Pitt v. Gentle

• Decision Date: 31 October 1871
• Citation: 49 Mo. 74
• Parties: J. D. PITT et al., Defendants in Error, v. WILLIAM GENTLE, Plaintiff in Error.
• Court: Missouri Supreme Court

49 Mo. 74

J. D. PITT et al., Defendants in Error,

v.WILLIAM GENTLE, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Louisiana Court of Common Pleas.

J. B. Henderson, for plaintiff in error.

The subscription paper was a mere proposal to donate, and not an express promise or agreement to pay, as required by the statute (Wagn. Stat. 270, § 6), and constitutes no valid obligation which can be made the foundation of a suit. (Baird v. Thayer, 8 Blackf. 146; Ephraim v. Murdock, 7 Blackf. 10; Breeze R. 103; 8 Mass. 138, 292; 11 Mass. 114.) A request cannot be implied from the beneficial nature of the services to the subscribers. (Hamilton College v. Stewart, 1 Comst. 581.) There is no proof of acceptance by plaintiff. (9 Pet. 662; 11 Mass. 114.)

Dryden & Dryden, with Anderson, Morrow & Anderson, for defendants in error, cited Society in Troy v. Perry, 6 N. H. 164; George v. Harris, 4 N. H. 533; Harrison v. Stetson, 5 Pick. 506; Bryant v. Goodnow, id. 228; Warren v. Stearns, 19 Pick. 73; Barnes v. Perine, 9 Barb. 202; Homes v. Dana, 12 Mass. 190; Boutell v. Cowdin, 9 Mass. 254; Phelps v. Townsend, 8 Pick. 392; Com. Bank v. Nolan, 7 How., Miss., 508; 1 Sto. Cont. 555; 1 Pars. Cont. 431.

BLISS, Judge, delivered the opinion of the court.

This suit was brought upon the following paper, signed by defendant and others: “We, the undersigned, propose to donate to J. D. Pitt, Edwin James and John Goldsberry the sums set opposite our names, to be used for the purpose of rebuilding a woolen mill in the town of Frankfort, Mo.”

It is shown that a mill belonging to the persons named had been burned, and to induce them to rebuild, this subscription was circulated among the neighbors; that the signers were not interested in the property, and that the owners rebuilt the mill, claiming to have done so upon the strength of the aid to be given by the subscription.

Under the circumstances, the paper must be taken as a promise to pay the several amounts opposite the donors' names. Such was the understanding of those who signed and those who received and acted upon it. The question then arises whether there was any consideration for the promise.

The case of the Trustees of Hamilton College v. Stewart, 1 N. Y., 582, is appealed to, to sustain the proposition that subscriptions of this kind are naked promises and cannot be enforced. The opinion in that case, if I understand it, goes further, in requiring a special consideration in order to sustain subscriptions for public objects, than has generally been supposed to be the law, although, as well remarked by Allen, J., in Barnes v. Perine, 12 N. Y. 23, “an attempt to reconcile all the cases which have been adjudged, touching the validity of voluntary engagements to pay money for charitable, educational, religious or other public purposes would be fruitless.” It would seem in cases of that kind that no special consideration should be required, but when a corporation or association is authorized by law to receive a subscription and have applied money, or propose to apply the money subscribed to the object sought to be secured by the subscription, and according to its terms, the voluntary obligation should be a legal one. Or, in the language of the Supreme Court of Indiana in Johnston v. Wabash College, 2 Ind. 555, as applied to that case, “the accomplishment of the object in aid of which the money was promised, formed a good and valid consideration for the promise to pay it.”

In Barnes v. Perine, the subscription was for the expenses of removing an old church and building a new one; and the trustees having proceeded with the work, the subscription was sustained upon the ground that the expenses had been incurred at the request of the subscribers, though no such express request was contained in the subscription. And in Gittings v. Mayhew, 6 Md. 113, where the expenses had been incurred, to defray which the subscription was made, the court remarked: “In whatever uncertainty the law concerning voluntary subscriptions of this character may be at this time in consequence of the numerous decisions pronounced upon the subject, it appears to have been settled that when advances have been made, or expenses or liabilities...