Rogers v. Galloway Female College

• Decision Date: 22 January 1898
• Citation: 44 S.W. 454,64 Ark. 627
• Parties: ROGERS v. GALLOWAY FEMALE COLLEGE
• Court: Arkansas Supreme Court

44 S.W. 454

64 Ark. 627

ROGERS v. GALLOWAY FEMALE COLLEGE

Supreme Court of Arkansas

January 22, 1898

Appeal from White Chancery Court, THOMAS B. MARTIN, Chancellor.

Decree affirmed.

Cockrill & Cockrill, for appellants.

There can be no recovery upon the note sued on, because the college was located outside of the town of Searcy. "In," as used in this case, means "within" or "inside of." Century Dict., definition of "In" Webster's Dict., definition of "Within"; 2 Parsons, Cont. § 527; 30 Ark. 186; 82 Tex. 553, 559; 32 Md. 37. So with the preposition "at." 1 Ark. 171 180, 181; 3 Cranch (C. C.), 599, 606; 1 Bish. Dir. & Forms § 80; I Bish. Cr. Pro. § 378; 30 Tex.App. 416; 53 L. J. Q. B. 437; 91 U.S. 348; 72 Miss. 960; 81 Me. 63; 85 Me 17, 28; 8 L. R. C. Div. 738. But "in" is stronger than "at." 51 Wis. 62, 71; Standard Dictionary, "At"; 30 Ark. 186; 41 Ark. 213; 43 Ark. 184; 54 Ark. 316, 318, 319. There can be no reformation of a contract, except in case of a mutual mistake. 39 Ark. 301, 304; 26 Ark, 28; 2 Beach, Equity, § 544, Bispham, Eq. § 546; 40 Ill.App. 96; 49 Ark. 425. Plaintiffs acquiesced in the contract in its present form, and are bound thereby. 59 Ark. 251. The evidence shows that it was the intention of the parties that the condition should be performed, and so it is binding. 1 Story, Cont. § 32; 48 Kas. 283; 1 Beach, Cont. § 726; 55 Ark. 18, 20; 55 Ark. 112; 28 Ark. 282, 285; 23 Ark. 9; 15 Ark. 543, 549; 52 Mo. 546. Even if the alteration in the note was unauthorized, the retention of it ratified it. 2 Thomp. Corp. § 1367; 55 Ark. 112. A gratuitous subscription is only a continuing offer to make a gift, and, if withdrawn before it is acted upon by the promisee in such manner as to raise a consideration, it cannot be enforced, 1 Whart. Cont. § 518, 528, p. 718; 16 Am. Law Reg. 549; 1 Beach, Cont. § 206; 121 Mass. 528; 140 Ill. 248; 117 N.Y. 601; 70 Cal. 158; 84 Pa.St. 388; 161 U.S. 646, 666. Neither the mutual promises of the subscribers, nor the efforts of the intended donee to obtain the subscriptions, constitute a consideration. 1 Parsons, Cont. § 454; 16 Am. L. Reg. 550; 32 Conn. 412; 112 N.Y. 517, 521, 522. The obligation to pay the subscription note was dependent on the obtaining of the total amount of subscriptions. 30 Ark. 186; 84 Pa.St. 388. The burden of proving the performance of this condition precedent was on appellee. 1 Whart. Cont. § 601, 554. When a subscription is made on condition that other subscriptions be first made, this condition must be fulfilled, and that without collusion or secret understanding. 20 Vt. 509; 31 N.Y. 273; 1 Wharf. Cont. 529; 1 Pars. Cont. 454; 2 Thompson, Corp. § 1956. There can be no recovery on the original subscription, because: (1) The oral contract is merged in the note, and the terms of the latter can not be varied by parol; and hence, the suit on the note failing, the controversy ends. (2) The plaintiffs were neither parties nor privies to the original contract. 74 N.Y. 77; 140 Ill. 248; 35 Me. 405; 2 Beach, Corp. § 512. (3) The original subscription was void for non-compliance with conditions precedent. The subscription is also void because the college was not located by the committee agreed upon.

J. N. Cypert, Green & Hicks, W. B. Smith and J. W. House, for appellee.

For definitions of "at" and "in," see Webster's International Diet.; Standard Dict. The testimony does not indicate that the intention was that the college was to be within the corporate limits of the town; and since the change from "at" to "in" was made by appellant, the court should have reformed the note, so as to conform to the original undertaking. 2 Beach, Eq. 544; 2 Pomeroy, Eq. Jur. 847, 870; 47 N.J.Eq. 218; 69 Md. 437; 44 N.Y. 525; 28 N.Y. 310; 2 Curt. (U.S.) 277; 49 Ind. 490; 105 Pa.St. 555; 55 N.Y. 240; 46 Am. & Eng. R. Cas. 232; 29 S.W. 669; 36 Kas. 41; 62 Ark. 143. Appellant never withdrew his offer to subscribe, and, besides, when the subscription was presented and accepted, the contract was closed, and he had no power to withdraw it. The appellee assumed an obligation, and this was a consideration. 1 Beach, Cont. 65; Cook, Stock & Stockholders, § 84; 24 Ark. 201; 25 Am. Rep. 511; 112 U.S. 327; 12 N.Y. 25; 121 Mass. 528; 40 Ill. 379; 83 N.Y. 26; 15 O. St. 334; 29 Mo. 320; 20 O. St. 197; 32 S.W. 716; 59 Tex. 438; 6 Pick. (Mass.) 433; 12 Pick. 541, 544; 44 Am. & Eng. Ry. Cas. 251; 1 Beach, Corporations, § 109; 2 ib. 532; 70 Cal. 158; 17 Am. Dec. 387; 25 Am. Rep. 510; 33 Am. Rep. 384; 40 Ill. 379; 34 Vt. 189; 20 Pa.St. 260; 2 Denio, 416; 49 N.W. 157; 59 N.W. 515; 42 N.W. 17; 73 Me. 143; 3 A. 430; 9 Cush. 539; 5 Pick, 509; 24 Vt. 192; 27 Wis. 214; 95 Ind. 279; 16 Ind. 370; 36 ib. 375; 53 ib. 326. Expenses had been incurred; hence there could be no withdrawal. 112 U.S. 327; 12 N.Y. 25; 32 S.W. 716; 15 S.W. 413; 25 Am. Rep. 511. The fact that the appellee agreed to require less than the full amount of the contemplated subscription was no fraud on appellant's rights, and he, having been present at the presentation of the subscription paper, and acquiescing in same, is estopped to complain of such insufficiency of the subscription. 58 Mo.App. 391; 10 A. 536; 23 Ill.App. 496; 15 S.W. 413; 59 Vt. 420. The condition as to subscription of $ 25,000 by each of four parties was complied with, and appellant is bound by his subscription.1 Beach, Corp. 109; 2 ib. 543; Cook, Stock and Stockholders,137 and 138; Thompson, Liability of Stockholders, 122, 123 and 124; 34 Pa.St. 362; 24 Mich. 403; 24 Vt. 477; 59 Vt. 419, 420. The subscription list constitutes a written contract. 64 N.W. 412. Even if it was a Sunday contract, it was ratified, and is enforceable. 38 Am. Rep. 159. This contract is not within the statute of frauds, and, besides, the statute is not pleaded. 56 Ark. 245. The taking of the note did not extinguish any right of action on the original subscription. 14 Wis. 16. Only a substantial compliance is demanded, in order to make this contract binding. 20 Ark. 463.

WOOD J. BATTLE, J., dissenting.

OPINION

WOOD, J.

This suit was to recover of one T. J. Rogers $ 2,500, the amount of a subscription to the Methodist Episcopal Church, South, alleged to have been given for the purpose of locating, building and maintaining a female college at the town of Searcy. The defense was that the promise was made on three conditions, viz: (1) "That three citizens of Searcy, other than himself, should subscribe $ 2,500 each; (2) that an aggregate of not less than $ 25,000 should be subscribed by the citizens of Searcy; and (3) that the college should be located within the then corporate limits of the town of Searcy," --neither of which had been performed; also (4) that the offer to subscribe was withdrawn before it was accepted; and (5) that there could be no recovery upon the original subscription.

We will consider these in the order they are presented by counsel.

First. Was the subscription upon condition that the college should be located "within the corporate limits of Searcy?"

The chancellor found "that Thos. J. Rogers, in his lifetime, to-wit, on or about the 27th day of February, 1888, subscribed the sum of $ 2,500 for the purpose of inducing the location, building, and maintaining a college for the education of females at the town of Searcy," etc.

In the latter part of the year 1887 the Methodist Episcopal Church, South, through its three annual conferences of the state, appointed a committee, "with unrestricted authority," "to consider the educational interests of the church in Arkansas, and to provide for the establishment of a female college, to be under the patronage of the said conferences." Several towns of the state were spoken of as suitable for the location of such a college, and were competitors for it. Among the number was Searcy. A few of its citizens invited Bishop Galloway, who was the presiding bishop of the conferences in Arkansas, to deliver an address at Searcy, which he did on Sunday the 26th day of February, 1888. At the close of his address, he gave an opportunity to the people there assembled to subscribe to a fund for the purpose above indicated. Eugene Cypert acted as secretary or recorder, putting down the names of the subscribers and the amounts subscribed. The bishop staged that he "thought a bonus of $ 25,000 was necessary," and that, while he could not "speak authoritatively for the commission," he "felt sure that bonus would secure the college." Much testimony has been adduced pro and con upon the question of whether the bishop in making the proposition, and Rogers in accepting it, for a subscription to the location of a college, used the words "in Searcy," or the words "at Searcy." As to what particular word was employed is purely a question of fact. The proof is ample to support the finding of the chancellor that "at Searcy" was used.

But it is argued that Rogers subscribed upon condition that the college was to be located in Searcy, meaning within the corporate limits," and that such was the contract even if at, instead of in, was employed to express it. The preposition "at," when used to denote local position, may mean "in, on near, by, etc., according to the context; denoting usually a place conceived of as a mere point: * * * so with names of towns, as, at Stratford, at Lexington; * * * but if the city is of great size, in is commonly used, as, in London; * * * unless, again the city is conceived of as a mere geographical point, as our financial interests center at New York." Century Dict., "At." "With the names of cities and towns the use of at or in depends not chiefly upon the size of the place, but upon the point of view; when we think merely of the local or geographical point, we use at; when we think of inclusive space, we employ in; as, we ar...