E. States Agricultural & Indus. League v. Vail's Estate

• Decision Date: 07 May 1924
• Parties: EASTERN STATES AGRICULTURAL AND INDUSTRIAL LEAGUE v. VAIL'S ESTATE.
• Court: Vermont Supreme Court

124 A. 568

EASTERN STATES AGRICULTURAL AND INDUSTRIAL LEAGUE

v. VAIL'S ESTATE.

Supreme Court of Vermont. Caledonia.

May 7, 1924.

Exceptions from Caledonia County Court; Julius A. Willcox, Judge.

Proceedings by the Eastern States Agricultural and Industrial League against the estate of Theodore N. Vail, deceased. Prom a judgment of the county court for plaintiff, defendant brings exceptions. Affirmed in part, and cause certified to probate court for further proceedings.

See, also, 96 Vt. 415, 121 Atl. 415.

Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ.

George B. Young, of Montpelier, for plaintiff.

W. B. C. Stickney and E. W. Lawrence, both of Rutland (Nathaniel T. Guernsey and Neal M. Monroe, both of New York City, of counsel), for defendant.

TAYLOR, J. This is an appeal from the allowance by commissioners of a claim against the estate of the late Theodore N. Vail. The trial was by the court, and the plaintiff had judgment on the facts found. The defendant argues on review certain exceptions to the judgment, to the admission of evidence, and to the findings of fact.

The claim in litigation is based on a subscription agreement signed by Mr. Vail and others as contributors to a fund being raised for the use and benefit of the Boys' and Girls' Department of the plaintiff, hereinafter referred to as the League, of which the name was later changed to the Junior Achievement Bureau. Mr. Vail had been identified with the plaintiff corporation, was its vice president, and was particularly interested in the work carried on in this department, being chairman of the committee having charge thereof. In conjunction with the president and general manager of the League, he had devised plans for work with the boys and girls in the ten Eastern States. In May, 1919, he submitted the plans to a Mr. Benson, who was engaged in boys' and girls' work under the government, and solicited him to give up his position in Washington to act as director of the proposed department of the League. The negotiations resulted in a meeting in Springfield, Mass., on September 5, 1919, of persons who had become interested in the movement. Mr. Vail presided over and addressed the meeting. At his request Mr. Benson submitted a program of proposed work covering a period of five years and requiring $50,000 for the first year. As a result of this conference, the agreement on which the plaintiff's claim is based was prepared and executed. We quote so much of it as is material to the review:

"Agreement made this fifth day of September, 1919, between the Eastern States Agricultural and Industrial League, a corporation (hereinafter referred to as the. League), party of the first part, and those persons, firms and corporations who shall, by subscribing to this instrument or to duplicates thereof, become parties hereto (hereinafter referred to as the subscribers), parties of the second part. This agreement witnesseth: That the subscriber, each for himself and not for any other subscriber, on condition that the sums paid hereunder shall be used by and for the benefit of the Boys' and Girls' Department of said League, hereby agree with the other subscribers that they will contribute and pay to the League annually during the calendar years 1920, 1921, 1922, 1923 and 1924 a sum not exceeding the amount set opposite their respective names. It is understood that the agreement entered into hereunder by the subscribers shall be subject to the following provisions, conditions and limitations, to wit:

"(1) The liability of the subscribers shall be several and not joint * * * and his obligation to pay shall not be fixed and binding until bona fide subscriptions to the amount of fifty thousand dollars annual payments shall have been made.

"(2) The League shall not demand of the subscribers nor shall the said subscribers to this contract be required to pay a total aggregate sum of more than fifty thousand dollars the first calendar year, and thereafter annually only the proportionate amount which the appropriation for said Boys' and Girls' Department of said corporation for the particular year shall bear to the aggregate subscriptions hereto. * * *

"(3) The amount agreed or required annually to be paid by each subscriber shall be due and payable to the treasurer of the League at its office in Springfield, Massachusetts, in five equal payments each upon a written demand therefor made by the treasurer at least ten days prior to the date specified for such payment. In consideration of the foregoing, the League agrees with the subscribers and each of them that all money received by it, in accordance with the provisions of this agreement, shall be used in the Boys' and Girls' Department of the League, and shall be applied to the support, maintenance, and extension of the work carried on in the Boys' and Girls' Department. This agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators and successors of the prospective parties hereto."

The agreement was executed by the plaintiff and by Mr. Vail and 15 other subscribers who were present at the meeting. The sums there pledged aggregated $44,000, of which Mr. Vail subscribed $15,000. The writing bears one seal affixed opposite Mr. Vail's signature. It recites that the subscribers have adopted one seal as a common seal. Subsequent to September 5, 1919, and prior to the date of Mr. Vail's death, which occurred April 16. 1920, nine subscriptions amounting to $3,100 were obtained to the original agreement. During the same time thirteen additional subscriptions, aggregating $2,700, were made by individual agreements which, except as to date, were, in the language of the finding, "exact counterparts" of the original agreement. None of the foregoing subscriptions are questioned except that of McCullum Hosiery Company of $100. The defendant claims a shortage of $300 in the amount of subscriptions necessary to give the contract force as against Mr. Vail or his estate. Whether there was such a shortage depends upon the effect to be given other subscriptions. In response to a letter written by Mr. Moses, the plaintiff's president, Simonds Manufacturing Company responded October 14, 1919, by letter inclosing a check for $1,000 in lieu of an annual subscription of $200, stating that it was all paid at once, as they did not care to have the matter come up each year. Likewise, under date of October 30, 1919, Harry S. Kelsey addressed a letter to Mr. Moses as president of the Strathmore Paper Company, in which he directed Mr. Moses to "record my yearly pledge of $500 for a term of five years toward the Boy and Girl Extension Work." These subscriptions are challenged as not answering the requirements of bona fide subscriptions under the original agreement, and that of the Simonds Manufacturing Company (as also the subscription of the McCullum Hosiery Company, referred to above), on the further ground that the power of the company to make such a donation and the authority of the person assuming to act for it had not been shown. Subsequent to Mr. Vail's death, subscriptions aggregating $5,850 were obtained to the original agreement; and two subscriptions of $500 each, one June 12, 1920, and the other July 28, 1920, were made by individual agreements in the same form, as the original agreement. It is claimed that none of the subscriptions secured after Mr. Vail's death can be relied upon to charge his estate; that Mr. Vail was not bound under the contract in his lifetime; and that until bona fide subscriptions to the amount required had been made the agreement was revocable and as to Mr. Vail was revoked by his death.

Subsequent to September 5, 1919, Mr. Vail continued to act as chairman of the boys' and girls' committee, and the activities of the department were carried on to the time Of his death under his immediate supervision. He told Mr. Benson he had been informed by the president of the League that the amount specified in the subscription agreement had been provided, and prevailed upon him to give up his position in Washington and to take the position of director of the Boys' and Girls' Department. Mr. Benson entered the employ of the plaintiff as of December 11, 1919, under a contract for five years. In conjunction with Mr. Benson and with the president and manager of the League, Mr. Vail prepared and approved the financial budget for the year 1920, involving an expenditure of $50,000. He called a meeting of the contributors, at which he outlined the program of the work of the Department, and after it was agreed upon personally participated in incurring the expenses thereof. Relying upon the subscriptions, including that of Mr. Vail, the plaintiff leased offices, purchased furniture and equipment, hired clerks and permanent field workers, and incurred large expenditures for the purposes of the Boys' and Girls' Department.

The proportionate share of the expenses of the Department for the year 1920 on account of Mr. Vail's subscription was $11,400. He had paid $4,250 as called for before his death. In December, 1920, his executors paid the balance of the first year's assessments with the understanding that it was received without prejudice to, or waiver of, the rights and liabilities of the defendant under the contract or the claims now relied upon. The plaintiff expended and incurred obligations in connection with the Boys' and Girls' Department amounting to $69,161.50 during the year 1921, a sum in excess of the total annual subscriptions, including that of Mr. Vail. Demand was made on the defendant in accordance with the provisions of the subscription agreement. At the time of the hearing in February, 1922, no other assessments had been called for. The court found the plaintiff entitled to recover up to that time $15,000, for which with accrued interest it had judgment. It found further that the defendant would be liable under the subscription agreement to...