Hardin College v. Johnson
| Decision Date | 06 March 1928 |
| Docket Number | No. 20190.,20190. |
| Citation | 3 S.W.2d 264 |
| Court | Missouri Court of Appeals |
| Parties | HARDIN COLLEGE, RESPONDENT, v. J.T. JOHNSON, APPELLANT.<SMALL><SUP>*</SUP></SMALL> HARDIN COLLEGE, RESPONDENT, v. A.D. JACKSON, APPELLANT. HARDIN COLLEGE, RESPONDENT, v. JOSEPH WILKINS, APPELLANT. HARDIN COLLEGE, RESPONDENT, v. NATE AND SI PHILLIP, APPELLANTS. |
Appeal from the Circuit Court of Ralls County. — Hon. Charles T. Hayes, Judge.
AFFIRMED.
Rodgers & Buffington and P.H. Cullen for appellants.
(1) Plaintiff must fully perform its part of the contract before it can complain or recover against the other party to the contract. Hulen v. Wilson, 4 Mo. 35; West v. Freeman, 76 Mo. App. 101; Downey v. Burke, 23 Mo. 228. (2) There was no meeting of minds of the parties to the contract in issue, hence, no valid and enforceable contract. 13 C.J., sec. 48, page 264; Curry v. Greffert, 115 Mo. App. 364. (3) Plaintiff can recover only for such part, if any, of the contract it performed on its part. Grand River College v. Robertson, 67 Mo. App. 329; Bank v. Bank, 244 Mo. 575; Kerster v. Clayes, 147 Mo. App. 100; Pott v. Leavel, 161 Mo. App. 247. (4) Defendants' proffer of evidence that they relied and acted on the representations of the plaintiff was erroneously excluded. Scott v. Haynes, 12 Mo. App. 596; 27 C.J., sec. 193, page 58. (5) The contract in issue never became operative as such. Barrett v. Davis, 104 Mo. 559, 16 S.W. 377; Tutt v. Price, 7 Mo. App. 194; Shelton v. Durham, 7 Mo. App. 585; Reiner v. Crawford, 23 Wash. 669, 63 Pac. 516, 83 Am. St. Rep. 84; Golden v. Meier, 129 Wis. 14, 107 N.W. 27, 116 Am. St. Rep. 935; Ware v. Allen, 128 U.S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563; Burke v. Dulaney, 153 U.S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; 17 Cyc. 642.
Fry & Hollingsworth for respondent.
(1) Consideration is imported by unqualified written promise to pay money or property to another. Sec. 2160, R.S. 1919; Trustees of Christian U. v. Hoffman, 95 Mo. App. 488; Maxwell v. Harron, 180 S.W. 993; Third Nat'l Bank v. Reichert, 101 Mo. App. 242; R.L. Burke Co. v. Miller, 187 S.W. 141. The great weight of authority in regard to subscriptions to charitable objects is to the effect that, if on the faith of the subscription, before its withdrawal, the promisee performs some act — expends money, incurs enforceable liabilities, etc. — in furtherance of the enterprise the promisor intended to promote, consideration for the subscription is supplied, and it is thereby rendered valid, binding and enforceable. 38 A.L.R. 881, citing the following: Koch v. Lay, 38 Mo. 147; School Dist. v. Sheidley, 138 Mo. 672, 37 L.R.A. 406; Christian U. v. Hoffman, 95 Mo. App. 488; Y.M.C.A. v. Morrow, 165 Mo. 511, and citing cases in: U S. Ala., Ark., Cal., Conn., Del., Ga., Ill., Ind., Iowa, Ky., Maine, Md., Mass., Mich., Minn., Mo., N.J., N.Y., N. Car., Ohio, Ore., Penn., So. Car., Tenn., Texas, Vt., Va., Wash., Wis., Canada. Expenditures made by reason of subscription constitutes valid consideration: Trustees LaGrange College v. Parker, 200 S.W. 663. It is the policy of courts to sustain subscriptions as valid obligations: 25 R.C.L. 1398, (2) The instruments sued on were delivered and became effective. There was no condition precedent, which had to be performed before these pledges became effective and valid. Smith v. Thomas, 29 Mo. 307; Jones v. Jeffries, 17 Mo. 577; Massman v. Holscher, 49 Mo. 87; Christian U. v. Hoffman, 95 Mo. App. 488; Farmers State Bank v. Sloop, 200 S.W. 304; Third Nat'l Bank v. Reichert, 101 Mo. App. 253; First Nat'l Bank v. Henry, 202 S.W. 281; Peoples Bank of Ava v. Rankin, 282 S.W. 91. (3) The instruments sued on here are not negotiable. Therefore, sec. 803, R.S. 1919 — instruments incomplete until delivery — has no application here. Sec. 788, R.S. 1919; Brannan's Negotiable Instruments Law, page 21. (4) No evidence is admissible to vary terms of written contract (except to show want of consideration). Christian U. v. Hoffman, 95 Mo. App. 488; Third Nat'l Bank v. Reichert, 101 Mo. App. 253; Commission Co. v. Thero, 154 Mo. App. 508; Stringer v. Geiser Mfg. Co., 162 S.W. 647; Montgomery v. Schnald, 166 S.W. 834; Perkins v. Bakrow, 45 Mo. App. 248; Burke Music Co. v. Miller, 187 S.W. 142; First Nat'l Bank v. Henry, 202 S.W. 281; Bross v. Stancliff, 240 S.W. 1091; Bank of Dearborn v. Gabbert, 274 S.W. 861; First Nat'l Bank v. Limpp, 288 S.W. 957; Kelley v. Briggs, 290 S.W. 105; 25 R.C.L. 1407; 37 Cyc. 504; 52 L.R.A. 220; 1917F L.R.A. 1132. (5) The trial court's findings and judgment in action, tried without a jury, is conclusive. Swarens v. Wright et al., 298 S.W. 776. (6) The case of Christian U. v. Hoffman, 95 Mo. App. 488, is squarely in point here, and it has been cited with approval in many later decisions. Kessler v. Clayes, 147 Mo. App. 88; Montgomery v. Schnald, 177 Mo. App. 75; Maxwell v. Harrom, 180 S.W. 993; First Nat'l Bank v. Henry, 202 S.W. 281; Peoples Bank of Ava v. Rankin, 282 S.W. 91; 38 A.L.R. 875, 881.
This is an action upon a written subscription made by the several defendants for the benefit of Hardin College, an educational institution for young women, located at Mexico, Missouri. The writing sued on is in the form of a note, and is as follows, omitting the amounts and dates:
Each of the defendants signed the above form of note, with the amount subscribed and the date, written in. Separate suits were brought against each of the defendants but upon the trial and by agreement, they were consolidated and tried as one suit. A judgment was rendered in favor of the college, against each of the defendants, and the defendants bring the case here by appeal.
The evidence discloses that Hardin College is an educational institution for young women. In the year 1919, the college authorities decided to make an effort to raise a half million dollars to erect new buildings and provide equipment and facilities for the institution, and began a campaign to raise this money by subscriptions. An effort was made to raise considerable of it among the people of the city of Mexico, and the adjoining territory. A campaign was advertised and it was stated that the college was making an attempt to raise $500,000.
The defendants are prominent business men of Mexico, and some of them were connected with the college, and with the campaign which was being conducted for the purpose of raising the money. Some of the defendants were on the board of directors, and it is sufficient we think for the purpose of this case to say that all the defendants, or in fact most of them, contend and so testified, that they agreed to pay this amount upon the theory that the college would raise the $500,000 as it had advertised and agreed in the published advertisements and literature circulated during the campaign. The Johnson pledge is dated October 17, 1919, for $1,000, and credited with $200 paid in bonds January 1, 1920. The Jackson pledge is dated August 16, 1919, for $250, and credited with $50 paid January 1, 1920. The Wilkins pledge is dated October 30, 1919, for $1,000, and credited with $200 paid January 1, 1920. The Phillip pledge is dated July 22, 1919, for $1,000, with no payment made on it.
The answer of defendants sets up the fact that these subscriptions were made on the representation of the college that it would procure subscriptions or gifts to the extent of $500,000, and would expend the same on additional college buildings, and that these gifts or promises were contingent upon plaintiff's securing subscriptions or gifts in that amount, and further pleads that the contract or agreement is without consideration.
The evidence discloses that only about $115,000 was raised in this campaign, and...
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