Furman University v. Waller

• Decision Date: 10 April 1923
• Docket Number: 11183.
• Citation: 117 S.E. 356,124 S.C. 68
• Parties: FURMAN UNIVERSITY v. WALLER ET AL.
• Court: South Carolina Supreme Court

117 S.E. 356

124 S.C. 68

FURMAN UNIVERSITY v. WALLER ET AL.

No. 11183.

Supreme Court of South Carolina

April 10, 1923

Appeal from Common Pleas Circuit Court of Greenwood County; John S Wilson, Judge.

Action by the Furman University against Coleman B. Waller and another, as administrators of the estate of C. A. C. Waller deceased. From a judgment for plaintiff entered on a directed verdict, defendants appeal. Affirmed.

Grier & Park, of Greenwood, for appellants.

Haynsworth & Haynsworth, of Greenville, and Tillman, Mays & Featherstone, of Greenwood, for respondent.

MARION J.

This is an action to enforce a subscription for $10,000, made by the late C. A. C. Waller, of Greenwood, S. C., to "The Baptist 75 Million Campaign." Upon the trial of the cause in the circuit court, Hon. Jno. S. Wilson, Presiding Judge, refused defendants' motion for a directed verdict and granted a motion for the direction of a verdict in favor of the plaintiff. From judgment thereon, defendants appeal.

At the trial evidence was adduced by plaintiff tending to establish the allegations of the complaint. The defendants offered no evidence. The defendants' motion for the direction of a verdict was therefore substantially a demurrer to the evidence of the plaintiff. The issue thus made might perhaps have been more properly raised by a demurrer to the complaint. Greenwood Cotton Mill v. Tolbert, 105 S.C. 273, 89 S.E. 653, Ann. Cas. 1917C, 338. The two exceptions, however, assigning error in the refusal of defendants' motion and in the granting of plaintiff's motion for a directed verdict, squarely present the question of whether the Waller subscription was such a valid and enforceable contract as warranted the trial judge, under the evidence adduced, in directing a verdict for the plaintiff.

The appellants' first and main contention is that the evidentiary facts adduced and relied upon by plaintiff are insufficient to establish a binding legal obligation. They say that the subscription of Mr. Waller was a nudum pactum, a mere naked promise to give something in the future, unsupported by a valuable consideration and unenforceable in law or equity; and that such conclusion of law is not affected and cannot be impeached by the facts, or any legitimate inference therefrom, adduced in evidence. The relevant facts upon which this inquiry turns may be thus stated. The subscription card is in the following form:

"The Baptist 75 Million Campaign Pledge Card. For the love of Christ, my Savior and Lord, and for the promotion of his Kingdom. I promise to contribute through the First Baptist Church, City, the sum of $10,000.00 during the next five years. Of this amount I will give $100.00 in cash and the remainder in four annual installments of $1,200.00 each and four M. $4,000.00 at the end of the five years. This pledge is made with the understanding: 1. That this pledge is in addition to my regular contribution to local church expenses and equipment; 2. That if I move my membership during the five-year period, I will pay the unpaid balance of the pledge through the church where I place my membership. All of this contribution is designated to Furman University."

By direction of Mr. Waller, the following provision of the printed pledge card was stricken out:

"That if I die, lose my health, or suffer financial reverses that destroy or seriously impair my earning power, this pledge may be reduced or canceled upon request of myself or family."

The subscription was made during the campaign, some time between November 30 and December 7, 1919. The general object of the campaign was to raise funds in support of foreign mission work, the orphanage, the hospital, Baptist schools, and educational work. Furman University is a corporation organized under the laws of this state and is one of the regular Baptist institutions of the state, controlled by and under the supervision of a board of trustees elected by the Baptist state convention. "It gives a college education to boys of the state." Mr. Waller was a graduate of Furman University, the holder of its degrees of M. A. and M. M. P. He had served as vice president of its Alumni Association. He died intestate May 5, 1920, having at that time made only the first cash payment, of $100.00, on his subscription. He left a widow, but no children. The so-called "75 Million Campaign" involved an organized appeal to the Baptists of the state to subscribe five and one-half million dollars. The Waller subscription was a part of the amount which the First Baptist Church of Greenwood was expected to raise. Subscriptions other than this directly designating Furman University as the beneficiary were actually received, and one of them, in the sum of $25,000, was paid in cash. In reliance on these subscriptions "all over the state," money was borrowed by Furman University, and many improvements made. The campaign closed on December 7, 1919, and a contract for the erection of a new dormitory was entered into on December 30, 1919. The dormitory and other buildings were erected, and land purchased for that and other purposes of enlargement. The faculty and the students were doubled in number. All of this was done on the strength of the subscriptions secured in this campaign. The most of these subscriptions contained the clause, which was stricken out of the Waller subscription, to the effect that in the event of death or disability the pledge might be reduced or canceled.

It is a singular and somewhat significant fact that the precise question here presented, viz. as to the validity of a pledge to contribute money or property for the promotion of a charitable or beneficent object, seems never to have been directly passed upon by the courts of this state. It is one as to which the numerous cases from other jurisdictions, which we have carefully examined, disclose a considerable division, if not contrariety, of opinion among the courts.

There is, of course, no difference among the authorities as to the basic elementary proposition that "a single contract is incapable of becoming the subject of an action unless supported by a consideration."

Nor is there any essential variance as to what constitutes a consideration, a satisfactory definition of which is thus given in Currie v. Misa, L. R. 10 Exch. 153:

"A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit, accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other."

See Clark on Contracts, § 64, and our own cases of Corbett v. Cochran, 3 Hill, 41, 30 Am. Dec. 348, and Ferrell v. Scott, 2 Speers, 344, 42 Am. Dec. 371. But the diversity of opinion is as to whether a legal consideration for such an agreement may be found at all, and, if so, upon what ground it should properly be predicated. In an elaborate note to the case of Young Men's Christian Association v. Estill (Ga.) 48 L. R. A. (N. S.) 783, in which the decisions are very fully collated, the annotator thus refers to the trend of judicial authority:

"In a very few of the earliest cases, as will be observed, a narrow view was taken, and an agreement of this character to pay money to a charitable fund was regarded as purely gratuitous, a nudum pactum, a promise without consideration, and unenforceable on any legal ground; thus leaving the performance of the agreement to the conscience and sense of honor of the individual subscriber. * * * But the courts soon receded from that position, and perhaps out of regard for public policy, and a desire to give greater stability and security to institutions thus largely dependent on donations from the public, began to look to other subscriptions to the same fund for a consideration for the one in question, * * * or to acts performed by the promisee on the faith of the subscription as constituting a consideration for it; * * * and generally the tendency has been to uphold the subscription as valid and enforceable wherever that was possible. It would appear, however, that the courts of New York have been rather reluctant to follow this tendency, and have inclined to keep to a narrower view of the subject." What we regard as the sounder and more modern view of this question, generally, may perhaps be best outlined and illustrated by extracts from several leading cases.

In the case of Young Men's Christian Association v. Estill, 140 Ga. 291, 78 S.E. 1075, 48 L. R. A. (N. S.) 783, Ann. Cas. 1914D, 136, the executors of Estill were held liable upon a verbal subscription to a Y. M. C. A. building fund. The court said:

"A promise to donate money to a charitable purpose is gratuitous and unenforceable unless some consideration therefor exists. Such a promise amounts to nothing more than a voluntary offer which may be withdrawn before being acted on. But if, on the faith of the promise, the promisee before withdrawal of the promise, expends money and incurs enforceable liabilities in furtherance of the enterprise the promisor intended to promote, the consideration is supplied and the promise is rendered valid and binding. [ Citing cases] 1 Page on Contracts, § 298; 1 Elliott on Contracts, § 228. In 1 Parsons on Contracts (8th Ed. *453) it is said: 'On the important question, how far voluntary subscriptions for charitable purposes, as for alms, education, religion or other public uses, are binding, the law has in this country passed through some fluctuation, and cannot now be regarded as on all points settled. Where advances have been made, or expenses or liabilities incurred by others in consequence of such subscriptions, before any notice of withdrawal, this should, on general principles, be deemed sufficient to make them obligatory, provided the advances were

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