation. He reported the facts and circumstances under which the notes were made, and reached the conclusion that the makers of the notes were not liable thereon. The court confirmed his report, and from that decree this appeal was allowed.

It appears from the commissioner's report, which, in all material matters, is, we think, sustained by the evidence, that in the year 1893 the friends of the institute, finding that it was financially embarrassed, set about to devise means to meet its indebtedness and to continue the school as a going concern; that the head of the movement was one W. W. Smith, an active worker in the Methodist Episcopal Church South; that he and parties interested held a public meeting at the Young Men's Christian Association Building in Staunton for the purpose of adopting some means to accomplish that end; that the plan proposed and adopted was that subscriptions to the amount of $25,000 should be secured, of which sum $10,000 was to be raised in and about Staunton by the friends of the institute, while the remaining sum of $15,000 was to be secured by the friends of the school at large; that this fund was to be kept as a separate one, and, when secured, was to be used to pay off the bonded indebtedness of the school, after which any surplus that might remain was to be used for its general benefit; that it was further understood that none of the subscription secured was to be binding unless the entire sum of $25,000 was secured, and that this sum, when secured, was to be turned over to the institute for the purpose named, and none other; that when this was done it was to give such subscribers a deed of trust on its real estate, by which it was to bind itself to return to them, without interest the amount of their several subscriptions in the event it should cease to be conducted as a conference school in Staunton; that the next step taken was at a meeting of some of the subscribers to the fund held at the Virginia Hotel, in Staunton, at which it was agreed that J. A. Fauver should act as trustee to hold the fund for the purpose named, and that he and one George S. Lightner should reduce to writing the conditions above stated, upon which subscriptions had been or were to be received; that this writing was never prepared; that there was no subscription paper, and that the promises to pay were embodied in the notes given by the subscribers, which were all executed after the last-named meeting; that the subscription notes were obtained by different solicitors (just who those solicitors were is not shown, but many of them were taken by...

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12 cases
  • Meholin v. Carlson
    • United States
    • Idaho Supreme Court
    • 3 Marzo 1910
    ... ... Ellis, 118 Ga. 345, 98 Am. St ... 111, 45 S.E. 405; Miller v. Savage, 60 N.J. Eq. 204, ... 46 A. 633; Bell v. Shibley, 33 Barb. 610; Catt ... v. Olivier, 98 Va. 580, 36 S.E. 980; Shuey v ... Holmes, 20 Wash. 13, 54 P. 540; In re Hamilton, ... 26 Ore. 579, 38 P. 1088; Chase v ... ...
  • Fowle v. Lane *
    • United States
    • Virginia Supreme Court
    • 16 Septiembre 1920
    ...6 E. & B. 370, which corresponds very much to Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698, and Catt v. Olivier, 98 Va. 580, 36 S. E. 980. The cases in the Supreme Court of the United States bearing on the question under consideration are few, and not entirely satisfactor......
  • Reliance Life Ins. Co v. Gulley's Adm'x
    • United States
    • Virginia Supreme Court
    • 16 Noviembre 1922
    ...Solenberger v. Gilbert, 86 Va. 776, 11 S. E. 789; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct 816, 38 L. Ed. 698; Catt v. Olivier, 98 Va. 580, 36 S. E. 980; Kelly v. Oliver, 113 N. C. 442, 18 S. E. 698; McCormick v. Faulkner, 7 S. D. 363, 64 N. W. 163, 58 Am. St. Rep. 839; Ware v. Allen, 12......
  • N.Y. Life Ins v. Franklin
    • United States
    • Virginia Supreme Court
    • 13 Enero 1916
    ...evidence is not ad missible to contradict or vary the terms of a written contract. Towner v. Lucas, 13 Grat. (54 Va.) 705; Catt v. Olivier, 98 Va. 580, 36 S. E. 980." "Policy Best Evidence. In the absence of fraud or mutual mistake, the written contract, if there he one, is the best and onl......
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