Hopkins v. Upshur

• Court: Supreme Court of Texas
• Citation: 20 Tex. 89
• Parties: ANDREW N. HOPKINS v. HORACE L. UPSHUR.
• Decision Date: 01 January 1857

20 Tex. 89

ANDREW N. HOPKINS
v.
HORACE L. UPSHUR.

Supreme Court of Texas.

1857.

Austin, March 17th, 1851. We, the undersigned, agree to donate the cash or property set opposite our names, for the purpose of erecting a Protestant Episcopal church in the city of Austin, signed by the defendant, among others, with a certain amount set opposite his name, and delivered to one of the vestry of the church; and upon the faith of which the vestry incurred pecuniary liabilities and expense; held to be a valid contract; and held further that the contractor who undertook to build the church, and to whom said subscription was assigned by the vestry in payment, could maintain an action therefor in his own name. 24 Tex. 200;27 Tex. 113.

There is nothing, in this case, in the objection that at common law there is no authority in the courts to enforce a subscription for charitable purposes.

Appeal from Travis. Tried below before the Hon. Thomas H. DuVal. The facts are stated in the opinion.

R. T. Brownrigg, for appellant. There was an express promise and a consideration. Smith on Con. 88; 1 Taunt. 423; 8 Bing. 8; Bunn v. Guy, 4 East, 194; 2 Bouv. L. Dic. title, SUBSCRIPTION; 20 Vt. 509;9 Grat. 183;3 Barr, 416. As to the want of a nominal payee, the authorities heretofore cited show this instrument to be “a simple contract in writing or

[20 Tex. 90]

promise to pay for value,” in equity equivalent to a promissory note or bill of exchange, transferable for value, with or without indorsement. Story, Eq. Jur. sec. 1040, 1040 a. The same is the doctrine of the civil law. See also Nimmo v. Davis, 7 Tex. 26;Hunt v. Turner, 9 Id. 385;15 Id. 25;16 Id. 549. A bona fide owner or holder of a bill of exchange or promissory note, made payable in blank, may fill the blank with his own name, etc. 2 Tex. 232;4 Id. 109; and see Crutchley v. Clarence, 2 M. & S. 90; Bank of Kentucky v. Gary, B. Mon. 626; Chitty on Bills, 156; Story on Prom. N. secs. 37-8-9. These authorities establish the proposition that the payee of a written promise may be proved by evidence dehors the writing; there being no distinction in equity, in this respect, between promissory notes and bills of exchange and other written promises. The evidence here shows that the vestry was the payee. See Barnes v. Perine, 15 Barr; 2 Cush. 271;4 Scam. 202; 4 Phill. on Ev. p. 598, 599, and language of Kennedy, J., in the case of the Commissioners v. McCalmont, there cited; 3 Scam. 198.

West, for appellee. We contend that no action would lie on such an instrument, because, 1st. It is a mere donation, a gift, and was not accompanied by delivery, as a gift should be. 1 Tex. 161;6 Id. 45. It is void as a gift further for want of a donee. 5 Humph. 170; 1 Swan (Tenn.).

2d. As a contract, and not as a gift, it is utterly void; it wants two of the most essential ingredients of a contract--1st. There are no parties to it; and secondly, there is no consideration. There cannot be found in any law book, a case in which the courts have enforced a contract, without parties and without consideration, whether the subscriptions were for charitable purposes or not. The attention of the court is respectfully called to the wording of the contract in every case, without exception, cited by appellant; and in every instance it will be found, that in the body of the instrument, there is some corporation, trustee, or committee to whom the subscription is made payable. If it be contended that the instrument by its tenor was payable to the Protestant Episcopal church, the answer is short; the church is unincorporated, and has no power to receive donations or to contract. The statute of January 30th, 1845, Hart. Dig. art. 3238 et seq. p. 973, expressly provides the

[20 Tex. 91]

mode by which persons desiring to build a church, can acquire an existence and being that will be recognized by the courts.

3d. Even upon the supposition that the contract is legal, yet we contend that unless the appellant can show that with the knowledge and consent of appellee, he has been induced to contract engagements and liabilities on the faith of his subscription, he cannot recover. Story on Contracts, sec. 453; 1 Parsons on Contracts, p. 378, and authorities cited in the note.

Story lays down the law to be that where work is thus done even on the faith of the subscription, that it would only be to his co-signers that the subscriber could be held liable, on the ground of the mutuality of the contract and consideration. 1 Story on Con. p. 556; Curry v. Rogers, 1 Foster, N. H. 247. But Judge Parsons goes further, and says that only in cases where advances have been made or expenses incurred without notice of the refusal of the party to pay, can an action be maintained; and says that to allow the action on the ground of the mutuality of the consideration, is to argue “in a vicious circle.” 1 Parsons Con. p. 378. The following authorities are cited: 11 Mass. 114; 2 Pick. 579;9 Barb. 202;2 Mass. 254;6 Metcalf, 310; and cases cited in the Notes of Parsons and Story above referred to.

ROBERTS, J.

Appellant recovered a judgment against appellee for fifty dollars, in a suit before a justice of the peace. It was carried into the district court by certiorari, and the cause having been submitted to the judge, was decided against appellant. From this decision the appeal was taken to this court, and the question now is, Did the court decide correctly in determining that the facts adduced on the trial did not show a good cause of action in plaintiff below?

The statement of facts shows that Upshur signed a subscription, which reads as follows:

“AUSTIN, March 17th, 1851.

We, the undersigned, agree to donate the cash or property set opposite our names, for the purpose of erecting a Protestant Episcopal church in the city of Austin. (Among others)

+------------------------+
                ¦H. L. Upshur ¦cash¦$50.”¦
                +------------------------+
                

It is contended by Upshur, that Hopkins cannot make this

[20 Tex. 92]

instrument...