Methodist Orphans' Home Ass'n v. Fidelio C. Sharp's Ex'r

• Decision Date: 04 June 1878
• Citation: Methodist Orphans' Home Ass'n v. Fidelio C. Sharp's Ex'r, 6 Mo.App. 150 (Mo. App. 1878)
• Parties: METHODIST ORPHANS' HOME ASSOCIATION, Respondent, v. FIDELIO C. SHARP'S EXECUTOR, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 150

METHODIST ORPHANS' HOME ASSOCIATION, Respondent,

v.FIDELIO C. SHARP'S EXECUTOR, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 4, 1878.

Gratuitous subscriptions for charitable purposes cannot be enforced unless the promisee has, in reliance on the promise, done something. The mere fact that others were by the promise led to subscribe is not sufficient. There is no consideration to support the promise, and it cannot be enforced.

APPEAL from St. Louis Circuit Court.

Reversed, and judgment.

H. G. SACHLEBEN, for appellant, cited: Workman v. Campbell, 46 Mo. 309, 34 Mo. 149; Cook v. Elliott, 34 Mo. 586; College, etc., v. Kendall, 121 Mass. 528.

D. A. JANUARY, for respondent, cited: Amherst Academy v. Cowles, 6 Pick. 427; Society v. Perry, 6 N. H. 164; George v. Harris, 4 N. H. 533; Comstock v. Howd, 15 Mich. 237; Dartmouth College v. Woodward, 4 Wheat. 518; Westminster College v. Gamble, 42 Mo. 411; Norton v. Janvier, 5 Harr. 346; Collier v. Society, 8 B. Mon. 68.

BAKEWELL, J., delivered the opinion of the court.

This action was instituted originally in the Probate Court to recover against the estate of deceased a subscription made by him to the Methodist Orphans' Home Association, an incorporated charitable institution. The demand was not allowed in the Probate Court; but on trial anew in the Circuit Court, judgment was given against the estate, and defendant appeals.

It appears from the evidence that the Methodist Orphans' Home, before the association bearing this name was incorporated, had incurred a debt of $3,700 for the purposes of the charity. After the incorporation of plaintiff, for the purpose of liquidating this debt, charitable persons interested in the institution procured subscriptions to the following paper:--

“For the purpose of liquidating a debt of thirty-seven hundred dollars against the Methodist Orphans' Home of this city, we, the undersigned, agree to pay the amount placed opposite our names, upon the following condition, to wit: It is hereby expressly agreed and understood that no subscription, nor any part thereof, shall be deemed due, payable, or collectible, until the whole sum of $3,700 shall have been raised or subscribed.”

Mr. Sharp, on application by the president of the plaintiff, signed this paper, and wrote “$100” after his name. Other persons in like manner subscribed various sums, until $3,810 was subscribed. Of this, $1,585 remained unpaid at the date of the suit. The amount paid in was used in part payment of the debt. The debt was a debt secured by deed of trust executed by the trustees of the charity.

This record presents for our consideration the vexed question how far voluntary subscriptions for charitable purposes are binding. The law on this point is quite unsettled, and the most learned tribunals, after careful consideration, have reached opposite conclusions. The question has never been passed upon in Missouri by the Supreme Court. It does not arise in Pitt v. Gentle, 49 Mo. 74, or Workman v. Campbell, 46 Mo. 305, because in those cases expenses had been incurred by others in consequence of the subscription; and in Westminster College v. Gamble, 42 Mo. 411, Judge Wagner is careful to say that the defence is based exclusively upon the ground that the conditions of subscription were not complied with. In Michigan, such promises have been held binding in recent cases ( Comstock v. Howd, 15 Mich. 237); and in New Hampshire, cases to that effect are to be found in the earlier volumes of the reports ( George v. Harris, 4 N. H. 533; Society v. Perry, 6 N. H. 164); and have probably been followed. In Massachusetts, dicta are to be found to the same effect; but it has been very recently decided there ( Cottage Street M. E. Church v. Kendall, 121...