Hopkins v. Upshur

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

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 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 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 instrument the foundation of a cause of action against him; because: 1st. It is wanting in proper parties, to wit: a payee. 2d. It is wanting in mutuality, if there were payees to it. 3d. It is wanting in a valid consideration.

Standing by itself, isolated from the attendant and subsequent transactions in relation to it, it would clearly be liable to these objections. It does not bear upon its face all the qualities of a good cause of action, as does a promissory note in ordinary form. The facts, as shown in the record, were, that this subscription was made to Geo. J. Durham, as one of the vestry of the Episcopal church of the city of Austin; that the vestry consists of persons who have charge of, and are trustees for, the temporal affairs of the church; that after this subscription and others were made, and upon the faith and credit of them, the “vestry” contracted with Hopkins and one Sidegast to build the church, who gave bond for the performance of the contract; that they, the contractors, in consideration of this and other like subscriptions, undertook the contract, and did build the church; that after the contract was made, and before suit was brought, the vestry transferred the subscriptions over to the contractors, after which Sidegast transferred all his interest in the contract to Hopkins, who completed the work according to contract; and which was satisfactorily received by the vestry.

Do these circumstances, in connection with the instrument, defeat the objections above referred to, and justify the suit? We think so. First, as to the want of payees. The men who constitute the “vestry” were originally the payees. They were not named in the instrument, but the witness Durham says that “it was made to him, as one of the vestry of the Episcopal church.” They were the persons intended to receive the donations for the purposes set forth, and it was delivered to one of them for all. A consideration is as essential to the validity of a contract as proper parties. It would not be contended that a consideration could not be averred and proved, although it was neglected to be stated in the face of the contract. Why not the same of a payee, if one really existed, though omitted by inadvertence or other cause? It has been settled that a bona fide holder of a bill of exchange, in which a blank was left for the name of the payee, may insert his own name, and bring suit on it. So also may a suit be brought on a note or bill payable “to bearer,” without the name of any person appearing in it as payee. Close v. Fields, 2 Tex. 232. Such bills, though defective in form, constituted a part of a real transaction, which was allowed to be developed by adducing that which does not appear on their face.

In the case of Dickson et al. v. Montgomery et al. 1 Swan, 348, the testator, in making an endowment, misnamed the college, and also the party intended to take the bequest; and by proof it was shown what institution of learning and what party were meant to be designated. It was there said “that where the name or description of a legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake...