Rouff v. Washington & Lee University

• Decision Date: 29 January 1932
• Docket Number: No. 9647.,9647.
• Citation: 48 S.W.2d 483
• Parties: ROUFF et al. v. WASHINGTON & LEE UNIVERSITY.
• Court: Texas Court of Appeals

Page 483

48 S.W.2d 483

ROUFF et al. v. WASHINGTON & LEE UNIVERSITY.

No. 9647.

Court of Civil Appeals of Texas. Galveston.

January 29, 1932.

Rehearing Denied February 25, 1932.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action by the Washington & Lee University against Melvin Rouff and another, executors of the estate of Henry S. Fox, Jr., deceased. From judgment for plaintiff, defendants appeal.

Affirmed.

Wagner & Wagner and T. W. Grobe, all of Houston, and Sonfield & Sonfield, of Beaumont, for appellants.

C. A. Teagle of Houston, for appellee.

GRAVES, J.

Appellants' brief makes this statement concerning the cause:

"This is a suit against the Executors and Executrix of the Estate of Henry S. Fox, Jr., deceased, seeking to recover on a subscription made by Henry S. Fox, Jr., to appellee university.

"The facts in the case are undisputed.

"Appellee alleged that it engaged in raising a fund by public subscription `for the purpose of founding and endowing the Robert E. Lee School of Civil & Highway Engineering at the Washington & Lee University at Lexington, Virginia, and as a part of said institution. * * * That it was contemplated by this plaintiff that the sum of five hundred thousand ($500,000.00) dollars would be necessary to the creation and support of said school and the erection of the necessary building.'

"The Secretary and Treasurer of Appellee testified that the original plan for seeking subscriptions for the Robert E. Lee School of Civil & Highway Engineering provided for securing subscriptions of five thousand ($5,000.00) dollars from each individual, these subscribers to be known as `founders' of the school.

"On October 8, 1920, on the solicitation of Dr. Henry Louis Smith, President of appellee university, Henry S. Fox, Jr., executed the following:

"`The Lee Memorial Fund.

"`It is my desire and purpose to become one of the hundred Founders of the Robert E. Lee School of Civil & Highway Engineering.

"`In fulfillment of this purpose and in consideration of the gifts of others, I hereby subscribe to the Lee Memorial Fund Five Thousand Dollars, this sum to be paid to Washington & Lee University as follows: On or before June 1, 1921.

                     "`[Signature] Henry S. Fox, Jr
                "`[Mailing Address] Houston Natl. Ex
                                       Bank
                                "`Houston, Texas.'
                

"Appellants pleaded limitation (which plea, however, was abandoned); that the subscription contract was an executory agreement to make a gift or donation in the future, was unilateral and without consideration; that the school not having been founded or established at the date of the death of Henry S. Fox, Jr., the subscription was revoked by his death, and cannot be enforced against his estate.

"Appellants further pleaded that the subscription was conditioned upon appellee's procuring one hundred (100) founders of said school, which appellee had not done at the date of the death of Henry S. Fox, Jr., or thereafter, and that the Robert E. Lee School of Civil & Highway Engineering has never been founded or established in appellee university.

"The trial was to the court without a jury, and judgment was rendered in favor of appellee for the amount of the subscription, with interest from the date same was due and payable, to which judgment appellants in open court duly excepted and gave notice of appeal to this Honorable Court.

"On motion of appellants, the court filed conclusions of law and fact, and on further motion of appellants the court filed supplemental and additional findings of fact."

To this the appellee adds the following:

"The subscription set out in the statement shows on its face that it was unconditional, and no evidence was offered that it was based on a condition.

"No pleading was filed raising the issue as to reasonable time in which to carry out the project, no evidence was offered on that issue, and no finding made by the trial court on said issue.

"The uncontradicted testimony shows that more than $11,000.00 was spent by appellee for equipment, machinery, and etc., in the school of highway engineering, and two full-time professors engaged at a salary of $5,000.00 each, all of which was done after the subscription was obtained and prior to the death of Fox.

"The facts were undisputed that Fox wrote letters as late as January 1st, 1925, ratifying his subscription, and requesting an extension of time for its payment."

On the appeal the parties agree upon the law, as thus stated in appellants' first proposition: "The subscription sued on herein for the founding or establishing of the Robert E. Lee School of Civil & Highway Engineering made by Henry S. Fox, Jr., during his lifetime, was an executory gift, was unilateral and without consideration, and same was subject to revocation at the date of the death of Henry S. Fox, Jr. and can not be enforced against his estate, unless such school was founded, or expenditures were made, or enforceable liabilities incurred, prior to his death, on the faith of the subscription, in the founding or establishing of the said school in appellee university."

They likewise concur in the opinion that the true rule governing such a subscription is announced by the Supreme Court of Texas in Hopkins v. Upshur, 20 Tex. at page 94, 70 Am. Dec. 375, where this is said: "At the time Upshur made and delivered the subscription to Durham, it is true that the Vestry did not and had not bound themselves to build the church. And it is also true that there was no consideration then executed. It may well be admitted that there was at that time no cause of action against Upshur. When and by what acts, then, did it accrue? The answer is, when the Vestry assumed liabilities and incurred expenses in building the church, upon the faith of the subscription."

While appellant assails the recovery on a number of grounds — among them that no such agreed upon "school" had ever either been founded or started, nor had any liabilities or expenses been assumed or incurred in that behalf upon the faith of this subscription, but on the contrary that all funds received from others for that purpose had been diverted therefrom by being used in enlarging the School of Applied Science in appellee university, and that strong probability of ultimate failure at all events of the whole project was at the time of this trial imminent through lack of sufficient funds — the correctness of the judgment seems to this court to depend upon whether or not, under the undisputed facts, (1) the contemplated "Robert E. Lee School of Civil & Highway Engineering" had been started, and funds expended in furtherance of that enterprise, prior to Mr. Fox's death, and (2) whether or not the several successive requests of Mr. Fox (in the way they were made) while yet living, requesting an extension of time within which to pay his subscription, amounted to such a ratification thereof as should estop his estate from claiming a release from it.

Accordingly, such of the facts as are thought to control these inquiries are thus recited:

The subscription was made by Fox, in writing, on October 8, 1920, payable on or before June 1, 1921. Each year thereafter, Fox, by letters, asked for an extension of his subscription solely because of his own inability to pay it, and as late as January 5. 1925, in response to its president's letter of January 1 of that year to him, again likewise wrote to the appellee asking for another extension; these two letters being as follows:

                                  "January 1, 1925
                "Mr. Henry S. Fox, Jr
                  "Houston National Exchange Bank,
                  "Houston, Texas.
                

"My dear Mr. Fox:

"You probably remember your letter of July 26th, a year ago, stating that it had been inconvenient, on account of bad financial conditions in your section, to pay your subscription of $5,000.00 to the Washington and Lee endowment fund, and asking us to extend the subscription to June 1, 1924.

"Now that the year 1924 has gone and financial conditions seem to have improved considerably, I am writing to express the hope that you can send us a check either for the whole of this subscription or for some part of it.

"Not only is the University in special need of these subscriptions, but continued delay in their payment is putting us in a rather serious financial situation, increased by the fact that their nonpayment prevents our receiving the generous donations of the General Education Board.

"I am enclosing a small bulletin for your wall, remembering your deep interest in General Lee and his veterans, and am looking forward with pleasure to your answer since I remember with much distinctness your warm-hearted interest and prompt response several years ago.

"With kindest regards and many good wishes, I am

                    "Sincerely yours,
                        "Henry Louis Smith, President."
                         "Houston, Texas, Jan. 5, 1925.
                "Mr. Henry Louis Smith, Pres.,
                  "Washington & Lee University,
                  "Lexington, Virginia.
                

"My dear Doctor Smith:

"I am in receipt of your letter of the 1st inst., with reference to my subscription of $5,000.00 to the Washington and Lee Endowment fund. It pains me exceedingly to have to advise that as yet financial conditions with me are such as to preclude my taking care of this obligation at this time.

"When I wrote you a year ago, this section of the country had sustained severe losses among cattle due to recurrent freezing weather, and I was among the heaviest losers, and this year when things looked a little brighter we again encountered bitter weather which took even a greater toll than formerly, as you may have noticed from the news dispatches.

"I fully realize the embarrassment resulting to the University by failure to receive such subscriptions as mine, and will say that I will do my utmost to take care of my obligation at the earliest possible moment.

"With kindest regards and best wishes, believe me to be,

                     "Sincerely yours,    Henry S. Fox, Jr."
                

During those years in which his subscription...