Hodges v. O'Brien

• Citation: 113 Wis. 97,88 N.W. 901
• Parties: HODGES ET AL. v. O'BRIEN.
• Decision Date: 28 January 1902
• Court: United States State Supreme Court of Wisconsin

113 Wis. 97

88 N.W. 901

HODGES ET AL.

v.O'BRIEN.

Supreme Court of Wisconsin.

Jan. 28, 1902.

Appeal from circuit court, Iowa county; Geo. Clementson, Judge.

Action by G. T. Hodges and others against Henry O'Brien. From a judgment for plaintiffs, defendant appeals. Reversed.

This action is based upon the same subscription paper mentioned in Hodges v. Nalty, 104 Wis. 464, 80 N. W. 726. It is brought to recover the amount subscribed by the defendant toward the building of a church in the parish where he officiated as priest. The plaintiffs are the building committee, suing in behalf of all others interested. Their old church had been burned. Soon thereafter the defendant erected a small chapel at his own expense for the congregation to occupy until other arrangements could be made. In January, 1892, the congregation was assembled, which elected the plaintiffs, the defendant, and others as a building committee, and directed them to take charge of collections and select plans for a new church. The committee had various meetings, and voted to build a church costing not less than $10,000, and, if that sum was not collected, the subscriptions taken were to be null and void. A subscription paper was passed around among the committee, and various amounts were subscribed. The defendant signed for $1,500. As a consideration therefor, the plaintiffs claim that it was then agreed that the defendant should be paid the sum of $237, which represented his cash outlay in building the chapel mentioned. This sum was afterwards paid defendant. On February 1, 1892, defendant executed his two promissory notes to the treasurer of the society for $750 each, payable July 1st and January 1st following, with 6 per cent. interest after due, and payable at the Citizens' Bank, Monroe, Wis. Many of the other subscribers executed similar notes. The committee, with the defendant, entered into an active canvass for funds. The plaintiffs claim that it was continued until a sum was raised sufficient, with the insurance money from the old church, to amount to over $11,000. The church was built during the fall of that year, and the plaintiffs insist that the defendant should now pay his subscription. The complaint sets out the history of the different transactions as herein stated, and alleges that defendant regained possession of his said notes without consent, and now refuses to pay the same, or any part of his said subscription. The answer contains many specific denials, and sets out as a defense that the scheme to build the church was merely tentative, and all subscriptions were made upon the understanding that they were void unless $10,000 was subscribed and collected; that an active canvass for funds was made, and they were only able to secure about $6,000, whereupon the project for building the church was abandoned, and his notes were given up. About July 1st defendant was transferred to another parish, and had nothing more to do with the project, and thereafter his successor instigated and carried out a new scheme for building a church without reference to the defendant's liability on said notes or subscription paper. A trial by jury resulted in a special verdict to the effect that: “(1) That defendant did not notify the committee or the congregation that he refused to be bound by his subscription prior to their incurring liability in reliance thereon. (2) That defendant made his subscription and gave the two notes upon an agreement that, if he subscribed $1,500, he should be paid out of the church funds the sum of $237 he had expended in the erection of the temporary chapel. (3) That the said subscription and the notes were not made independent of the payment to defendant of said sum of $237. (4) That the subscription (including the unexpended insurance money) did not reach the sum of $10,000 at any time before the defendant severed his connection with the congregation. (5) That when defendant took his notes he intended to withdraw his subscription. (6) That the building committee did not consent to such withdrawal. (7) Damages, $1,500. Answered by the court by consent of counsel.” The court refused to submit a question requested by defendant, as follows: “At the time the defendant secured possession of the notes sued on in this action, had the project to build a new church and to raise money therefor, in pursuance of which the defendant subscribed to the building fund and gave such notes, been given up by the building committee and congregation, and the subscribers released?” After the jury had been out over one night, they returned into court, and desired further information regarding evidence. The court informed them it was impossible to pick out different items of evidence, and in urging them to agree used the following language to which defendant's counsel took exception: “You have already seen that attorneys from a distance have been called in at very considerable expense to the parties. You know also that a large number of witnesses from a distance have been in attendance at considerable expense. You know that the case has dragged through three days. You may not know, but it is true, that every day that this court sits costs this county $100. Every five minutes this court is in session costs this county one dollar. Now, this case has cost this county pretty well onto $300 for jurymen and court officers. It has cost the parties a great deal for attorneys and for witnesses. It will have to be decided by a jury, and you are just as intelligent a jury--and you know that yourselves--as could be gotten together, probably to try this case either at this term or the next, and it is very important, indeed, that this county and the parties should not be put to the expense of retrying this case. No twelve men can settle it better than you, and you well appreciate the necessity that is upon me in asking you to struggle with this case further until you come to an agreement. Because, if you cannot agree, and this case has to be retried at the next term of court, it costs Iowa county between two and three hundred dollars, to say nothing of the other expenses. I trust, therefore, gentlemen, that after again retiring you will make further efforts, and come to an agreement.” Several motions by defendant for judgment, to strike out the answers to questions 1, 2, 3, and 6, and for judgment, and to set aside the verdict, and for a new trial, were each denied, and duly excepted to. Judgment was entered for plaintiffs, from which this appeal is taken.

Spensley & McIlhon and P. A. Orton, for appellant.

Colin W. Wright and Burr W. Jones, for respondents.

BARDEEN, J.

Counsel for the defendant first makes a vigorous attack upon the decision in Lathrop v. Knapp, 27 Wis. 214, as laying down bad law, and being at variance with the almost universal current of authority elsewhere. The true rule governing such subscriptions is asserted to be that the subscription is simply a proposition, which, until expressly or impliedly accepted by the promisee, may be revoked by the subscriber. If a review of that case was necessary for the decision of this appeal, we might find it difficult to subscribe to all that is said in the prevailing opinion, but we do not consider that the question is fairly before us. The plaintiffs claim, and the jury have found, that defendant...