Robertson v. March

• Citation: 4 Ill. 198,1841 WL 3296,3 Scam. 198
• Parties: Jonathan Robertson, appellant,v.Edward March et al., appellees.
• Decision Date: 31 December 1841
• Court: Supreme Court of Illinois

3 Scam. 198

4 Ill. 198

1841 WL 3296 (Ill.)

Jonathan Robertson, appellant,

v.Edward March et al., appellees.

Supreme Court of Illinois.

December Term, 1841.

Appeal from Morgan.

Where several persons sign a subscription paper payable to a portion of their number, as trustees, whereby each one agrees to pay the sum set opposite his name, for the purpose of erecting a building, and the work is done by a mechanic, an action may be maintained by the trustees against any subscriber who neglects or refuses to pay his subscription. ^a

Such contract is not joint, but several.

This cause was tried in the Morgan Circuit Court, at the March term, 1841, before the Hon. Samuel D. Lockwood and a jury.

J. J. Hardin, D. A. Smith, and M. McConnel, for the appellant.

Wm. Brown and H. B. McClure, for the appellees.

TREAT, Justice, delivered the opinion of the court:

This was an action instituted by the appellees against the appellant, before a justice of the peace of Morgan county. The justice gave judgment for the appellees, and Robertson prosecuted an appeal to the Circuit Court, where the cause was tried by a jury. The bill of exceptions shows that on the trial in the Circuit Court, the appellees, to support the action on their part, offered in evidence an instrument in writing, as follows: “On or before the first day of January, 1841, we, the undersigned, promise to pay the sum annexed to each of our names, to William Hodgson, A. G. Phillips, Watson Sinclair, Samuel Smith, and Edward March, trustees, in trust of the Bethel Society of the Methodist Episcopal Church, in Morgan county, Illinois, for the purpose of building an addition to, and finishing, the church at the Bethel camp ground, as a more comfortable and spacious place of worship, and a school. August 24th, 1840.” Which instrument is signed by some sixty persons, with the sums by them severally subscribed written opposite their names, among them the appellant, subscribing $50. It appears that the appellees, to whom the subscription is payable, each signed the instrument as subscribers. It was admitted by the parties, that the instrument was executed by the appellant, without any consideration whatever, except what appears on its face, but was voluntary; and it was proved that the church mentioned in the instrument had been built since it was signed, and that the action was brought for the benefit of the mechanic who built the church. The appellant objected to the reading of the instrument in evidence, but the court overruled the objection, and the paper was read to the jury. He then asked the court to instruct the jury, first, “That as it is admitted by the plaintiffs, that the paper given in evidence was made and delivered without any good or valuable consideration, but was voluntary, they must find for the defendant;” and, secondly, “If the subscription paper given in evidence was made and delivered without any good or valuable consideration, they must find for the defendant;” which instructions the court refused to give. The jury found a verdict for the appellees for $40, and judgment was rendered thereon.

Robertson brings the record into this court, by appeal, and his assignments of error present the question as to his liability upon the instrument read in evidence. It is contended, by his counsel, that there was no sufficient consideration to support the promise. Without questioning the correctness of the doctrine that a mere gratuitous promise is a nudum pactum and not binding in law, it is necessary to inquire if the erection of the building, the object for which the subscription was made, does not fix his liability to the mechanic who performed the work? The intention of the subscribers, as shown by the agreement, was the erection of a building for a church and school; an object certainly laudable, and very likely to be beneficial to them. The subscribers, in making the subscription payable to a part of their number, as trustees, evidently intended to...